StaceyHelton

I would suggest calling OPM's retirement services (https://www.opm.gov/retirement-services/contact-retirement/) and asking if a QDRO or similar document was ever filed with them. You can also check with the court where the divorce took place, they can provide a copy if one was filed.

Even if they were no longer legally married, if the participant made an election for them to be the beneficiary, unless the participant had changed or revoked their beneficiary designation, the spouse (or former spouse) is still the beneficiary unless something in the plan states otherwise. See Kennedy v. DuPont (pdf file - https://www.supremecourt.gov/opinions/08pdf/07-636.pdf).

I used to work for PBGC and was a QDRO Coordinator for 4 years, so I am intimately familiar with how they would administrate such an order. You are correct, the AP would get half of the participant's remaining benefit; any subsequent spouse would be entitled to the remaining survivor benefit. The key would be if the order stated something like "in lieu of the benefits provided in paragraph x" or not. If it did, then the AP would only be entitled to the QPSA benefit, if it did not, then the AP would get both her "separate" share and the QPSA share. Also, although PBGC does not require language dealing with what happens if the participant dies first, most of the QDROs I dealt with still had it; some (not common) even specified that the AP would get nothing if the participant died first. They may no longer allow that (it's been 4 years since I worked there), but it wouldn't surprise me if they did.

Yes, generally to a state agency on behalf of the child. But the way it was handled in the payment system where I worked was that it was a deduction from the participant's benefit; a check went to the state agency, if there was anything left it went to the participant but the participant was taxed on the full pre-QDRO amount. We actually had one participant with a number of child support orders that didn't get any payments for many years, everything went to the agency; the participant did get a 1099-R every year though.

Issue 2 was referring to a child support QDRO, where the AP is not responsible for the taxes, the Participant is. The majority of child support QDROs I have dealt with were for fixed amounts, and they were treated as deductions from the Participant's full amount, so the Participant would be taxed appropriately based on the gross amount. If the taxes were high enough that benefit was lower then the fixed dollar amount, I think we adjusted the taxes to allow for the QDRO to be paid and sent a new W-4P to the participant. Either that, or the system automatically deducted the QDRO before the taxes, I can't recall for certain.

Agreed, I should have worded it to show whatever the plan's QPSA was. When I was at PBGC, one plan had a married normal form of a 65% pop-up. For their QPSA benefit, we'd calculate that benefit, and the surviving spouse would get 65% of what the participant would have received. I haven't actually worked on any plans with a QPSA of 100%; the majority have had the standard 50% of the participant's benefit. And very few of them required the surviving spouse to start at the earliest date available, most allowed the spouse to defer until the participant's NRD (or even RBD in some cases).

Most of the plans that I have worked on provide that the QPSA benefit is calculated as if the participant retired with a 50%J&S benefit immediately prior to the date of death, and the beneficiary receives that 50%. So you calculate the benefit the participant would have been entitled to on that date, and then apply the appropriate J&S reduction factor, then the beneficiary is entitled to the calculated beneficiary amount.

That's different. Every plan I have ever worked on would calculate the increase to the participant's full benefit, then calculate the J&S reduction accordingly. I have never seen a plan increase a QPSA benefit based on the surviving spouse's life expectancy.

At a prior position, we had a participant inquire about the Plan's authority to purchase annuities. The annuities had been purchased and part of the plan pre-ERISA as a way to guarantee the benefits. The successor Plan did amend the Plan recently to specifically allow for annuity purchases as part of a de-risking strategy. It certainly doesn't hurt to amend the plan, and can cover you when a cranky participant requests documentation on the Plan's authority to make such purchases.

Agreed that a shared payment QDRO could grant a former spouse a portion of the participant's benefit, however, once the participant dies, if a new spouse is receiving the surviving spouse benefit, there is no legal way to provide the former spouse any portion of that benefit. When I worked at PBGC, we had a case where a former spouse was trying to get most of the survivor's benefit from the new spouse, however, our QDRO ERISA attorney stated there was absolutely no legal way for that to happen, and that PBGC had litigated a similar case. We refused and disqualified all QDROs that attempted to do so. Edited to add link to PBGC case: https://www.gpo.gov/fdsys/pkg/USCOURTS-dcd-1_09-cv-01907/pdf/USCOURTS-dcd-1_09-cv-01907-0.pdf

One of the important things not yet mentioned is whether or not your husband has commenced his benefit. If he has not, then the former spouse can get a QDRO designating her as surviving spouse. And although we may disagree with it, the courts can and often do, disregard the property settlement agreement when approving a QDRO. It is up to the participant and/or AP to push the court to have it meet the prior agreement instead of providing the AP more or less then what they are entitled to. However, if your husband has already started his benefit, his form of payment cannot now be changed, no matter what kind of QDRO is issued.

Most QDROs also include a clause stating that successor plans are also bound by the terms of the QDRO. If that is the case, it is highly likely that your ex is entitled to a portion of your disability benefit. Your best bet would be to try and get a new QDRO.

Contact the Pension Benefit Guaranty Corporation (PBGC). GM terminated at least one of their plans several years ago, if your benefit is from the plan that was terminated, they may be able to help get it fixed.

Any good divorce attorney should be able to handle it. Unless the divorce decree already meets all of the qualifications for a DRO (I'd suggest a pre-review by the plan to verify), it would probably be easier to just have a separate QDRO approved by a court in NYS.

Any chance of the plan having to pay twice? Doubtful, but courts will sometimes try to tell plans do things that are blatantly against ERISA. The plan should fight any such attempt, since they are not allowed to pay out higher benefits then what the participant is actually entitled to. I know I have had to tell participants and APs that the plan can no longer do anything, they will have to fight it out in court separately. Disclaimer: I am not a lawyer, etc.