03 May How to get an ex-spouse’s pension

Q. A friend of mine just retired. She has been divorced for many years. Her divorce decree said she is to receive half of her ex’s pension. The ex retired two years ago but they have absolutely no contact. How does she go about getting the money owed her? She doesn’t have much and doesn’t want to hire an attorney.
— A good friend

A. Your friend is going to have to take action.

She should have started to receive her share of her ex-husband’s pension the moment that pension went into pay status, said Kenneth White, a certified matrimonial attorney with Shane and White in Edison.

Specifically, White said, within your friend’s property settlement agreement or final judgment of divorce there should have been controlling language.

“Such language would have indicated that so much of her husband’s pension benefits that accrued during their marriage were to be distributed equally between the two of them,” he said.

Further, he said, there was likely language requiring that a Qualified Domestic Relations Order (QDRO) would need to be drafted and subsequently filed with the court to assure the equitable distribution of the retirement benefit.

White said while equitable distribution of most assets are controlled by the final judgment of divorce, the administrator in charge of the pension plan will require receipt of a gold-sealed, filed copy of a QDRO to take steps to administrate the equitable distribution of such retirement benefits.

Generally, the drafting, filing and serving of a QDRO takes place within three to nine months after the entry of a final judgment of divorce, he said.

“If you friend never began receiving her fair share of the pension benefits when the same went into pay status it is likely that a QDRO was never prepared, filed with the court and/or served upon the plan administrator,” he said. “The failure to take such steps was an error committed by someone.”

For your friend to be made whole, White said she must take steps immediately to see that the QDRO is prepared, filed and served upon the plan administrator.

Unfortunately, this will require the assistance of her ex.

“In the event her ex will not cooperate she must file a notice of motion with the court with a proposed form of order and a supporting certification,” White said.

While she may be reluctant to hire an attorney, there is probably a fair amount of money at stake and knowing how to properly prepare and file such papers is a learned skill, White said. She should really hire an experienced family law attorney.

White said your friend also has a claim to recover her share of the retirement benefits that have been paid out to date from the pension plan to her ex-husband.

“Either her ex-husband can cooperate and release such funds directly to her or she must file a motion with the court, with supporting papers, to secure the relief she is entitled to,” White said.

In the end, if your friend puts forth the effort to secure what she is due, she will likely receive it, White said.

“Such issues are not particularly complex, it is just a matter of knowing how to dot each `i’ and cross each `t,’ provided the terms of her property settlement agreement or final judgment of divorce did in fact award her half of the pension benefits amassed in the name of her ex-husband during the course of their marriage,” White said.

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