26 Jul After divorce, my ex is suing me over lower pension benefit. Can she?

Q. I was divorced 14 years ago after being married for 24 years. My ex-wife’s attorney prepared the Qualified Domestic Relations Order (QDRO), splitting my accrued pension benefit 50/50. We would each get $1,187 at retirement age. I recently found out that the QDRO wasn’t written to lock in for my ex-wife’s benefit but used the Hunt formula, which allows her benefit to be enhanced if market conditions improve and the pension benefit rate increases. The problem is that if market conditions decrease, so does her benefit. So now her benefit has fallen to $407 per month and continues to fall. She is now suing me to make up the difference. During our marriage, the pension plan was earning 3.6% per year but it’s been about 1% for the past 10 years. If she wins, she will basically wipe out my entire benefit. What can I do?
— Worried

A. We’re sorry to hear about these troubles.

It’s an interesting predicament that can unfold in more than one way.

First and foremost, whenever a dispute arises following a divorce, attorneys and judges look to the plain language of either a marital settlement agreement or judgment of divorce, said Matheu Nunn, co-chair of the family/matrimonial practice at Einhorn Barabito in Denville.

He said generally speaking, unless the parties have a divorce trial, the judgment of divorce does not contain substantive terms other than granting the divorce.

“In your case, we would want to see how you — the parties — negotiated the settlement with respect to division of the pension,” he said. “Was it ambiguous — could it lead to more than one interpretation — or was it clearly drafted?”

For example, Nunn said, everyone would look to see if the agreement lacked clarity as to whether the 50/50 division should have been based on the then-existing accrued benefit or whether your ex-wife could elect the benefit option she ultimately chose. However, resolution of this issue is only part of the equation, albeit an important one, he said.

You said subsequent to the divorce, a Qualified Domestic Relations Order (QDRO) was prepared.

The QDRO would have been provided, in draft form, to either you or your attorney, or both — or at least it should have been, Nunn said. You or your attorney would have or should have had the opportunity to review and make proposed edits to the QDRO before it was sent to the employer for implementation, he said.

From the way you tell it, the issue appears to derive more from your wife’s attorney who, based on your question, may have created a drafting or interpretation issue.

Nunn said it appears that your wife’s attorney drafted the QDRO in a way that could have theoretically helped or hurt your ex-wife. That is a risk they took when they drafted the QDRO.

“Unless your settlement agreement clearly denotes how this issue should have been treated — did the settlement agreement specifically exclude the downward spiral variation — and there now exists a `mutual mistake’ between you and your ex-wife, her best recourse may be against her attorney and not against you,” Nunn said. “In other words, unless the outcome that resulted from her attorney’s QDRO is not something that she could have or should have contemplated when the QDRO was drafted and sent to the retirement plan, your ex-wife may be stuck with the outcome.”

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This story was originally published on July 26, 2022.

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