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QJSA Spousal Consent and Haiti


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A plan participant needs spousal consent since he wants to receive 100% of his accrued pension benefit. However, the spouse is in Haiti, and they have not spoken in years, and numerous attempts to contact her have not been successful. Is there any relief available here or will he just have to keep trying to get the spousal consent or elect a 50% QJSA?.

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About a separation, a plan’s governing documents may (but need not) provide that a spouse’s consent is excused if the plan’s administrator decides (1) the participant and the spouse are legally separated, (2) the participant has a court order to that effect, and (3) no QDRO requires the spouse’s consent.  The combination of these three conditions is unlikely.

About an abandonment, a plan’s governing documents may (but need not) provide that a spouse’s consent is excused if the plan’s administrator decides (1) the participant has been abandoned (within the meaning of local law), (2) the participant has a court order to that effect, and (3) no QDRO requires the spouse’s consent.

A judge who understands the ERISA and retirement plan effect of either order might be reluctant to grant it without first dividing marital property, which might include making a qualified domestic relations order.

 

Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania

215-732-1552

Peter@FiduciaryGuidanceCounsel.com

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The question involves spousal consent regarding a plan loan and does not involve a QDRO. My understanding is that a court ordered legal separation does not excuse obtaining spousal consent for a plan loan since the participant is still legally married..

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If your plan’s governing documents allow it, a separation could excuse the spouse’s consent for a distribution or loan that otherwise requires that consent if the three conditions are met.

(My explanation of the three conditions is grounded on 26 C.F.R. § 1.401(a)-20/Q&A-27.

https://www.ecfr.gov/current/title-26/chapter-I/subchapter-A/part-1/subject-group-ECFR6f8c3724b50e44d/section-1.401(a)-20

Under the 1978 Reorganization Plan, that Treasury rule also is an authoritative interpretation for ERISA § 205.)

Because a separation exception’s conditions include a court order, it’s wise for the participant to consider whether a court would grant the order he requests, and what legal provisions a judge would want in effect before granting the separation order.

My last paragraph mentioned the domestic-relations point because a judge who understands that a separation order could deprive the spouse of her survivor annuity might want to first make some other provision to get the spouse her share of marital property.

Remember, no court order means no exception to the spouse’s-consent provision.

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Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania

215-732-1552

Peter@FiduciaryGuidanceCounsel.com

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Thank-you for your responses. I found out that the participant's spouse lives in Haiti and there is no separation agreement or abandonment etc., They are happily married. The concern is that while the spouse in Haiti is willing to sign a spousal consent agreement, to authorize a participant loan, she lives in the Haiti countryside and given the political turmoil in the country could not possibly get this notarized by a US notary. It would seem to me that if we can obtain  signed spousal consent with proof of ID, that given the political turmoil in Haiti that we could accept the spousal consent without notary?

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Can the spouse get to the U.S. consulate?

When a person is not present in the United States, her acknowledgment may be made before a United States ambassador, consul, consular officer, or consular agent.  22 U.S.C. §§ 4215, 4221.  A consular officer must officiate and perform a notarial act an applicant properly requests.  22 U.S.C. § 4215.

http://uscode.house.gov/view.xhtml?req=(title:22%20section:4215%20edition:prelim)%20OR%20(granuleid:USC-prelim-title22-section4215)&f=treesort&edition=prelim&num=0&jumpTo=true

 

Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania

215-732-1552

Peter@FiduciaryGuidanceCounsel.com

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What sort of plan other than a defined contribution plan permits a "loan"?  

What sort of defined contribution plan permits a loan of more that 50% of the vested account balance but not to exceed $50,000? 

What are the exact plan provision with respect to "notice" to a spouse, and "consent" by the spouse -two entirely different potential requirements? 

What does a 50% QJSA annuity have to do with any aspect of your question? 

If there is no divorce action pending there is nothing a court can do for you.  If you file for divorce you will have to serve her with process or used substituted service (your lawyer will understand what that is).  If she does not file an Answer to the Complaint you can get a default and ask that the court not award her any share of your Plan benefits, whatever they are.  If the Court goes along they at that point it's YOUR plan and she has no control over any of your decisions.   

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Ananda, you are all over the map. If I were you I'd start all over and see if you could get a coherent response. To add fuel to the fire of incoherence another option for notarization is e notarization, made popular during covid.

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34 minutes ago, fmsinc said:

What sort of plan other than a defined contribution plan permits a "loan"?  

What sort of defined contribution plan permits a loan of more that 50% of the vested account balance but not to exceed $50,000? 

 

Case in point. Sometimes the level of incoherence is astounding.

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