CADMT

1. It depends on what the court order said. Does the order state 50% plus or minus gains and losses or just 50%. If it is simply 50% then it is half of $400K. 2. There is no time limit for filing the QDRO. But obviously if the order states 50% without gains, then the alternate payee is losing money by not filing a DRO ASAP. 3. See item 1. It depends on what the JOD or SA says.

No, the plan is only obligated to comply with a court order that divides the pension AND that meets the plan's rules. There is no way to determine if it is worth your while to pursue this unless you know the value of the pension that you then can assess against your circumstances. I suggest you get an attorney to pursue this, at least up to the point of discovery the amount involved.

So if the plan acts on the verbal by effecting a hold, then the participant now has the unenviable task of proving the negative if there is no imminent action. What if they reconcile or otherwise have no need for legal action such as a property settlement or court order? If the plan accepts a verbal as "notice" and asserts that they have a "reasonable belief," then they are subjecting themselves to litigation, especially if the participant can assert that they never made the call or conveyed such message that division of property is taking place. Before a hold is effected, I would ask (in writing) for confirmation that there is a impending division of property. It's the participant's money, not the plans. The burden should be on the plan to validate a need for withholding the participant's own money. In short - Accept No Verbal Orders

Who sent the settlement agreement to the plan? Never send an SA to the plan!

This is a relatively common valuation in the disposition of assets in a divorce. There are many who perform these calculations/valuations as a living (including myself). Someone here might agree to do the valuation pro bono. However, if no one does, there are many firms that will do it for a relatively low fee. Whoever does it for you will need the plan statements which provide a time phased accounting of the gains and/or losses and contributions with which to calculate the marital value, because this value changes over time (the premarital percentage decreases and the marital percentage increases, due to marital contributions). Using that information they can arrive at a final division of marital/premarital. Absent the contributions you could just divide the premarital balance by the total account balance and apply that fraction to the gains and losses to determine the marital portion. It's the contributions that creates the complexity.

@jpod That would be my question as well. It almost sounds like they are conflating a settlement agreement with a DRO. The QDRO is a court order. Court orders require no signatures from either party. Nor is a settlement agreement or stip, a DRO. I have never personally prepared DRO that requires either party's signature, nor could I ever envision a situation where that would be a necessity. There is either more to the story or someone doesn't have full understanding of the DRO process and what the plans require.

If the DRO is acceptable to the plan and it is clear to what plan the order applies, then all is ok. Except for Fidelity, most plans will review the DRO and advise if there is a problem.

If the 401K is not derived from the pension in some form (such as a conversion) and as long the participation start date is post final dissolution then it is the participant's separate property and not subject to division by the courts. In summary, you can pay the man (or woman).

It depends on the plan provisions regarding death benefits and whether the separate interest had any form of guaranteed (certain) payments and/or death benefit. Absent any of the foregoing benefits, under a separate interest, the AP benefit ceases when the AP dies. Also under separate interest there is typically no provision for the restoration of the Participant's original benefit once it has been separated. Unless you have documentation that confirms the AP's intention to name you beneficiary, the plan has no means to modify any previously named beneficiary. I would consult with an attorney, but you should also determine just what, if any, survivor or death benefits, is at issue. In some cases, the cost of any action to gain the benefit, may not be worth the amount of benefit gained.

The most significant issue is the loss of future earnings on the $60,000n. The Participant cannot really be made whole. The Plan, of course, has no fault since they complied with a certified order. The Participant shares some of the responsibility because they should have reviewed the draft QDRO to ensure it was correct. That said, the easiest way to make the Participant whole again would be for the Plan to allow a deposit of the of the $60,000 into the Participant's account. Many plans have a feature that allows for extra contributions/deposits. But some do not. If this is a plan that does not allow for it, then the AP would have reimburse the P directly. If the AP received her distribution and deposited into a retirement vehicle such as an IRA, then via court order, the amount could be rolled over into a retirement vehicle for the Participant. Third and more complex and costly, is if the distribution were not deposited in a retirement account, the AP would have to direct reimburse the P, who may or may be able to redeposit the funds into his account (or a new retirement account), but there remains the matter of the lost earnings (and losses) as well as the tax implications of a distribution.

Two thoughts. 1. Regardless of whether there is a hold, the issue remains unresolved regarding the distribution of assets in state court. As a result of your divorce there should have been a settlement agreement or court order stipulating how the distribution should take place. The court may have awarded a portion of the Centurylink account to your ex or said that you would keep the entire sum. Which is it? If it was not stipulated, then you need to get the court to resolve the issue, which will negate the necessity of dealing with your ex regarding a waiver (which I'm not sure the plan would honor anyway). It appears that you got divorced but did not resolve all the property issues - a not uncommon occurrence by the way or the issue was resolved but there was no QDRO prepared and approved by the court to send to Centurylink. 2. The plans operate in accordance with their own policies and procedures. What one plan does the other may not. Centurylink wants something official to absolve them of any responsibility. Typically they are responsive only to court orders and not much else. If you get a court order (QDRO) that awards you the entire the sum in the account, then Centurylink would release the funds. Bottom line: The plan wants a QDRO. Give them what they want and you can get your money. Second bottom line: Plans must legally follow their own procedures. Get a copy of the QDRO procedures and determine what their hold procedure is to make sure they are following their own procedures. If they are not call them on it and tell them they are required to follow their own procedures.

1. Yes it has value - referred to as the "present value" You will need someone who values pensions in divorce to perform a valuation. The methodology is identical to how your pension would be valued. 2. No. The valuation process takes into account mortality. The fact that it's a state pension is irrelevant. 3. Have someone perform a valuation. There are many companies that do this. Cost will be several hundred dollars. 4. Not a question, so no real answer, but have your attorney get the judge to order a valuation. Your attorney should file a motion stipulating (quoting CT law) that all marital assets are subject to division in a divorce, whether equitable distribution or community property AND that any and all assets can be valued. If the survivor benefit has no value, then your ex would receive nothing, so the judge's statement is ridiculous on the face of it. Of course, your pension is also an asset and as such can be divided. If your ex is making no claims to divide your pension, perhaps you should consider that if judge orders the survivor benefit be valued and you receive compensation, they might say the same for your pension and you may not be pleased with the result. Your were married approximately 10 years. Your probably had 30 years of service. The marital portion would be something 33%. That means 1/3 of your pension would be subject to division. Multiple your pension by 1/3 and then divide by 2. That is a close approximation of what she would receive from your pension. You would still have to value both the survivor benefit and the pension itself to determine what the total marital value is and then figure out how to divide it, but it may not be worth the effort depending how much she could receive of your actual pension. P.S. While Social Security cannot be divided, it can be valued and then used to offset other assets that are subject to division.

The combined interest/balance in the plan should be divided by 2 and then subtract that result from each participant's balance. The QDRO should then stipulate that the positive remainder be transferred to the negative remainder so that both account balances are even. Only one QDRO is necessary. If the parties cannot agree, then 2 QDROs can be written, each stipulating that 50% is to be transferred to the other party. I assume from your post that you are not in the plan administrator's office because you are aware of what is in the stip. So if you are the participant who is receiving less than your 50% talk to your attorney and write a QDRO that divides the other participant's account by 50%.

Shoulds are always opinion and not legal requirements. The correct word for a requirement is "shall" which is why the poster used "should" so as not to leave an impression that they were legal requirements.

Under ERISA the plan administrators must determine whether a domestic relations order is a QDRO within a reasonable period of time after receiving the order. You did not say when the plan received the order, but assuming that it was sometime in the 9/2013 time frame AND considering that you are receive 100% of the benefit, the plan should have qualified the DRO and completed the transfer. You did not say exactly what kind of benefit it was but your use of the "fund" indicates it was a deferred compensation vice defined benefit. If that is the case, the account should have already been transferred into an account in your name for you to dispose of in accordance with plan rules. A death certificate is not necessary, only a valid order signed by the court. Valuation of the account should have been done periodically, therefore no calculations are necessary because the account is not being divided. You should contact the plan administrator directly to find out what the delay is and also consider filing a complaint with the DOL. Of course if the QDRO is not straightforward in terms of retirement account there may be some complexities that I cannot address.

I would advise rejecting the order since you cannot execute the order as it stands. Your rejection should include the reason and a suggestion that the calculation be done from 1/1/12. You have to be responsive to the order. Otherwise you end up with a headache because you did not comply with the order as written.

1. Whether the Participant actually has to separate and/or retire for the ERD provision to kick depends on the plan. Generally, the AP cannot collect until the P retires, so the ERD provision (where provided in the plan) is used where a P continues to work after their ERD and the AP wants to collect his/her share of the benefit before P retires. 2. A QDRO is not required to contain that language regarding distribution. The QDRO should contain appropriate language that the account (presuming this is a defined contribution account - 401K, 403B, etc.) is to be segregated as of a cutoff date and placed in a separate account for the benefit of the AP. If after division, the account contains less than X amount (typically $5,000) it is distributed directly to the AP regardless of the age of the AP. Plans do not want to handle accounts that are that small. 3. You cannot force a payout of a P's share. You can only force a division of their share. If the P turns 79.5 they must start taking distributions from the account. The QDRO should provide for the division of the account and should treat the AP exactly as if they are a P, once the division is complete, including following the plan rules and the law regarding payouts and distribution.

If the agreement said that you were "to receive 50% of the account for the marital coverture period" that account balance will include the gains and losses. Whether you receive gains/losses from the cut off date until segregation or distribution depends on whether that was explicitly identified in the agreement OR whether the judge decides it was or should have been. It sounds to me like this is decision to be made by the court (subject to arguments by both attorneys). Remember Family Law is an oxymoron. A lot depends on how the judge views things.

Whether or not your share earns interest from the cutoff date (typically the separation date) until the date of distribution depends on the wording of the stip or judgment of divorce. The if there was a stipulation that you would earn interest on the marital portion then the plan can still provide the information on the gains and losses from the cut off date until the date of distribution and you would have your agreed upon share. Remember a QDRO is an order directing the plan to divide an asset. The settlement agreement/judgment of divorce should contain the information necessary to draft that QDRO. So check your stip/jod to see if you were awarded gains and/or losses from the cut off date until the date of distribution. You do not have to wait for your ex to draft a QDRO. You can have it done and present it to the court (through your attorney unless you are appearing pro se) and have the court sign it. As long as the QDRO conforms to the SA/JOD the court should not have a problem.

If the Participant wants to abrogate the QDRO, it must be done via a court order.

1. If the plan is in receipt of a valid court order that assigns benefits and the order complies with the plan rules the plan must honor the QDRO. 2. The court (considering it family court to which law seems to rarely apply) can only assign benefits which are/were marital property. 3. If the account is a defined contribution account, any balance between the date of marriage and the cutoff date are marital property (presumably the entire $10,000) 4. Earnings and/or losses attributable to the marital portion are also marital property that can be assigned 5. Any contributions after the cutoff date (commencement date of the action) are the separate property of the spouse and cannot be assigned/awarded by the court. 6. A separate civil (non-family court) action, could find a judgment for the plaintiff, which could be satisfied by a levy against the account. 7. If the court awarded separate property, the court erred (which is common), then the account owner should appeal on the basis that the court awarded separate property. If this is not a defined contribution account, accrued benefits after the marriage can be assigned to some extent (coverature formula).

You cannot refuse the order if it conforms to plan rules. Additionally it is the Participant's money and the fact that he or her may have found a way to avoid the early distribution penalty is really no skin off your nose. However, I question whether either party can avoid the penalty anyway since the Alternate Payee effectively becomes a Participant after the division and should be bound by the same rules as the Participant, especially in regards to the early distribution. You did not provide their age so it is not possible to tell if age is a factor. If they take a distribution and roll it over into an IRA or other retirement vehicle, then no harm or foul, but aside from the fact that the plan should be treating the Alternate Payee the same as they treat a Participant, both the P and AP have to deal with the IRS and will have to account to for the distribution.

If a QDRO was executed the 401K should have segregated into a separate account or distributed the proceeds to the AP. Therefore the RMD is based on the AP's DOB. Remember her share of the 401K (which should be in a separate account) is now hers and she is in effect the Participant/Employee with all the benefits of an employee for her share. So it is her DOB that is used.

First, the use of an ERISA plan funds to pay debts (including attorney fees) is prohibited (anti alienation provision). Second, if he takes a loan to satisfy the marital property, the tax consequence to him are nil, since it is a loan not a distribution. He should not care about the tax consequence to her, that's her problem. If his ROI is very low, the loan may be the more attractive option. If he takes a distribution (and not a loan) there would be tax consequences to him. A QDRO is only necessary to divide assets in a plan. If he is to issue a check to her as her share of a marital asset, a simple court order is all that is required, and could be a part of the JOD or settlement agreement. Lastly, if he borrows the money, he will at least be paying himself back with interest. Sort of like a savings account. It's better than borrowing from someone else. Sometimes a loan from a retirement plan is a good idea.

No case is so clear that you can defend it yourself. It's not the opposing attorney that is the problem. It it CA's judicial system, which appoints "commissioners" without the qualifications, who are overworked and do not read case material, and generally shoot from the hip in court. So a great deal depends on how you present yourself in court rather than having case law or the law on your side. Remember family law is a oxymoron. A decent attorney can at least go through the (proper) motions to facilitate an appeal should that become necessary. The valuation date in NY, CA and other states (but maybe not all) is typically the date of commencement of the action (separation). However, the law permits the parties to agree to anything they want in this regard. There are two possibilities. Either her attorney understands this and is trying to see what you will agree to or her attorney does not comprehend division of pensions and retirement accounts. While the former is possible, I tend to think it is probably the latter. If you get an attorney, find one with some experiences in QDROs or use a QDRO firm as a consultant.