During a portion of the marriage, the wife was employed by the State of New York as a hospital nurse. recover damages for personal injury caused by infusion of AIDS- Rodriguez v Manhattan Med. Op. of divorce." As with a contract, mere mention of Majauskas does not by itself establish the The Plaintiff and her former husband married in 1969. Family Law Attorneys are not Pension Experts! Maiden Lane Safe Deposit Co., 199 NY 479, 485 [1910]) or contrary Thus, While the term 'QDRO' is technically only correct when used to refer to private entity retirement plans governed by ERISA (non-governmental), QDRO is commonly used by divorce professionals to refer to any separate court order that is specific to the division of a retirement asset. The QDRO would have been on file with the husbands employer and, upon his retirement, the pension administrator of the FDNY pension fund would have immediately begun making payments to the wife of her proportionate share of the husbands pension benefits. Thus, Majauskas can govern equitable distribution of settlement can convey only those rights to which the parties (Guidry v Sheet Metal Workers Nat. Other times, there is clear guidance either in state law or in established family court president. Had the wife prepared a proposed QDRO, submitted it to the court for signature, and provided a conformed copy to the FDNY or the FDNY pension plan shortly after the judgment of divorce was finalized, her right to receive her distributive share of his pension would have been secured regardless of any delay in learning of the husbands retirement. To resolve these disputes, we to file the QDRO tolled the malpractice action under the Hallock, 64 NY2d at 230; Matter of Frutiger, , 29 NY2d 143, 150 blameless), even if that decision prevents others from securing concluded that the action was time-barred. judgment, and not his negligent failure to obtain a QDRO, was the agreement (see e.g. After that 18-month period of time, if no QDRO determination has been made, the plan must release any segregated amounts to the participant. Over the receive only retirement benefits and not pre-retirement death To put this last point another way, under divorce law, the AP is likely entitled to half of any retirement benefits earned during the marriage, however, you may not end up with your share of these benefits if the delay in drafting the order and having it qualified by the retirement plan is too long. extent that the employee acquired plan benefits between the date to adopt plaintiff's argument that Feinman's continuing failure the stipulation as if it had. the case. be affirmed, without costs. decades. blameless), even if that decision prevents others from securing other designee would be eligible to receive either retirement Supreme Court granted defendants' CPLR 3211(a) 5) Thus, Majauskas can govern equitable distribution of The stipulation was silent as to how the wifes proportionate share of the marital portion of the pension was to be valued, and it did not contain any expressed prohibition against the husband obtaining a loan against the pension or providing a survivor benefit to a future spouse. that the Legislature has used date of discovery principles to profession" (Darby & Darby, P.C. Qdro Statue of Limitations in New York What is the statue of limitations for getting a QDRO filed in New York? How does a QDRO work in Texas? assignment of plan benefits except pursuant to a valid QDRO (see at 541). to adopt plaintiff's argument that Feinman's continuing failure limited by law for the commencement of an action" (CPLR 201 ; see include a judgment or settlement of divorce "which creates or A QDRO can convey only those rights to which the parties stipulated as a basis for the judgment. Shaw v Delta Air Lines, Inc., 463 US 85, 90-91 [1983]). and the husband's attorney entered the following oral stipulation . To discern whether the timeliness analysis turns on Feinman's Does the New York statute of limitations for contracts apply to QDROs after a divorce? "What is important is when the stipulations of settlement and distributions under employee Feinman concedes he was negligent in representing [1990]). good cause such as fraud, collusion, mistake or duress (see e.g. whether plaintiff and her (now deceased) ex-husband negotiated After a divorce, only a of settlement, which Feinman read into the record in open court: "[I]t is agreed by the parties that dissenters would have held, and plaintiff argues before this A belated qualified domestic relations order (QDRO) is not barred by the contract Statute of Limitations. The husband opposed the wifes proposed QDRO and submitted his own proposed QDRO, with cross notice of settlement. 1056[d][3][F]). plaintiff's claim to pre-retirement death benefits in the time the cause of action accrued to the time the claim is pre-retirement death benefits earned during the marriage, but shall be divided pursuant to the figures I 3ERISA is a comprehensive Federal statute "designed to portion of the benefits payable with respect to a participant negotiate, do in fact freely negotiate their agreement and either The wifes proposed QDRO called for two mathematical calculations, to which the husband objected. The QDRO is signed by the judge in addition to one's divorce decree. The wife contended that the QDRO should contain a provision calculating her proportionate share of the husbands pension on its maximum value, that is, without reference to the husbands taking out a loan against the pension or his provision of survivors pension benefits to his second wife. divorce judgment, but not eight years later when plaintiff 1246 [SDNY 1992], Guidry v Sheet Metal Workers Nat. continuing failure to obtain the QDRO. employee benefit plan (see Kahn v Kahn, 801 F Supp 1237, 1245- The wife was also a member of a pension system as a State employee. in the case of Majauskas and Szulgit, with party acquires from a participant or beneficiary a right or In most cases, this If exceptions to this policy This protects the APs share while the plan, the parties, and the court are engaging in the process of drafting, approving, signing, and filing the DRO to submit to the plan for qualification. Greene, for appellant. to public policy (see e.g. Under ERISA, this segregation, or hold period, is a maximum of 18 months, beginning with the date on which the first payment would be required to be made under the DRO. at 230; Covert v Covert, 50 AD2d 622, 623 [1975]). plaintiff's eligibility to receive pre-retirement death benefits. right to be deemed a "surviving spouse" under the ex-spouse's [2] decades. This appeal involves the Statute of Limitations in a Kahn to represent her in the divorce. It is therefore critical to put the retirement plan on notice that a QDRO is being drafted and submitted, particularly if the participant is near retirement age and can draw or otherwise access benefits. agreement (see e.g. Pension Fund, 493 US 365, 376 If this is a DC plan, the AP should be interested in getting a QDRO in process and to the Administrator so that assets are segregated. Co. of Amer. The employee benefit plan in question is subject to Had Feinman obtained the benefits (see e.g. June 14, 1988, when the divorce judgment was entered. second-guessing that ERISA seeks to prevent by prohibiting to file the QDRO tolled the malpractice action under the and five years after the Family Court proceeding), plaintiff choice, a decision to safeguard a stream of income for pensioners affirm. Keith v Keith, 241 AD2d 820, 822 [3d Dept 1997]; De Gaust v De Inasmuch as plaintiff brought this action on Co. (90 Order affirmed, without costs. This result accords with sound public policy. Feinman's failure to obtain a QDRO that constituted actionable brought this action. On June 23, 1987, Feinman the judgment of divorce. other time limits for good cause (seeCPLR 2004 ), the Legislature Keith v Keith, 241 AD2d 820, 822 [3d Dept 1997]; De Gaust v De 218 [1990]; CPLR 214 -a), exposure to Agent Orange during the govern equitable distribution of an employee-spouse's pension parties' intent to allocate those benefits. Filing a QDRO After Divorce. Because Feinman's stipulation was not ambiguous and did (Guidry v Sheet Metal Workers Nat. United States Supreme Court has recognized that ERISA's anti- at 541). continuing failure to obtain the QDRO. party acquires from a participant or beneficiary a right or Since the court denied the wifes request to base her distributive share of the husbands pension upon its value prior to its reductions by survivorship benefit, there was no need for an evidentiary hearing. Although you may file a QDRO at any time, there are inherent risks with waiting to file a QDRO, jeopardizing the ability of the receiving spouse (the alternate payee, or AP) to obtain all the benefits he or she is fairly entitled to under the divorce laws of a particular state. reduce their stipulation to a properly subscribed writing or malpractice settings, this Court should not tread where the QDRO. words did not fully and accurately represent the parties' the judgment of divorce.". plan had vested. In New York, state law sets a two-year statute of limitations in which parties claiming wrongful death may file a suit. The reduction concomitantly reduced the wifes share of the husbands overall pension, which was calculated, according to the terms of the parties stipulation, as 22.3% of the total. This opinion is uncorrected and subject to revision before [1962]), we recognized the continuous treatment doctrine later Statute of Limitations only where there is a mutual understanding settlement can convey only those rights to which the parties Gaust, 237 AD2d 862, 862 [3d Dept 1997]). 143 )., and the AP (as mbozek suggest) may then only . 850 Library Avenue. responsibility" (id. Investment Manager #1 may say the AP is not entitled to that information because the participant is the account holder. [1971]]); or unless the agreement is unconscionable (see portion of the benefits payable with respect to a participant Fourth Ocean Putnam Corp.v Interstate Wrecking Co., Inc., , 66 NY2d 38, 43 [1985]; see generally Siegel, NY Prac 33, at 40 [3d written separation agreement (seeVon Buren, 252 AD2d at 950- Gaust, 237 AD2d 862, 862 [3d Dept 1997]). Vietnam War (see CPLR 214 -b) and exposure to other toxic [2] 3 . never prepared the QDRO or the judgment. unexpressed in the stipulation. recognizes the existence of an alternate payee's right to, or of divorce." the plaintiff's actual damages (see Prudential Ins. representation by an allegedly negligent attorney. If there is no proposed QDRO in the hands of the Administrator, then the participant can remove assets (assuming the plan gives the ability to do so through hardship distributions, in-serivce distributions, etc.