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My husbands QDRO was submitted and accepted May 2019. Now his ex wife’s attorney is looking to revise based on clarifications sent in the pension offices approval letter. The pension office stated their interpretation and stated; “if this interpretation was not the parties intent then a subsequent order will need to be sent. The main issue being addressed is the survivor benefits, as written his ex spouse is not entitled to any death benefits. We would like to keep it that way. Now because my husband didn’t sign the new drafted agreement or respond the APs attorney is filing a motion to compel. Do we have to revise it? After being accepted by the plan do we have any legal rights to refusal? 

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Your description is not completely clear, so pardon incorrect inferences.  Taking the perspective of the AP, the intent of the division of the pension benefit was to provide to the AP some interest in the death benefit (an assumption).  That would not be surprising -- the death benefit is an important element of the entire benefit.  For some reason (bad drafting, bad interpretation) the plan read the order as not providing an interest in the death benefit and was competent in its procedures to make that interpretation clear (probably becuase the plan suspected that the omission was not intended).  You like that interpretation, but it is not what was intended in the divorce settlement.  Just as the plan said, if the plan got it wrong, then the order needs to be corrected by submitting an amended or superseding order.  That is what the AP is working on.  It is all about implementing properly what was intended by the state court order, not how the plan interpreted the words of the order.  You can contest the AP's position about what what was intended/agreed in the divorce proceeding, but that contest occurs in state cocurt and the interpretation by the plan of the original order is irrelevant (my opinion).  The AP's rights are what the state court awarded.

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Thank you for replying to me. The wording is so confusing in these drafts. The first one states Treatment of AP as surviving spouse for purposes of determining death benefits under plan;

The Participant shall not be required to name the AP as his surviving spouse before his annuity commencement date.

The AP wants it changed to “shall be required”. If it’s worded in this way will she be the only surviving spouse and receive everything if he dies before retirement? Or is this just for her marital interest? Is there anyway to write it up so that it’s just her marital interest for death benefits? My husband wants to hire an attorney because his original one from the divorce won’t counsel him on a matter from 12 years ago and he doesn’t want me to be left with nothing if something happens to him. If there is nothing to be done and this is her right then it makes sense to me that he just sign it and we let it process. I am unsure if it matters but their original divorce agreement states that she is entitled to 50% of the marital interest it doesn’t go into any greater detail. 

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There are potentially 3 documents in play: (i) the written Agreement of the parties, if any; (ii) the Judgment of 
Divorce; and, (iii) the QDRO.  It is not clear from your posts where the sentence, "The Participant shall not be required to name the AP as his surviving spouse before his annuity commencement date" is located.  

The important issue is the intent of the parties in their written Agreement, or, if there was no written Agreement, then in the terms of the Judgment of Divorce. The QDRO is an enforcement tool designed to implement and enforce the agreement of the parties or the ruling by the court.  That's the starting point.  What did the parties intend, and where is that intention reflected?  

The ability of the Plan to take action may depend on the type of Plan, that is, a private company plan, a Federal, State or municipal plan, or an international plan.   

So get back to us with more specifics.  These matter are very fact intensive.  

And BTW, you need to hire a lawyer immediately so that the other party doesn't get the court to act in your best interests without you having your say. 

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We have a consultation with an attorney on Tuesday. I am not sure how well versed he is in QDROs though. He is local to our small town, and practices in criminal and family law. Through email he said it all seemed pretty simple after I sent him the Motion to Compel. 
As far as the details, the participant shall not have to name ap as surviving spouse is on the qdro that was accepted through the courts and through the plan administration. It’s a DB pension, issued from Ohio but he lives and works in Kentucky. It’s a union plan with the Ohio Operating Engineers. The judgement of divorce states that the former spouse is entitled to 50% of the martial interest accrued during the length of marriage. It doesn’t say anything else or go into any other details. As far as we know there are no other written agreements between the parties. According to my husband the former spouse didn’t want any part in the pension at time of divorce but her attorney wrote it in because the division was part of Kentucky law. The AP’s counsel is now wanting to revise the accepted qdro to say that participant must name ap as surviving spouse. 
If naming AP as surviving spouse only entitles her to her part of the marital property then none of this is an issue. It’s just we are translating that as meaning if he predeceases commencement that ap will receive the entirety of the survivors annuity. Is that an accurate translation? They were only married for 5 years so her marital interest is minimal.   

I truly appreciate the advice. 

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As far as your phrase of concern ("The Participant shall not be required to name the AP as his surviving spouse before his annuity commencement date.") goes, it looks to me like incompetent drafting.  I think the phrase has no place in a domestice relations order.  It demonstrates a lack of undrestanding of DB plan benefits.  It may be found in models and model language because of the recurring failure of domestic relations lawyers to deal with death beneifits properly, but it is a very bad place holder in lieu of not addressing the death benefit issue at all, which omission I believe would be malpractice.  This points out that somebody needs a competent ERISA adviser to make sure that the parties understand the issue and the the drafting lawyer states the intended outcome properly in the order in a way that the plan can understnad and implement the informed intent.  I think the plan's response was is a suggestion that the language was incompetent, and it got it's appropriate attention.  Now that is has the attention of the parties, y'all need to reach an informed understanding and decide on the division of benefits that has the intended and fully understood outcomes.  Your penultimate paragraph shows you are on the right track toward understanding.  I hope you can get advice that gives everyone a full understanding of the issue.

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There are two types of survivor benefits, a pre-retirement survivor benefit (QPSA) and a post retirement survivor benefit (QJSA).  Sounds like poor QDRO drafting as the plan will not pay former spouse their awarded interest if the participant dies before either participant or former spouse elects their share.  That's why the QDRO must court order that the former spouse is named "surviving spouse" for purposes of the pre-retirement QPSA (usually limited to just the former spouse's awarded interest...not the entire QPSA).   If that isn't in the QDRO and he dies before either has elected their benefit former spouse gets nothing.  This could lead to a malpractice suit against the QDRO preparer, etc...but still fixable now so if this is what has happened then I would agree with former spouse the QDRO should be amended.  But, former spouse should not get the entire QPSA (just her awarded interest) and should not get any of the QJSA assuming she is getting her own lifetime benefit once she elects directly from the plan.

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The fact that the Plan Administrator approved the QDRO means nothing.  They will accept whatever if put in front of them if it reflects the implementation of the benefits provided in the Plan Documents.  It is not ordinarily their job to look behind or investigate the QDRO and determine whether the court had proper jurisdiction or acted pursuant to State law.  At OPM for example, in administering CSRS and FERS Orders 5 CFR § 838.101(a)(2) states:  "In executing court orders under this part, OPM must honor the clear instructions of the court.  Instructions must be specific and unambiguous.  OPM will not supply missing provisions, interpret ambiguous language, or clarify the court's intent by researching individual State laws.  In carrying out the court's instructions, OPM performs purely ministerial actions in accordance with these regulations. Disagreement between the parties concerning the validity or the provisions of any court order must be resolved by the court." 

But, re: ERISA, see Advisory Opinion No. 1999-13A the IRS Division of Fiduciary Interpretation Office of Regulations and Interpretations was asked: 

"You have asked for an advisory opinion as to whether, and if so when, a plan administrator may investigate or question a domestic relations order submitted for review to determine whether it is a valid “domestic relations order” under State law for purposes of section 206(d)(3)(B) of ERISA."  

The response was as follows: 

"When a pension plan receives an order requiring that all or a part of the benefits payable with respect to a participant be paid to an alternate payee, the plan administrator must determine that the judgment, decree or order is a “domestic relations order” within the meaning of section 206(d)(3)(B)(ii) of ERISA — i.e., that it relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child or other dependent of the participant and that it is made pursuant to State domestic relations law by a State authority with jurisdiction over such matters. Additionally, the plan administrator must determine that the order is qualified under the requirements of section 206(d)(3) of ERISA. It is the view of the Department that the plan administrator is not required by section 206(d)(3) or any other provision of Title I to review the correctness of a determination by a competent State authority pursuant to State domestic relations law that the parties are entitled to a judgment of divorce. See Advisory Opinion 92-17A (Aug. 21, 1992). Nevertheless, a plan administrator who has received a document purporting to be a domestic relations order must carry out his or her responsibilities under section 206(d)(3) in a manner consistent with the general fiduciary duties in part 4 of title I of ERISA."

"For example, if the plan administrator has received evidence calling into question the validity of an order relating to marital property rights under State domestic relations law, the plan administrator is not free to ignore that information. Information indicating that an order was fraudulently obtained calls into question whether the order was issued pursuant to State domestic relations law, and therefore whether the order is a “domestic relations order” under section 206(d)(3)(C). When made aware of such evidence, the administrator must take reasonable steps to determine its credibility. If the administrator determines that the evidence is credible, the administrator must decide how best to resolve the question of the validity of the order without inappropriately spending plan assets or inappropriately involving the plan in the State domestic relations proceeding. The appropriate course of action will depend on the actual facts and circumstances of the particular case and may vary depending on the fiduciary’s exercise of discretion. However, in these circumstances, we note that appropriate action could include relaying the evidence of invalidity to the State court or agency that issued the order and informing the court or agency that its resolution of the matter may affect the administrator’s determination of whether the order is a QDRO under ERISA.5(5) The plan administrator’s ultimate treatment of the order could then be guided by the State court or agency’s response as to the validity of the order under State law. If, however, the administrator is unable to obtain a response from the court or agency within a reasonable time, the administrator may not independently determine that the order is not valid under State law and therefore is not a “domestic relations order” under section 206(d)(3)(C), but should rather proceed with the determination of whether the order is a QDRO." 

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