As promised in my post “Common QDRO Question: Can I file a QDRO after the divorce is final?”, I will address whether it may be too late for you to obtain a QDRO.
All states have statute of limitations on the enforcement of noncontractual monetary obligations, which includes divorce judgments. The statute of limitations period varies by state. In Michigan, the limitation is 10 years per MCL 600.5809.
We frequently receive calls from alternate payees who divorced more than 10 years ago. In some cases, they have been advised by their attorneys that the statute of limitations has run and they cannot file a QDRO. This is not always true. In Michigan (and in other states, I suspect), the statute of limitations does not begin running (the clock ticking) until the claim actually “accrues.” So, for example, if the divorcing parties were both 40 years old at the time of divorce and the judgment provides that the alternate payee may not begin to receive benefits until the participant attains the plan’s earliest retirement age (quite common, usually age 55), then theoretically the statute of limitations has not run out until the alternate payee reaches age 65 (ten years from the earliest date the alternate payee could have received benefits). This is actually 25 years after the divorce but it is permitted under Michigan law.
In addition to the statute of limitations, there are other compelling reasons why a QDRO should be filed with the judgment or shortly thereafter. Click the business card below to read our “Timing Considerations and Malpractice Traps” article.
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