Timing Your QDRO for Success

Ostanek v. Ostanek, Slip Opinion No. 2021-Ohio-2319

Issues with division of retirement accounts are seemingly springing up all over the place. At heart in most of these cases is a domestic relations order. Those are the orders of court that instruct an entity to, in short, divide the retirement funds. And since many people that have these retirement divisions are finally reaching retirement age, they are findings issues with the orders. Below is an example of an issue in the Ohio courts.

• Facts: Husband and Wife divorced and as part of their divorce they entered into an order that Husband’s pension with the Federal Employees Retirement System (FERS) would be divided 50/50, and that jurisdiction would remain with the trial court to enter a qualified domestic relations order (QDRO) to effectuate that division. Their divorce decree was entered in 2001. In 2013, a proposed QDRO was submitted to the court for submission to the Office of Personnel Management, which administers FERS. The proposed QDRO was entered and submitted as planned, and OPM qualified it. The QDRO directed OPM to pay Wife 50% of the marital portion of Husband’s FERS pension. That marital portion was calculated using a coverture fraction, which is the presumption in Ohio. The QDRO also ordered that Husband pay a portion of survivor benefits. Neither the method of calculating the marital portion of the pension nor the survivor benefit were discussed in the divorce decree. Shortly after the QDRO was entered, Husband retired and was sent information by OPM regarding the payments to Wife. Husband then filed a motion to vacate judgment in 2018. The motion was denied. This case made it all the way up to the state supreme court. The primary issues were whether the QDRO could order the usage of the coverture fraction and order Husband to pay for the survivor benefit when the divorce decree did not contemplate either.

 

• Lessons and Observations:
  2013. As with many of these issues with division of retirement accounts, it stems from timing and drafting of the QDRO. In this case, there was some massive delay from the time in which the divorce decree was entered (2001) and the time in which a QDRO was drafted and entered (2013). Apparently, the only reason one was drafted at all was because someone realized that Husband was retiring in 2013. A sub-issue in this case also stemmed from service of the QDRO, as Husband listed his last known address as his mother’s, while all parties had actual notice that Husband did not live with his mother in 2013 but rather in DC. Regardless, a timely drafted QDRO may have avoided all the subsequent litigation.