Using a QDRO to Enforce Support Arrearages

Are you having trouble collecting monies against your former spouse? Are they evading every single Court Order and refusing to pay the money that you are entitled to? If so, then you’ve come to the right place to get the money that you rightly deserve.

In May 2019, the Appellate Division held in Orlowski v. Orlowski that a trial court may compel reimbursement of college tuition, forensic accountant’s fees, and counsel fees through the use of a Qualified Domestic Relations Order (“QDRO”) against the obligor’s annuity governed by the Employee Retirement Income Security Act of 1974 (“ERISA”). The trial court further concluded that unpaid awards for counsel fees and expert witness fees relating to child support, property distribution, and college tuition reimbursement are enforceable by QDRO from ERISA protected pension funds when an ex-spouse is the alternative payee of the QDRO and counsel fee judgments relating to child and spousal support are enforceable through enhanced wage garnishment. Therefore, when your ex-spouse claims that they have no money and cannot pay you child support arrearages and/or college tuition money for your son or daughter, the court now has the authority to compel that individual to pay out of their annuity.

The case at hand deals with Joanna B. Orlowski and her enforcement efforts against her ex-husband’s arrearages. Joanna’s ex-husband, Robert Orlowski, was a member of the International Union of Operating Engineers Local 14-14B (hereinafter referred to as the “Union”). The Union administers a pension fund known as the Annuity Fund of the International Union of Operating Engineers Local 14-14B (the Annuity).

The important facts are as follows: Joanna and Robert married in May 1993 and had two (2) children. Joanna filed a Complaint for Divorce in 2014 and they were divorced in 2016. The amended final judgment of divorce (hereinafter referred to as “judgment”) required Robert to pay his child support obligations via wage garnishment. Their judgment also required Robert to pay $5,000 to Joanna to her forensic accountant and $48,194.98 for counsel fees. Thereafter, Robert refused to comply with the judgment and subsequent court orders. His obstinance prompted Joanna to move for enforcement in April, May, September and December of 2016. All of Joanna’s enforcement motions were granted, at least in part. Despite being successful in her motions, Robert remained noncompliant. He refused to timely pay spousal and child support and therefore arrearages began to accrue. Johanna asked the trial court to enforce the arrearages, counsel fee judgment and other obligations that Robert owed Johanna by taking it from his annuity. In sum, Johanna moved to enforce litigant’s rights and for sanctions due to Robert’s refusal to pay the $131,495.48 via QDRO since Robert’s annuity carried a balance of $395,334. The trial court declined, and Johanna appealed.

The Appellate Division defined a QDRO, which is a domestic relations order that “creates or recognizes the existence of an alternative payee’s right to, or assigns to an alternative payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan. An alternate payee is defined as any spouse, former spouse, child, or other dependent of a participant who is recognized by a domestic relations order as having a right to receive all, or a portion of, the benefits payable under a plan with respect to such participant.

The Appellate Division opined that since the alternate payee (Joanna) of the QDRO was Robert’s former spouse then the trial court has the authority to not only provide her with one-half of Robert’s annuity but, also, ALL of the other past monies that Robert owed Joanna.

In sum, if you have significant arrearages as a result of your former spouse’s refusal to pay, and he/she has a substantial annuity, you may be able to be paid in full from the annuity through use of a QDRO since the Appellate Division held that QDRO’s may be used to enforce counsel fee awards incurred and/or to enforce support arrearages. Ziegler, Zemsky & Resnick can assist you in addressing such issues should they arise.

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