DeSantis v. DeSantis, 97-0010

Decision Date29 July 1998
Docket NumberNo. 97-0010,97-0010
Citation714 So.2d 637
Parties23 Fla. L. Weekly D1769 Pamela A. DeSANTIS, Appellant, v. Michael A. DeSANTIS, Appellee.
CourtFlorida District Court of Appeals

Lawrence U. Taube, West Palm Beach, for appellant.

Timothy W. Gaskill of DeSantis, Gaskill, Smith & Shenkman, P.A., North Palm Beach, for appellee.

WARNER, Judge.

This appeal concerns whether a trial court may enter a postjudgment Qualified Domestic Relations Order ("QDRO") to enforce the equitable distribution portion of a final judgment when one spouse solely owns the pension fund against which the QDRO is ordered. We hold that the order cannot be a qualified order and reverse.

In the final judgment of dissolution of marriage, the appellee husband received assets including his interest in his employer's pension and profit sharing plan, while the appellant wife received assets including her interest in her employer's pension and profit sharing plan. Because the distribution of these assets made the parties' shares unequal, the court also ordered the wife to make a cash payment of $7,000 to the husband within six months of the final judgment. When the wife failed to pay, and after several enforcement proceedings, the husband moved the court to attach a QDRO to the wife's pension plan in order to compel the wife to make the $7,000 payment. After referral to a general master, the trial court entered a QDRO against her pension plan in order to effectuate the equitable distribution ordered in the final judgment.

A QDRO is, in pertinent part, a "domestic relations order ... which creates or recognizes the existence of an alternate payee's right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan." 29 U.S.C. § 1056(d)(3)(B)(i). In Kahn v. Kahn, 801 F.Supp. 1237, 1244 (S.D.N.Y.1992), aff'd, 2 F.3d 403 (2d Cir.1993), the court stated that:

The object of REA [Retirement Equity Act, which authorizes the issuance of a QUADRO] was to better protect women who had contributed to their marriage's [sic] financial security through their work in the home, anticipated sharing in the pension income received upon their husband's [sic] retirement, but were left inescapably dependent on their husband's [sic] earnings, at the mercy of death or divorce.

(emphasis added). Thus, a QDRO is intended to protect one spouse's right to the other's pension or profit sharing plans by recognizing that spouse's entitlement to a portion of the future payments.

The trial court entered the QDRO pursuant to section 222.21(2)(b), Florida Statutes (1997), which excepts pension funds from garnishment unless a qualified domestic relations order has been entered with respect to such fund. That statute provides that a QDRO has the same meaning for purposes of that section as the definition contained in section 414(p) of the Internal Revenue Code. A "domestic relations order" refers to a judgment, decree, or order that: (1) is made pursuant to a state domestic relations law and (2) relates to the provision of...

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21 cases
  • United States v. Wolas
    • United States
    • U.S. District Court — District of Massachusetts
    • February 16, 2021
    ...the right to, receive all or a portion of the benefits payable with respect to a participant under a plan." DeSantis v. DeSantis , 714 So. 2d 637, 638 (Fla. Dist. Ct. App. 1998) (quoting 29 U.S.C. § 1056(d)(3)(B)(i) ).10 Wolas and Sturge were in e-mail contact at that point. (Id. at 78, 80-......
  • Wise v. Wise
    • United States
    • Florida District Court of Appeals
    • December 12, 2002
    ...rights in a subsequent proceeding, even though the action is filed in the same docket as the dissolution action. De Santis v. De Santis, 714 So.2d 637, 638 (Fla. 4th DCA 1998)("Once the final judgment awarded each party the interest in his or her own pension plan, those assets were no longe......
  • Pullo v. Pullo
    • United States
    • Florida District Court of Appeals
    • April 13, 2006
    ...was entered, marital property rights no longer existed and only individual property rights remained. See, e.g., DeSantis v. DeSantis, 714 So.2d 637 (Fla. 4th DCA 1998). Therefore, once the judgment of dissolution was entered, $782.79 of the Former Husband's retirement benefits payable each ......
  • Smilack v. Smilack, 5D02-3886.
    • United States
    • Florida District Court of Appeals
    • September 12, 2003
    ...court determines a valid need for this procedure exists. See Kadanec v. Kadanec, 765 So.2d 884 (Fla. 2d DCA 2000); DeSantis v. DeSantis, 714 So.2d 637, 638 (Fla. 4th DCA 1998); Rey v. Rey, 598 So.2d 141 (Fla. 5th DCA 1992); Fraga v. Fraga, 562 So.2d 851 (Fla. 3d DCA 1990); Carrison v. Carri......
  • Request a trial to view additional results
1 books & journal articles
  • Qualified Retirement Benefits
    • United States
    • James Publishing Practical Law Books Divorce Taxation Content
    • April 30, 2022
    ...§ Use of QDRO to Collect Required Payment for Equitable Distribution of Property A Florida court, in DeSantis v. DeSantis, 714 So. 2d 637 (Fla. 4th DCA 1998), held that a QDRO against the wife’s plan to enforce a cash payment due from the wife to equalize the equitable distribution......

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