CADMT

If the QDRO contains language similar to the following, it would be considered a valid dro and should be processed. "Any Plan amendments, Plan mergers, changes in custodians, Plan name or sponsor of the Plan shall also be subject to the terms of this Order" Most participants and/or alternate payees, seem to have little knowledge of exact name of the plan. As long as the DRO clearly indicates which plan it is, even if the name has changed, then the order should be qualified. This is especially true if the plan pre-approved/qualified the draft.

I said the JOD should have addressed the disposition of martial property, including but not limited to, stating that the division would be accomplished sometime in the future, or that it is a separate agreement already agreed to by the parties, or that there is no property to be divided, or even that the court reserves jurisdiction in the matter, yadda, yadda. If JOD is completely silent on the division of marital property then the person having control of the property can dispose of it as they see fit, without recourse or even dispose of it in another state because the state court for the dissolution of the marriage did not maintain jurisdiction over the division. Retaining jurisdiction is the norm in NY, CA, DE, and VA. Remember QDROs do not have to be filed right away. They should be, but they don't have to be. Additionally, the QDRO merely articulates the agreement of the parties in dividing retirement assets. It does not have to be done at the time of JOD. However, if there is a JOD that did not resolve or reserve resolution of who gets the house, the dog, the corvette, the guns, and the stills, there is a problem. On the other hand, "family law" is an oxymoron in most states.

I cannot even conceive of how you got a JOD without it addressing, in some manner, the disposition of marital property. The JOD should have said that SA was incorporated in the JOD. The judge should not have permitted that. Still in the judge's defense, they probably are overworked and inundated with paperwork and depend on the attorneys for making sure each parties interest is represent. You now need to do three things. 1. Obtain new legal representation to submit a motion ammending the JOD to incorporate settlement agreement. 2. Include in the motion the DRO for the pension (assuming the DRO is preapproved (prequalified) by the plan (if the plan does preapprovals). Have the judge sign both the ammended JOD and the DRO. 3. File a suit against your previous attorney for malpractice.

Don't automatically give into the threat. However, you should have some understanding of what the dollar difference is, which could be significant or insignificant. If the dollar difference is significant (which would be the case on a defined benefit plan over you life), then you should challenge this. There is ample case law in California that is on your side. When the agreement does is not specific regarding the determination date then the default is case law, which is the date of seperation. In fact, CA case law says that property acquired after the date of separation is your separate property.

This is not a QDRO issue. The QDRO ordered the division which identified the amount to be divided and the method of division. The plan pays the AP according the plan rules. The plan should be the AP just as they would treat a participant who has reached NRD and has retired. The answer to your question can be found in the answer to the question "What must the plan do for a participant who has retired on the their normal retirement date without electing the form or retirement as required by the plan?" The plan should use the default election and pay the AP, which probably is a single life annuity (actuarially adjusted if it is separate interest). If the checks are not cashed that is not a plan problem. The plan needs to be able to demonstrate that it has complied with the order AND acted in accordance with the plan procedures

OPM will execute the order to divide the TSP in whatever manner the order stipulates for the division, as long as they have the approrpriate information to do so. The parties may agree the divide the TSP in any manner they agree to. However, the marital portion of the TSP would exclude pre-marital constributions plus earnings and/or losses. OPM is unconcerned about such matters and has no requirements concerning marital property or the manner in which the property is to be divided. Bottom line: State law applies and it can only direct the division of property which is marital (that is, which was acquired or earned during the marriage).

The Plan cannot legally assume anything. They can only act in accordance with facts that are not in question. If the Participant is not married and if the there is no order directing otherwise, the Plan must act in accordance with Plan procedures, which in this case is to issue a loan, with no spousal notification or concurrence (as long as the Participant is not married"). Since there apparently is no DRO that the Plan must be responsive to, then there is no obligation on the part of the Plan to do anything but follow its own rules. Plans are not bound by Stipulated Agreements. Participants are bound by such agreements, but that's not the Plan's business. Of course if the Plan rules say that they accept such agreements and can take action such as freezing the account while waiting for the DRO... Bottom line - follow the Plan rules.

Yes you can have the court award attorney fees for the court order. Second, participant's are never actually required to sign a DRO. Remember a DRO is an order of the court. The plans are required to accept such orders when they are qualified. If the court has already ordered a division of the pension/benefit, then the DRO articulates that award as an order to the plan. Courts would like to have both parties agreement via a stipulated agreement, but can and will order it when a stipulated agreement has not been reached.

The denominator should be the total service time. You did not say why or what froze regarding the plan. If the plan freezes because of some event specific to the plan then it may be that the participant's continued employment would not constitute service under the plan. However, I am presuming you mean the pension benefit froze. Even so, the coverature formula in the QDRO remains the same and is applied to the benefit that the participant receives at retirement. The marital property may be larger or smaller at the time of retirement/benefit commencement. The formula is the method to arrive at an equitable distribution of a future benefit with each party receivinig a proportionate share of the benefit. Consequently, unless the QDRO ordered a fixed amount or percentage, the formula has precedence.

Long story shorter, it's long past time for you to get an attorney and do not process the QDROs yourself.

The spouse avoids the 10% penalty if she effectively rolls over the distribution into a tax deferred account such as an IRA. It does not have to be routed directly to the IRA as long as it is deposited there within a certain number of days (you need to check and see how days it is. Might be 60 or 180). The penalty will always apply to a distribution regardless of the account, as long as the spouse is under 59 1/2. However, the plans procedures may require it to withhold a the 10% even if there will be no penalty and you would be forced to deposit the balance plus whatever was withheld to avoid the penalty. Since you cannot predict what the plan will do absolutely the safest and cleanest course is a direct roll over and then take a distribution if necessary (thus incurring a 10% penalty). It is important to plan carefully when considering a distribution because not only is there a penalty for being under 59 1/2, there is also the tax implications of the distribution which is now income because it was not previously taxed. So the penality is not the only tax to consider.

Yes. As long as there is a cut off date (valuation date), the value will be calculated based on that date. The additional contributions and value after that date will be yours. As long as there are no separate contributions before the valuation date you should be ok.

The primary (and actually the only real issue) is that the 401K is tax deferred. If she receives the sum she is due from the 401K, however the employee obtains the money to give her, the tax implications are uncertain. If she receives an actual division of the 401K she does not have to pay taxes on that separation as long as the money remains in the separated 401K or is rolled over into some other tax deferred vehicle such as an IRA. She needs to consult with a tax professional to determine how the payment could be or would be treated.

You need to understand what is acceptable to the plan before submitting a new or ammended QDRO to them. Normally you can call the plan and ask for information on submitting a QDRO and what their rules are. I am surprised that they will not accept a specified dollar amount as long as the amount does not exceed the benefit amount. The state in which the dissolution took place usually reserves jurisdiction for follow up matters such as this. You would have to have an attorney represent you in that state unless you were able to move jurisdiction. Either way you will need an attorney. Also, your husband does not have to sign the QDRO. Valid court orders (which a QDRO is) do not require petitioner or respondent signatures but the attorneys who represent them may have to sign. It depends on the court procedures which has jurisdiction in your case.

I have over 30 years of government service. I know how OPM thinks and acts. Even though they did it in 4 months they did it wrong and it took me a year to get them to do it right. Also, OPM will accept the use of the term QDRO in lieu of COAP as long as it substantially looks like a COAP and complies with TItle 5 USC. If the order uses ERISA as the basis it will not be accepted.

I have considerable experience with OPM Court Ordered Benefits Branch (COOB) as a retired fed and respondent in a case. COOB is short staffed and relatively incompetent. The primary work is being accomplished by paralegals, who unlike private sector paralegals have difficulty in comprehending QDROs prepared by attorneys who mistakenly believe they are dealing with an ERISA plan. Consequently, OPM is likely to get it wrong when even when they determine that the DRO is a court order acceptable for processing (COAP). They literally will not do anything unless they have a certified copy of the court in their hands. That would be step 1 in my view. Step 2 is wait for them to get around to processing the order and be prepared for the reconsideration process when they get it wrong. It took me 15 months to get them to accomplish the proper calculations.

Will attempt a short story. State of California Jan 09 Petitioner negotiates, prepares, and submits QDRO to court. QDRO excludes salary increases post separation for calculation of Petitioner's share of benefit May 09 Plan (U.S. Office of Personnel Management) accepts QDRO, performs calculation and begins making payments Jan 10 Petitioner declaration affirms post separation salary exclusion Jun 10 During trial on other matters, expert witness testifies that former spouse was entitled to enhanced benefit under California law (time rule) Jun 10 Judge rules that spouse did not negotiate away entitlement to enhanced benefit (which includes post-separation salary increases in calculating FAS) and rules that Petitioner is entitled to enhanced benefit Aug 10 Petitioner prepares amend QDRO to modify original QDRO, with exclusion deleted. Judge is about to enter the order Am prepared to appeal on grounds that Petitioner waived post-separation salary increases before and after original QDRO was entered and that QDRO was in place and in force for over a year without complaint or objection by Petitioner Additional fact: Unlike many ERISA plans, federal employees are required to continuously contribute to the plan throughout their employment. Questions: 1. Did the judge err in ruling that Petitioner is now entitled to enhanced benefit? 2. Was the negotiated QDRO and the declaration affirming the exclusion sufficient documentation of the Petitioners waiver? 3. Does their seem likely grounds for appeal based on the record as stated above in the summary Collateral Questions Is there any means to shift the jurisdiction to another state since I live on the East Coast and cannot find competent counsel in California from 3000 miles away? Any recommendations for attorneys who can support an appeal in Alameda County, California? Thanks for the comments.