Discussions of what Virginia Code §20-107.3(K)(4) does and does not allow in the way of orders dividing pensions after a divorce. Bradley v. Bradley, 39 Va. App. 108, 570 S.E.2d 881 (2002), Fahey v. Fahey, 24 Va. App. 254, 481 S.E.2d 496, 11 VLW 958 (2/25/97), Myers v. Myers, 16 VLW 524 (10/2/01).
PENSIONS — JURISDICTION — LATE QDROS. Of course the enormously practical statutory amendment codified at §20-107.3(K) allows the divorce court in an ended equal distribution case to enter a Qualified Domestic Relations Order to effectuate the pension-dividing power and intent of the court despite the passage of 21 days and all that. But what about a case in which the court, by order, expressly gave itself only 60 days to get that QDRO entered? Is the Court of Appeals going to seize upon that and say that the court's jurisdiction expired, notwithstanding the statute? Apparently not, for now, according to an unpublished opinion called Myers v. Myers, 16 VLW 524 (10/2/01). The decree in this case provided that the court would keep this matter on its docket for 60 days for QDRO-entry purposes "to give effect to ... the parties' written agreement." Then the court entered the QDRO several months later. The appellate court says the trial court could not cut off its own jurisdiction and override the statutory grant of authority. Moreover, this was not the adjudication of pension division, but just the implementation.
PENSIONS — LATE QDRO — MODIFICATION. Code §20-107.3(K)(4) was adopted so that a court could reopen a case more than 21 days after the divorce decree to enter a qualified domestic relations order (QDRO) to effectuate the pension-dividing intent of its original divorce decree. It was not put there to let courts modify the pension-division decision for change of circumstances, the Court of Appeals points out in Fahey v. Fahey, 24 Va. App. 254, 481 S.E.2d 496, 11 VLW 958 (2/25/97). The problem arose understandably enough, since the original and timely QDRO, a consent order, distributed the pension to give wife "one-half of the accrued value of the Plan as of July 28, 1994," and the Plan Administrators two months later simply divided the Plan in half as it then stood. Because the account had increased in value by one-third since July 28, the wife got the circuit court to issue a new QDRO giving her "one half of the shares of the Plan as of July 28, 1994, together with any appreciation ... since that time until the time of distribution." Just can't do that, the appellate court says.
PENSIONS -- LATE QDRO. Virginia's late-QDRO statute, §20-107.3K, allows a divorce court to issue a Qualified Domestic Relations Order (QDRO) months or even years after the final decree in order to fulfill an employer's formal requirements for a particular kind of court order. It does not, however, allow the court to confer new benefits on a non-employee spouse that were not part of the intent embodied in the original decree. That's what the Court of Appeals told a disappointed ex-wife in Bradley v. Bradley, 39 Va. App. 108, 570 S.E.2d 881 (2002). The wife sought pre-retirement survivor benefits in this new QDRO, but conferring those would be to modify the original decree in view of changed circumstances. Rather, the new Order must be consistent with the substantive provisions of the original decree. The original decree contemplated a particular defined benefit retirement plan that the husband had through his union, and that plan ended when it was merged with a successor retirement plan, and the wife contended that nothing in the original decree had actually said that the benefits were limited to those available through the plan the husband had at the time of the divorce. The decree did not specifically limit the concept of survivor benefits to post-retirement benefits either, but a judge in applying §20-107.3K can only be so creative.