Gitlin Law Firm 2008 Illinois Divorce and Paternity Case and ...

Code stemming from the time when QILDROs were not allowed. The 1993 settlement
agreement stated in part:
As a part of the distribution of marital property, the parties will divide evenly
JOHN B. SCHURTZ' accrued retirement pension benefits as of September 16,
1993, if, as, and when received by him. * * * In the event a Qualified Domestic
Relations Order is lawfully able to be entered in the future with regard to said
pension, each party will cooperate to the entry thereof."
In late 2004, when the ex-husband was 62 years old, he became unable to work as a firefighter
and applied for disability benefits. The City of Peoria Fireman's Pension Board approved his
application and he began receiving $4,374.00 per month in disability payments. In February
2005, the ex-wife’s lawyer sent the ex-husband a letter requesting consent to issue what should
have been called a QILDRO (the decisions indicates the lawyer requested to issue a QDRO).
When the ex-husband refused, the ex-wife filed a petition for rule in which she sought to enforce
to enforce the judgment. The decision discusses the ex-husband’s testimony that he did not
necessarily intend to retire although it was possible he could stay on disability as long as he
lived therefore bypassing retirement benefits. The trial court granted the ex-wife’s petition for
rule holding the disability pension to be a retirement pension consistent with the MSA. The exwife
then filed a petition for fees per § 508(b) claiming that his failure to sign the consent for
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issuance of a “QDRO” was “without cause or justification.” The court required the ex-husband
to reimburse his ex-wife for payments he should have made but did not require pre-judgment
statutory interest. The court denied the ex-wife’s request for attorney’s fees finding he had a
good faith justification for his conduct.
Schurtz has a good discussion regarding disability and retirement benefits. It states:
When a pension plan provides disability benefits as well as retirement benefits
and the marital settlement agreement refers only to "retirement" benefits and is
silent as to disability payments, a court may reasonably interpret the agreement in
one of two ways: (1) as a grant to the ex-spouse of a portion of any benefits
received under the pension plan, or (2) as limiting the ex-spouse's interest in the
pension plan to normal, age-related retirement benefits. *** When a pension
plan provides disability benefits as well as retirement benefits and the marital
settlement agreement refers only to "retirement" benefits and is silent as to
disability payments, a court may reasonably interpret the agreement in one of two
ways: (1) as a grant to the ex-spouse of a portion of any benefits received under
the pension plan, or (2) as limiting the ex-spouse's interest in the pension plan to
normal, age-related retirement benefits. This interpretation is reasonable because
the disability pay is meant to replace the disabled ex-husband’s income, not act
as retirement pay. However, when an ex-husband is entitled to receive retirement
pay and is receiving disability income instead, a settlement agreement providing
the ex-wife a portion of retirement benefits "can be reasonably interpreted in only
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The mis-quote from the statute is noteworthy since §508(b) has used the phrase without
“compelling” cause or justification since 1997 (at the time of the “Leveling” amendments.)
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