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Expert with respect to what? The applicable law? Construction of a nuclear submarine? Diagnosis of PTSD? It matters.

You began by saying this was to be a shared interest allocation of benefits. You then ask about determining a separate interest. And NOBODY noticed? Just to be clear with respect to shared...... The alternate payee's portion of the participant's defined benefit plan cannot be determining until the participant retires. The formula for a shared interest is, for example: "The alternate payee shall be entitled to receive as her share of the participant's retirement annuity benefit, an amount computed by taking fifty percent (50%) of the unreduced* amount of each monthly payment, if, as and when payable to the participant, multiplied by a fraction, the numerator of which is the number of months during the marriage of the parties that the participant accrued creditable service toward retirement, and the denominator of which is the total number of months of creditable service accrued by the participant at the time of the participant's entry into pay status." *by the actuarial reduction in the retirement annuity required to fund survivor annuity benefits for the alternate payee Computing the alternate payee's share prior to the time set forth above may be interesting, but has no practical use. The parties normally have the power to AGREE to change from and shared to a separate interest allocation, especially when the parties or their attorneys for the trial court have failed to properly articulate the proper formula for a shared interest allocation. Note that I did not mention pre- and post-retirement survivor annuity benefits except at * above. Separate interest allocations don't have survivor annuity benefits. If the Plan Administrator ("PA") has "actual notice" of the pendency of a QDRO and acts contrary to that information, then the PA has breached his/her/its fiduciary duty to both the participant and the alternate payee. Refer them to me and I will be happy to sue in U.S. District Court for damages and my legal fees and expert witness fees. Attached is a Memo re: shared v. separate. Shared v. Separate - 12-31-2024.pdf David

I admit to being smothered by all of this. I don't understand how the Participant can FAIL to make full repayment in 5 years. Logic, (in my world), would be that at the end of 5 years the balance due would automatically become a taxable distribution - and done. Does the Plan Administrator have any duty to notify the Participant that the payment is coming due, or that the abyss is in sight, or of the adverse financial consequences what are on the horizon? My interest in this matter is that I handle divorce mediation and the preparation of QDROs (and similar documents transferring retirement benefits between divorcing parties). The parties are ALWAYS in financial distress. The borrow from their 401(k) plans, they take hardship distributions, they even quit their jobs so they can take post termination distributions in excess of the 50%/$50,000 loan limits. They explore the possibility of SECURE alternatives what would allow immediate in-service annuity payouts. They want to pay for the kid's braces, pay off credit card balances, pre-pay college expenses, cover legal fees and court costs.

DAVID D. Can you cite me some authority for your comment? Thanks,

It's not really a loan like you would make from a bank. The Participant has borrowed his own money, pays himself back, pays interest to himself. Just because the source is the entire plan account doesn't change that reality. Make a taxable distribution to the Participant and the "loan" will be paid off in full .

Whether you are guilty of 1st degree murder, manslaughter, negligent homicide or self defence is matter of intent. Cry havoc and let slip the dogs of war. On the other hand, just because you're paranoid doesn't mean they're not really out to get you. And what matters in court is not what's true. It what you can prove to be true. How do we hate bureaucracies? Let us count the ways? Fraud is like pornography. You know it when you see it. Have a few qualifiers: https://www.law.cornell.edu/uscode/text/18/part-I/chapter-47

State Judges have no problems entering nunc pro tunc QDROs or Judgments: (i) unless the law mandates otherwise, or (ii) unless the parties fail to request it in a timely manner. The PPA of 2006 had no problem providing post-mortem or posthumous QDROs. Caselaw in Maryland permits post-mortem entry of an EDRO with respect to a Maryland State Retirement and Pension System Plan. I have prepared Memos dealing with Post Bankruptcy QDROS I have always wondered why you Administrators are so frightened to do ANYTHING to correct an honest mistake unless you can find a law or a regulation or of Plan Document authorization to do to. The key word in your inquiry is "falsely". Nuance matters. A mistake can be false but not purposeful or intentional or intended to accomplish an immoral or illegal purpose. Or maybe it was intended a accomplish an immoral or illegal purpose. If I call one of my 5 daughters by their wrong name (all the time) what sort of statement have I made?

You should keep in mind that computers were not widely used until the late 1990's. IBM AT - Release Date: August 14, 1984. Original Price: Approximately $6,000 (around $19,400 adjusted for inflation). Discontinuation: April 2, 1987. Processor: Intel 80286 running at 6 MHz and later 8 MHz.Memory: 256 KB to 512 KB IBM XT released in 1984. Maximum conventional memory space of 1 MB I had both. Data on a failed motherboard could not be retrieved. Everything has to be backed up on floppy discs - 5-1/4" and 3-1/2". "A" drives don't work on computers with Apple OS or computers running after Microsoft Windows 7. See attached: Not everybody used these computers until the Wide World Web was created by Tim Berners-Lee in 1989. So you should not assume that anybody will have computerized or retrievable records that will help you find the answer to your questions. You are more likely to have records that were trashed long ago (no "shredding in those days either). The burden of proof is on the parties. Old legal maxim: "In court it doesn't matter what's true. It only matters what you can prove to be true." Niels Bohr: ""nothing exists until it is measured". Christopher Hitchens: "That which can be asserted without evidence, can be dismissed without evidence." Carl Sagan: "Extraordinary claims require extraordinary evidence." Did the REA of 1984 address the issues that would have been applicable in 1996? David

Random comments: Some states have statutes of limitation with respect to the entry or enforcement of a QDRO. This happens most often in states that view a QDRO as a judgment rather than a Court Order intended to implement another court order - the Judgment of Divorce. Other states will examine laches - https://www.law.cornell.edu/wex/laches Another problem is that even if you can trace the plan form then to now, the most recent plan will not have the historical records necessary to adjust for gain and losses and investment experience. This is a problem that I deal with today everytime the in-house Plan Administrators changes its TPA (record keeper). Adjustment for gains and losses can only be made from and after the new TPA is hired. I think this is BS, but nobody has the money for a court battle. You best bet is an interpleader. Let the former spouses fight it out and the judge decide. Your task is ministerial. N.B. I have had QDROs where the Judgment of Divorce was entered as far back as 1993 and no QDRO was entered until the 2010s and it was possible to trace the Plan to date. CYA David

In almost every case an Alternate Payee who is to receive a share of a Participant's 401(k) in accordance with a QDRO entered by a Court has the following options: (a) All or any part of the Alternate Payee's share can be rolled over tax free to an IRA or other eligible retirement plan [like a 401(k) for example - but check with the 401(k) Plan Administrator and make sure they will accept a rollover from a former spouse's account. They may think that the intent is to roll over funds from the another account owned by the Alternate Payee, but that is not the case.] Note that if the Participant's 401(k) account has both Traditional and Roth components, the Alternate Payee will need to have two IRA accounts to receive the rollovers, one for the Traditional portion and one for the Roth portion. As a general rule, the Alternate Payee should not roll over Traditional account funds into a Roth account without first discussing potentially negative tax consequences with a tax accountant, CPA or financial advisor. The amount rolled over to the Alternate Payee's IRA or other eligible retirement account will become taxable income when it is distributed in the future. By law, Roth accounts cannot be rolled into Traditional Accounts and must be rolled over into another Roth account. See "Note" below and attached IRS Rollover Chart. (b) All or part of the Alternate Payee's share can be paid out as a taxable "distribution" - a term of art. It will be subject to state and Federal taxes, but not to the 10% early withdrawal penalty regardless of your age. See IRC 72(t)(2)(C) and - https://www.irs.gov/taxtopics/tc558 and https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-tax-on-early-distributions But see the strange T.C. Memo. 2017-125, Summers v. Commissioner at - https://scholar.google.com/scholar_case?case=4327573022055470859&q=T.C.+Memo.+2017-125&hl=en&as_sdt=20000006 that seems to suggest that an IRA can be exempt from the 10% penalty if transferred directly to the Alternate Payee pursuant to a domestic relations order as defined by IRC §414(p)(1)(B) which relates only to ERISA plans (I think) and not to IRAs. The Plan will explain the options for Federal and State withholding. The amount withheld will be available when the Alternate Payee files his/her income tax returns for the year in which the distribution is made - just like W-2 withholding with respect to employment income. Actual taxes may be more or less depending on the Alternate Payee's total income from all sources, deductions, filing status, etc. Note: that if the Alternate Payee elects a tax-free rollover to an IRA, and a few months later decides that he/she really needs the money that was rolled over into the IRA for something important, the distribution at that point will be subject to state and Federal income taxes AND ALSO the 10% penalty if the Alternate Payee is under age 59-1/2. If the Alternate Payee elects a tax free rollover to another eligible retirement account sponsored by, for example, a current employer. the Alternate Payee may not be able to take a distribution unless and until the Alternate Payee's employment is terminated, for example, by retirement, resignation, discharge or death; although it might be possible to take loan equal to 50% of the vested balance in the account but not more than $50,000.00 - a tax free transaction at that point in time. The foregoing is the information that I give to all of the clients for whom I prepare defined contribution plan QDROs. Unfortunately I think the election in J. Simmons's case cannot be revoked and that the Alternate Payee is SOL and should consider suing whoever suggested the two step unnecessary rollover. IRS Rollover Chart.pdf This is what happens when attorneys who draft Marital Settlement Agreements and Judges who don't know the law enter Divorce Decrees try to use pre-tax retirement assets to adjust for post-tax assets such as the equity in the family home. Assume for illustrative purposes that in the J Simmons scenario the amount of the 401(k) to be rolled over to the Alternate Payee was $200,000. Assume that the Alternate Payee wanted to retain the family home, that the equity in the family home was $100,000, that there were no potential capital gains tax issues, and that the Alternate was to pay the Participant $50,000 for his/her interest interest in the family home. All you have to do it solve for the following equation assumed a combined state and Federal marginal tax rate of 20% or whatever marginal rate can be computed by a CPA or experienced tax preparer. $50,000 (post tax) = .80X X = $62,500 (pre-tax) Now just deduct $62,500 from the $200,000 due to the Alternate Payee = $137,00 rolled over or distributed to the Alternate Payee and you are done. David July 9, 2026

Keep in mind that there is no actual "loan" as we understand that term. A true loan is borrowed money from somebody else, you cousin or a bank. The employee is taking a loan from himself/herself, pays it back to himself/herself, and pays the interest to himself/herself (what is the logic of that?). The only penalty is that the amount of the outstanding loan is not included in the employee's account for purposes of gains, losses and investment experience. It is more like taking $20 from the cookie jar in the kitchen and paying $21 back a week later. Don't lecture me about how the plan defines the "loan" for accounting purposes. The vested portion is owned by the employee, legally and equitably. If it's not repaid it becomes a taxable distribution. At the end of the day the employ receives his/her money and pays the taxes and maybe a penalty. In a divorce context we normally include loans (ignore it) in determining the share to be paid to the alternate payee, unless the loan used for family purposes, in which event we exclude it (net it out). Here is a link to TSP loans. https://www.tsp.gov/tsp-loans/ Here is the IRS link - https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-loans NOTE: THE 5 YEAR PAYBACK LIMIT DOES NOT APPLY IF THE PURPOSE OF THE LOAN TO PURCHASE A PRIMARY RESIDENCE. NOTE THAT PETER IS CORRECT IN HIS OBSERVATION THAT A PLAN CAN LIMIT AN EMPLOYEE TO ONE OR TWO LOANS. THE PLAN CAN ALSO PROVIDE FOR NO LOANS.

What are your questions? Was deceased married at the time of his/her death? Was he/she in litigation for a divorce? Had a QDRO been entered by a court at the time of the divorce? What was exact name of the plan to which the QDRO was directed? Did he/she have a Last Will and Testament? Did he/she set up a trust for the disabled child prior to his/her death? Was it a special needs trust? Was the deceased receiving SSI or SSDI for the disabled child? Was the deceased receiving child support or other public benefits for the disabled child? Is the disabled child eligible for or receiving Medicaid? What were the living arrangements for the disabled child at the time of the deceased party's death? Did the deceased die under circumstance where his/her estate might have a claim for wrongful death? Did the deceased have a last will and testament? Did the deceased have life insurance on his/her life? Identify all of the assets and liabilities of the deceased? Did the deceased have beneficiary designations with respect to all of his/her pension, retirement, investment assets, bank accounts, ete? Does the deceased have a name so I can stop referring to him/her as he/she? Prepare a family tree. Prepare a timeline of relevant events.

If there is nobody named as the beneficiary of the 401(k), then the Plan will normally pay it to the person named in the order of precedence set forth in the Plan Documents, of if there is no order of precedence, then it will be paid in accordance with the applicable state law re: testate or intestate distribution. Or the Plan may file an interpleader action and deposit the funds into the Registry of the Court and wash their hands of the matter. In your case it looks like the child of the decedent will be the one to receive the money (assuming he/she is the only child), but somebody will have to be named as guardian of the property of the child if he/she is a minor, and that guardian is likely to be the child's mother. DSG

It is pretty clear that whoever was hired to prepare the QDRO didn't know what he/she was doing. It is not your job to correct it. Find another QDRO preparer. Attached are some documents that may be useful to your new preparer. The people at TIAA are very helpful. See https://www.tiaa.org/public/support/faqs/retirement-divorce DA_QDRO.docIA_QDRO.docIRA_QDRO.docQDRO_approval_guidelines.pdfQDRO_IRA_LetterofInstruction.docQDRO_RetirementAccumulations.pdf David

I cannot cite chapter and verse like you fine folks, but my thinking is as follows: Assuming that the Plan Administrator is not required to determine whether or not the beneficiary designation is or is not ambiguous until the happening of an "event" such as the death of the Participant (when it is then too late to address it with the now deceased Participant), and if the Plan Administrator now decides post-mortem that the beneficiary designation is in fact ambiguous, would not the Plan's Order or Precedence kick in at that point, or if the Plan does not have an Order of Precedence, wouldn't the state law with respect to testate or intestate distribution then apply? Once the Plan Administrator has determined that the beneficiary designation is ambiguous, I don't think the brothers can make an agreement that would supersede the Order of Precedence or the applicable state law. In other words, is the beneficiary designation is ambiguous it cannot form the basis for any distribution at all. I would must humbly suggest that the Plan has no good options. It's too late to correct what I see as negligence of the Plan to review beneficiary designations at a time when an ambiguity can be addressed. I would not be surprised if ERISA or the Plan document would reject my common sense view of the matter, but in my humble opinion the Plan runs the risk of paying twice. That's why we have interpleader. Too bad if the Plan Sponsor doesn't want to incur legal fees. On the other hand, we have recent case law dealing with substantial compliance, Packaging Corporation of America Thrift Plan for Hourly Employees v.Langdon v. Copiskey, 166 F.4th 645 (2026) that you can find at - https://scholar.google.com/scholar_case?case=1182260352496528209&q=packaging+corporation+of+america&hl=en&as_sdt=4,112,127 See attached Memo I recently prepared. Does it apply to this fact pattern. Only the Shadow knows. A WORD ABOUT SUBSTANTIAL COMPLIANCE.pdf David