Qildro

[shonna1976]

My mother and father divorced in 2001. Very unfairly my father was awarded half of my mother's retirement. Per their divorce decree, the retirement is to be divided by qildro. My mom submitted a motion for reconsideration and my father submitted his opposition but for some reason a final ruling was never made.

Now, 7 years later - this should have all been done years ago - my father is taking my mom back to court to get the qildro issued. Qildro is specific to Illinois and is a court order that is sent to mom's retirment stating my father is entitled to a portion. Because of a certain law, for my mom's retirement agency to enforce a qildro, my mother has to sign a consent for the qildro to be issued. No one can sign the consent for her and the court can not compel her to sign it. By law, without that consent, the agency will consider it invalid and will not pay my father. My mother (for good reason) is refusing to sign it.

From what very little I have been able to find in situations like this, when there is a refusal to sign qildro, the court will order that the payments be made triangularly. Once again though, in the little I have found, all of this gets taken care of in a timely fashion. Can my father come back now 7 years later and request that the court now change the divorce decree to state that my mom has to pay him herself? Again, the decree specifically states that is to be divided by means of qildro.

- Side note: Apparently Mom's motion to reconsider is still on the table as well, but I'm trying to review all aspects of this and determine where my mom might stand. Mom hired an attorney but seems to have trouble getting actual contact with her to ask these questions.
I'm begging if anyone knows anything about this, do you think my mom has any chance at not having to pay him?

 

[shonna1976]

Does no one have any ideas on this? The first court date is scheduled for tomorrow, and the attorney won't speak to us on the phone without a 200.00 bill that we can't afford. She has in no way prepared us for what could happen and my mom is about to have a nervous breakdown. She has rheumatoid arthritis and can not work. She took early retirement as opposed to disability because someone (retirement agency, etc) told her my dad couldn't touch her retirement because too much time has passed. Now we find out maybe he can? If he takes half from her, she can't afford to live. Any thoughts on this would really be greatly appreciated.

 

[irish223]

I'm not a lawyer, but the following link seems to have information on the latest amendment to the Illinois Pension Code:

http://64.233.167.104/search?q=cach...qildro&hl=en&ct=clnk&cd=4&gl=us&client=safari

The following excerpt is taken from that link, and addresses your question:
The Consent Requirement
The member consent requirement in the original law is carriedover in the amended law. If retirement system membershipcommenced before July 1, 1999, the effective date of the original law, a QILDRO is valid only if the retirement system member consents in writing. The consent requirement addresses a potential violation of the pension protection clause of the Illinois Constitution.
Public employee retirement benefits are protected from diminishment or impairment under the Illinois Constitution which provides: "[m]embership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired."The consent, once executed by the member, is irrevocable.

According to the info, your mother's retirement should be protected if she never signed a consent, and she began contributing to the pension plan before 1999.

I hope this helps, and I wish you luck.

 

[shonna1976]

Most of that we are aware of, it's what the judge can make her do now (pay out of pocket, etc) that we are concerned about, but I'm very grateful you replied. This was my first post to this site and I was beginning to think registering here was pointless if no one answers.
Thank you so much.

 

[irish223]

I understood the code to say that the disbursement method (lump sum or through the pension fund) had to be outlined when the qildro was filed. By now, you probably have your answer. Let me know how it works out.

 

[shonna1976]

The qildro has not been filed yet. My father just now brought it to court to get a qildro. But that has to wait because the judge approved my mother's request (from 7 years ago!) for a new hearing on the motion to reconsider (my mother wants to show where my father dissipated assets.) The problem is, unless we can prove where my father had a substantial sum of money in the stock market (which we feel confident he had very well hidden) Mom doesn't have much of a chance to win on the reconsideration. Next step, my father requests the qildro. My mother will not consent to qildro. Therefore, what comes next? The judge never stipulated in the divorce decree what happens if my mother won't consent. Would he have to go back and amend the decree? Or would he simply just order her to pay my father x amount of dollars. Is it possible he could just throw it out completely and say if she won't sign the qildro, too bad? Mom's attorney isn't volunteering much information. In fact, with all my research I think I know more about SERS retirement system and Qildro than this attorney does. As of Friday she was waiting to hear back from SERS on a question I already had the answer too.
I am going to review the Pension Code again and see if there's more of an answer there. If you know anymore please let me know. Thanks again for your reply!

 

[shonna1976]

Once again we are still at a standstill. My mother's attorney has informed my mother she has never once tried a case where someone refused to sign a consent to issuance of qildro. In fact, the only appellate case IL has on record in regards to consent is Menken vs Menken where it is ruled that no one can be forced to sign qildro. Once again however, we are back to the opinion of my mother's attorney that the court can order (based on the theory of enforcement of the courts original intent) my mother to pay him out of pocket. I did some digging and (unless division of pension in a diss. of marriage is exempt from stat. of lim.) the limitations for enforcement is 7 years. It will be 7 years in August since the original judgement was entered. But my mother did file for a motion for rec. which I understand can essentially mean the 7 years technically hasn't even started yet. However - my father's countermotion was requesting that the original judgement remain. In addition, at the status hearing, upon finding out there were still open motions, my father's attorney asked that the motions be thrown out because of the amount of time passed. He said no, he would rule on them. Concerned that this is now a roll of the dice. If we agreed to having them thrown out my mother is giving up an opportunity to have the original judgement overturned. If it's not thrown out and not overturned, my mother has opened the door for the judge to enforce the division of her retirement.
Help! Please!