Contested (apparently ugly) divorce, GAL appointed for minor, restraining order on respondent.

[Thornton]

I've been drafting QDROs for 6 years and haven't seen this situation before. I'm told by the attorney who retained me to draft the QDRO that the Participant/Petitioner's address cannot be in the QDRO due to a restraining order or something against the Alternate Payee/Respondent. It can be excluded from the body of QDRO but listed in the Appendix to the QDRO . The Appendix is not filed with the court but included when the QDRO is sent to the plan administrator for processing. A GAL has been appointed by the court to represent the minor children.

1. If the attorney does want not the Participant's address even in the Appendix, does anyone have an opinion on whether or not the plan administrator will qualify the DRO without the Participant's address anywhere?

2. Does the GAL need to sign the QDRO? 

Thanks.

[Peter Gulia]

The condition for a participant’s or an alternate payee’s address refers to a mailing address. ERISA § 206(d)(3)(C)(i). The address recited in an order need not be the address of a place where the participant or alternate payee resides. Further, the address need not be the person’s only mailing address. At least one court decision suggests it might be enough that the address is a mailing address at which the individual could receive mail. Mattingly v. Hoge, 260 F. App’x 776 (6th Cir. Jan. 8, 2008).

I’m aware of four potential solutions:

(1)     The individual’s attorney-at-law is willing to receive the retirement plan’s mailings at the attorney’s law office, and is willing for that address to be stated in the court order.

(2)     A friend or relative is authorized to receive the plan’s mailings, and is willing for the address to be stated in the court order.

(3)     The individual is permitted to receive the plan’s mailings at his or her place of business, which is separate from the residence not to be revealed, and the employer is willing for the address to be stated in the court order.

(4)     The individual opens a post office box to receive the retirement plan’s mailings.

Stating a participant’s or alternate payee’s Social Security number (SSN) or Individual Taxpayer Identification Number (ITIN) is not one of the enumerated conditions for a DRO to be a QDRO.

ERISA § 206(d)(3)(C)(i), 29 U.S.C. § 1056(d)(3)(C)(i) http://uscode.house.gov/view.xhtml?req=(title:29%20section:1056%20edition:prelim)%20OR%20(granuleid:USC-prelim-title29-section1056)&f=treesort&edition=prelim&num=0&jumpTo=true.

Nothing in ERISA § 206(d)(3) calls for any person’s guardian ad litem to sign an order. What matters is whether an order is the State domestic-relations court’s order.

Whether a particular court or judge expects a person’s or her guardian’s signature is a matter of local law and procedure.

 

[fmsinc]

The Plan Administrator is most likely fully aware of the Participant's true address.  I agree that the Participant can use any mailing address she chooses, most likely a "care of" address.  So you can put the "care of"  mailing address in the Addendum to the QDRO that will only go to the Plan with the certified copy of the QDRO. 

The problem is that the Plan may send its determination letter to both parties at their real home addresses.  So the Participant has to contact the Plan and change her mailing address before that happens.

As far as signing the QDRO is concerned, nothing in ERISA § 206(d)(3)(C)(i) requires anyone to sign it.  This is confirmed in the attached DOL re QDROs.pdf  See question 1.2 where the answer is, inter alia, "There is no requirement that both parties to a marital proceeding sign or otherwise endorse or approve an order."

Note:  You can find Mattingly v. Hoge, 260 F. App’x 776 (6th Cir. Jan. 8, 2008) at https://casetext.com/case/mattingly-v-hoge

The trial court found that the Divorce Judgment contained all of the information needed for it to be a QDRO. 

BUT that's FEDERAL law re: whether the DRO is a QDRO.  A state may require a QDRO to be signed off by both parties or their attorneys.  This is were the Maryland case of Rohrbeck v. Rohrbeck comes in handy in providing that a QDRO is nothing more than an tool to enforce the court's rulings, like a garnishment or an attachment. Does anyone sign a garnishment or attachment.  In Maryland it's a matter of courtesy to send the other attorney on endorse form, not content.    https://scholar.google.com/scholar_case?case=6821439692749566017&q=rohrbeck+v.+rohrbeck&hl=en&as_sdt=4,21