In its decision in the case In Re Marriage of Padgett 172 Cal.App.4th, 830 (2009), the California Supreme Court addresses a situation that occurs with surprising frequency: The pension plan participant (former husband) died before a qualified domestic relations order (QDRO) was entered. The Plaintiff, who was apparently unaware that she was required to obtain a QDRO, is faced with the loss of pension benefits that indisputably constituted community property. However, she faces an uphill battle: her former husband (now deceased) had remarried, and the second wife (seeking to retain her full interest in the survivor benefits) adamantly opposes her claim.

In the Padgett case, the former wife (Ms. Padgett) argued that notwithstanding the plan participant/former husband's death, the Court had the authority to enter nunc pro tunc ("then as now") a QDRO. Ms. Padgett asserted that there existed ample grounds for entry of a QDRO because in the parties' divorce decree, the trial court specifically "reserve[d] jurisdiction" over the former husband's pension plan.

However, after the parties' divorce, Mr. Padgett remarried. His widow (Donna), as representative of his estate, opposed Ms. Padgett's request, arguing that ERISA's anti-alienation provision (29 U.S.C. § 1001) prevented the Court from ordering the pension plan to pay part of the survivor's benefit to Ms. Padgett in light of her failure to take steps to inform the pension plan of her community property claim prior to Mr. Padgett's death.

Clearly, in Padgett, the Court expresses its awareness of how manifestly unfair it is for Ms. Padgett to be deprived of her interest in the pension. In its decision, the Court engages in a painstaking analysis of legal precedent, as if to emphasize the extent to which the Court's hands were tied. The Court notes that the dissolution decree, though containing a reservation of jurisdiction, could not – even under the most generous interpretation – be viewed as creating any legally enforceable interest on behalf of Ms. Padgett.

The Court carefully distinguishes the facts before it from other cases, where orders were entered after the plan participant's death. In those cases, there were separation agreements and/or divorce decrees which specifically addressed the division of pension interests. However, Ms. Padgett had neither a court order nor any agreement that the Court could interpret as having conferred upon her an interest in her former husband's pension. The Court summarizes its holding as follows:

Entry of a nunc pro tune order following the retirement or preretirement death of the plan participant to facilitate qualification of a DRO as a QDRO where the DRO was obtained before the benefit-triggering event is proper in circumstances where the record indicates that the parties or the court intended the state court DRO to create an interest in surviving spouse benefits in the former spouse. However, where the DRO obtained before the benefit-triggering event does not create the right that the former spouse seeks to enforce as a QDRO against the plan, a nunc pro tunc order entered after the benefit-triggering event cannot create the right. Such order goes beyond the confines of the nunc pro tune power of the court.

Id. at 854.

The tone of the Padgett decision is virtually apologetic. Ms. Padgett learned the difficult lesson that where ERISA is concerned, even the most sympathetic of courts can provide little solace to non-participant former spouses who neglect to protect their rights. The lesson for divorce litigants and their attorneys is clear: a QDRO order must be secured as quickly as possible.