This is one of the great ERISA stories of all time – its like something out of a Boston Legal episode. I am speaking, of course, of the case, detailed here, of the Continental pilots who, concerned that the retirement plan may go belly up long before they retire, divorced their wives, executed QDROs transferring the retirement benefit to their now ex-spouses, after which the ex-wives took out lump sum payments, as the plan allowed. The only twist, though, is that, according to Continental, the divorces were executed solely for that purpose, and the pilots and their spouses either thereafter remarried or just continued cohabiting. The court found that the QDRO requirements were satisfied, and that the plan itself did not include any exception preventing such an alleged end around by participants to obtain benefits in this manner, and dismissed Continental’s suit seeking to recoup the payments.

This is an Alice in Wonderland, fun house mirror version of the rule that plan terms govern, and the statutory requirements control. Normally, those rules are invoked against plan participants, who seek more than a plan’s express terms allow, or seek to prosecute a claim that cannot be sustained under the statute’s narrow and express remedy or cause of action provisions. Here, the participants were able – assuming Continental’s version of events is true – to use those same rules to access the retirement funds early, without the plan or its administrator having any means to prevent it from happening.

But there is another point here, one lurking in the background, behind the entertaining fact pattern (entertaining, at least, to ERISA lawyers): the fact that we have a retirement system that is so tenuous that employees feel it is necessary to go to lengths such as this to protect themselves. That is the more significant issue that needs addressing, much more so than whether plan terms or QDRO requirements should be able to be manipulated in such a manner.