we are both 61 so the "retirement" age is not an issue. He has publicly stated he will never take his pension as long as I am alive.
No doubt you must have an attorney review the QDRO and give you the legal advice you need as to how to get around your ex-husband's obnoxious attitude. Usually there is always a strategy to meet and conquer every other strategy, but this difficult question requires hands-on approach by an attorney.
This is NOT legal advice, is GENERAL INFORMATION ONLY, and does NOT establish an Attorney/Client Relationship with you. Therefore my answer cannot address your specific legal situation and you should not rely upon my answer in your legal matter. I am an attorney licensed in Maryland and California.
Usually the QDRO conditions your collection on his status. This does not mean that you cannot collect until he does. It usually means that you cannot collect until he is eligible to collect. I have never seen a QDRO that requires him to be collecting before you can. Take the document to an attorney for review.
I recommend taking the QDRO to an attorney to be reviewed. Sometimes the alternate payee spouse (you) is not eligible to receive benefits until the beneficiary spouse (your ex-husband) is eligible to retire but that doesn't necessarily mean you have to wait until the beneficiary spouse actually starts receiving benefits.
You have received very good answers already. I will only try to shed some light on the dangers hidden in the division of a retirement plan, because I only do work related to the division of retirement pensions and accounts during a divorce.
1. Usually you can amend a QDRO even many years after the divorce, unless there have been events that make the implementation of any such intended amendment impossible. A divorce attorney is great to have on your side when you are divorcing or in any divorce situation (and you should hire one in your area), but when it comes to the enforcement of the division of a retirement asset, a QDRO attorney with experience working with retirement plans could be a better option for you than a divorce attorney who may not be as familiar with retirement plan law. Particularly because this is such an old QDRO and the legal practice of QDROs has been greatly perfected in the last 10 years, I would suggest you hire somebody to review the entire QDRO. Also, if you cannot begin receiving benefits until he actually does commence receiving his, it sounds like your QDRO was drafted as shared interest. You may be able to switch to separate interest QDRO. That way you start receiving your benefits regardless of him getting his pension paid.
2. Each party is at risk of losing a lot of benefits ($$$) when the QDRO is not properly written. Little words make a BIG difference in the world of QDROs. Also, a lot could be lost if the QDRO is not drafted promptly within a reasonable time after the divorce.
3. You may need a local divorce attorney in the city where the divorce takes place to help you with going to court and represent you on the issues related to the divorce. BUT, for anything that has to do with writing or reviewing a QDRO, I would strongly encourage you to find an attorney, with experience in, and knowledge of, retirement plans and high sophistication with QDROs to do the actual preparation of the QDRO on your behalf (or to review a QDRO prepared by opposing party).
4. You don’t need a local QDRO attorney because most likely federal law regulates the retirement plan to which the QDRO applies so any QDRO attorney in the country can help you. There are a few well-qualified QDRO attorneys across the country. Focus on finding a QDRO attorney, not just a family lawyer to do the actual preparation (or review) of the QDRO. Do your research before hiring.
5. QDROs are NOT neutral documents. You need your own QDRO attorney to draft or review the QDRO prepared by the opposing party’s attorney. You need somebody who will look after your interests. I would be wary of anybody offering to prepare a QDRO for you and the other party, "representing" you both simultaneously.
6. Hiring a QDRO attorney in addition to your divorce attorney does not necessarily mean it will cost you more. QDRO attorneys usually charge a flat fee. The cost is worth it if you hire somebody who is a QDRO attorney with background on retirement plans. The flat fee cost is outweighed by the fact that your benefits will not be lost.
7. The Plan administrator may easily have approved a QDRO that complies with legal requirements regardless of whether the QDRO actually protects your interests. The Plan approval of a QDRO does not mean that the QDRO was properly drafted for your benefit. It only means the QDRO meets a few basic requirements mandated by law.
* I am a QDRO attorney, not a divorce attorney. I am not your lawyer until you and I have signed an Engagement Letter. This and other similar posts by me on the Internet are for informational purposes only. They are not legal advice. Nothing I post online should be taken as legal advice for any individual case or situation. This answer is not intended to create, and receipt or viewing of it does not constitute, an attorney-client relationship.
Veronica A. Silva is an attorney licensed only in Illinois. The use of the Internet and this answer or similar communication with the QDRO Law Center (QLC) or any individual member of QLC does not establish an attorney-client relationship. This answer is for information purposes only and does not constitute legal advice. Confidential or time-sensitive information should not be communicated and/or relied upon via this website. If you have hired an attorney, you must consult with your attorney.
Sign up to receive a 10-part series of useful information and legal advice about the divorce process.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline