fmsinc

PLENTY OF PEOPLE LIVE AND WANT TO LIVE IN TRAILERS, MOBILE HOMES, GEODESIC DOMES, DOUBLE WIDES, RVS, MOTOR HOMES, CAMPERS, VANS, AND TENTS AND IT IS THEIR PRIMARY RESIDENCE AND, IF IT IS NOT AFFIXED TO THE GROUND, ALLOWS THEM TO TRAVEL IN ORDER TO CONDUCT THEIR BUSINESS. ONE MAN'S CEILING IS ANOTHER MAN'S FLOOR.

A participant and his spouse become divorced prior to the participant's annuity starting date under a defined benefit plan. I ASSUME THIS IS AN ERISA QUALIFIED PLAN AND THAT UNLESS WAIVED BY THE ALTERNATE PAYEE THE WIFE BECAME ENTITLED TO QJSA AND A QPSA, AND THAT THE ANNUITY PAID TO THE PARTICIPANT WAS REDUCED TO PAY THE COST OF THE QJSA AND QPSA. Unlike many plans, benefits are paid from current plan assets (instead of from annuity contracts purchased from an insurance company). I DON'T SEE WHY THIS MATTERS. The participant and his ex-spouse agreed upon a proposed division of his benefit, based upon the fraction of the months in which the couple was married over the participant's entire period of service with the employer. WHERE WAS THIS AGREEMENT LOCATED? IN A MARITAL SETTLEMENT AGREEMENT OR IN THE JUDGMENT OF DIVORCE ON IN THE 11 YEARS LATE QDRO? However, no formal QDRO was entered by a court until 11 years after the participant's annuity starting. THE PLAN IS NOT REQUIRED TO MAKE ANY PAYMENTS UNTIL IT RECEIVES AND HAS QUALIFIED A QDRO. Nevertheless, the participant commenced receiving reduced pension payments based upon the parties' agreed division as of his annuity starting date, in the form of a ten-year certain and life annuity. SO ARE YOU SAYING THAT THE WIFE WAIVED A QJSA AND A QPSA AND AGREED TO A TEN YEAR CERTAIN AND LIFE ANNUITY? The QDRO reaffirms the division between the parties and entitles the ex-spouse to a portion of the participant's total retirement benefit (under the agreed-upon formula) retroactive to his annuity starting date. AT SOME POINT THE PARTICIPANT MUST HAVE APPLIED FOR HIS RETIREMENT BENEFITS. WHAT DOES THAT DOCUMENT HAVE TO SAY ABOUT THE OPTIONS THAT WERE AVAILABLE AND SELECTED? IN THE 40 YEARS THAT I HAVE BEEN PREPARING QDROS I HAVE NEVER SEEN A PLAN MAKE RETROACTIVE PAYMENTS TO THE ALTERNATE PAYEE WHEN THE PAYMENTS WERE ALREADY PAID OUT TO THE PARTICIPANT. Based on DOL Regulations at 29 C.F.R. Section 2530.206, the timing of the entry of the QDRO does not adversely impact its qualification. YOU ARE MISREADING 29 C.F.R. Section 2530.206 THAT ADDRESSES AND RESTATES THE PENSION PROTECTION ACT OF 2006. HERE ARE SOME CASES TO REVIEW: Thomas v. Sutherland at https://scholar.google.com/scholar_case?case=1601430218420084129&q=Thomas+v.+Sutherland+&hl=en&as_sdt=20006 where the U.S. District Court in Utah held: "Although there is no case law precisely on point, the supporting material suggests that this is the appropriate result. The Code of Federal Regulations provides that a DRO does not fail to be treated as a QDRO solely because of the time at which it is issued. 29 C.F.R. 2530.206(c)(1). This includes orders issued after the participant's death, and occasions where a divorced spouse no longer meets the technical definition of a "surviving spouse" under the terms of the plan. 29 C.F.R. 2530.206(c)(1)(ex. 1 & 2). In addition, the Eighth Circuit has found that a domestic relations order can be qualified posthumously if notice is given and the order is filed during the eighteen-month period permitted under ERISA to secure a QDRO. Hogan v. Raytheon, 302 F.3d 854, 857 (8th Cir. 2002). Although different than the case at hand, the trend has been to enforce the terms of an otherwise valid QDRO as it was intended to be enforced, so long as notice was given and the order was filed during the period permitted under ERISA." (Emphasis supplied.) See also, Yale-New Haven Hospital v. Nicholls, 788 F.3d 79, 85 (2d Cir. 2015) where the Court held that two nunc pro tunc Orders issued after the death of the Participant were valid QDROs. Said the Court: “Domestic relations orders entered after the death of the plan participant can be QDROs. In the Pension Protection Act of 2006, Congress made clear that a QDRO will not fail solely because of the time at which it is issued, see Pub. L. No. 109-280, § 1001, 120 Stat. 780 (2006), although several of our sister circuits had already reached that conclusion, see, e.g., Files v. Exxon Mobil Pension Plan, 428 F.3d 478, 490-91 (3d Cir. 2005) (finding that a posthumous order constituted a QDRO), cert. denied, 547 U.S. 1160 (2006); Patton v. Denver Post Corp., 326 F.3d 1148, 1153-54 (10th Cir. 2003) (same); Hogan v. Raytheon Co., 302 F.3d 854, 857 (8th Cir. 2002) (same); Trs. of Dirs. Guild of Am.-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 421-23 (9th Cir. 2000) (same).” Miletello v. R M R Mechanical Inc., 921 F.3d 493 (USCA 5th Cir. 2019) cited Yale-New Haven Hospital v. Nicholls, supra. I AM NOT AWARE OF ANY CASE WHERE THE PPA WAS CITED AS AUTHORITY FOR THE PROPOSITION THAT A PLAN THAT A PLAN MUST PAY ARREARS TO AN ALTERNATE PAYEE THAT HAVE ALREADY BEEN PAID TO THE PARTICIPANT. THE SURVIVOR ANNUITY IS ANOTHER MATTER SINCE THE ALTERNATE PAYEE MUST BE ALIVE IN ORDER TO RECEIVE THAT FUTURE BENEFIT. In addition, the QDRO provides for payment to the ex-spouse for the participant's lifetime (since the 10-year guarantee period has expired), which is a fomr of payment provided under the Plan document. Moreover, case law which is contolling in the circuit in which the Plan is administered and in which the participant and former spouse reside do not compel a different result. This is my question: given the eleven-year period that has elapsed since the annuity starting date, is the payment due to the spouse for the period beginning on the annuity starting date and ending on the date on which the first prospective payment begins under the QDRO, permitted to be increased by interest or some other manner of compensatiing the former spouse for the delay in commencing the benefit payments to her? If the benefit had been provided under an annuity contract, I would be inclined to say no. However, since the benefit is provided from the assets of the plan's trust, I am inclined to conclude that some measure of earnings is due to the former spouse. Also, as a corollary to my question, if you agree that the spouse should be entitled to interest or earnings for the period of the delay in commencing payments to her, how should the plan arrive at an appropriate level of interest or measure of earnings? WITH THE BENEFIT OF AI: 29 CFR § 2530.206 is a Department of Labor regulation that clarifies the timing and order of issuance of Domestic Relations Orders (DROs) under ERISA. It specifically implements section 1001 of the Pension Protection Act of 2006 (PPA) to ensure that a DRO does not fail to be a Qualified Domestic Relations Order (QDRO) simply because of when it was issued. When applied to "retroactive" payments or look-back periods, the interaction between 29 CFR § 2530.206 and ERISA's broader QDRO rules (specifically ERISA § 206(d)(3)) dictates how a plan administrator handles benefits that accumulated or were paid out before the QDRO was finalized. Here is a breakdown of how the regulation impacts retroactive rights and payments. 1. Timing Does Not Disqualify Retroactive Orders The core purpose of § 2530.206 is to protect an alternate payee’s right to secure a QDRO even after major lifecycle or plan milestones have passed. Under § 2530.206(c), an order will not fail to be a QDRO solely because it is issued: After the participant's Annuity Starting Date (when retirement payments have already commenced). After the participant’s death. After a divorce has already been finalized (revising or establishing rights post-decree). Because the regulation explicitly validates post-event orders, courts can draft domestic relations orders that look backward to assign benefits that accrued or should have been paid from an earlier date (e.g., the date of separation or divorce), even if the participant is already retired or deceased. 2. The 18-Month Segregation Period & Retroactivity When a plan administrator receives a DRO, ERISA section 206(d)(3)(H) establishes a strict framework for preserving retroactive amounts while the plan evaluates whether the order qualifies as a QDRO: Segregation of Funds: The plan administrator must separately account for or segregate the amounts that would have been payable to the alternate payee during the determination period if the order had been treated as a QDRO from day one. The 18-Month Window: The plan has up to 18 months (beginning on the date the first payment would be bumpy under the order) to resolve the order's status. Retroactive Payout: If the order is determined to be a QDRO within that 18-month window, the plan administrator must pay the segregated amounts (plus interest) retroactively to the alternate payee. Expiration of the Window: If the 18 months expire without a QDRO determination, the administrator must release the segregated funds to the person who would have received them otherwise (usually the participant). If the order is qualified after the 18 months, the QDRO only applies prospectively, meaning the alternate payee loses the right to recover those specific segregated historical payments directly from the plan. 3. Crucial Limitations on "Retroactive" Plan Demands While § 2530.206 permits an order to be issued late, it does not override ERISA’s fundamental prohibitions on altering a plan's structural or actuarial obligations. An order seeking retroactive payments will fail to be a QDRO if it violates the following: No Increased Actuarial Value A retroactive order cannot force a plan to pay out more total money than it would have under the participant's original benefit structure. If a participant has been drawing a single-life annuity for five years, a retroactive QDRO cannot force the plan to recalculate past distributions in a way that increases the plan's total financial liability. No Re-Annuitization of Past Payments If an order is issued after the annuity starting date, it generally can only allocate a portion of the ongoing monthly annuity payments currently being made to the participant. An order can state that an alternate payee is entitled to a percentage of the participant's future monthly checks. However, if the order attempts to completely recalculate past payments or change the fundamental form of the benefit (e.g., converting a participant's active single-life annuity into a joint and survivor annuity based on the alternate payee's life expectancy), it will be rejected under ERISA § 206(d)(3)(D) because it requires a "type or form of benefit" not otherwise provided. Summary for Drafting and Enforcement If a domestic relations order seeks to capture "retroactive" amounts (e.g., past pension payments that the participant pocketed entirely during a lengthy divorce dispute), the plan itself may not be legally allowed to claw back those funds from the participant to pay the alternate payee. Instead, the remedy for true retroactive payments typically follows one of two paths: Prospective Offsets: The QDRO is structured to give the alternate payee an increased share of the participant's future monthly payments until the past arrearage is mathematically satisfied. Direct Judgment: The domestic relations court enters a separate money judgment directly against the participant for the past-due amounts, rather than trying to force the pension plan to pay retroactively outside of the 18-month segregation rule. Thanks in advance!

If you want to assess blame, it's likely on the attorney for the Alternate Payee. He/she is guilty of malpractice and also a violation of the Rules of Professional Conduct relating to competence. But the point is that the money is no longer in the 401(k) and a would assume that 60 days have elapsed from the date of distribution and you cannot restore it to the 401(k) or to an IRA or other eligible retirement account. In most states the source of the obligation to transfer pension and retirement benefits is in the Marital Settlement Agreement ("MSA") signed by the parties and incorporated but not merged in the Judgment of Divorce, or, if there is no MSA, then the Judgment of Divorce itself. The QDRO is just an enforcement tool like an attachment or garnishment. So what you owe her is the amount that was to be paid as of the "Valuation Date" adjusted for gains, losses and investment experience from the Valuation Date to the Date of Distribution to the Alternate Payee, less the state and Federal income taxes that she will have to pay at her marginal tax rate. Not your marginal rate. I am not sure what you meant when you said you "liquidated" your 401(k). If you actually meant that you rolled it over to an IRA or other eligible retirement account, then you can obtain a new RBO or QDRO and pay your Former Spouse from the IRA or other eligible retirement account and it will be free of tax consequences unless she decides to take a distribution and if that happens the tax consequences are on her. David

From my perspective as a QDRO preparer there is the problem. It is not unusual for Participants in defined contribution plans to do everything imaginable to reduce their account balance and thereby reduce the amount that will ultimately become payable to their soon-to-be former spouse Alternate Payees. They will, for example: (i) retire and roll over the entire amount in their account to an obscure bank (or banks) in the middle of Nowhere, Wyoming, and move it from bank to bank to avoid collection efforts, or perhaps they will distribute the entire balance, pay the least amount of taxes withholding they can get away with, and hide the money in the Royal Bank of Tierra del Fuego or in their broker-in-law's corporate savings account in a bank in Vancouver; or (ii) they will take a maximum loan (not to exceed $50k); or, (iii) they will make a hardship withdrawal. From the perspective of the Alternate Payee it is not helpful to make it easy for the Participant to make a hardship withdrawal by "self-certifying". You probably will not believe this, but PEOPLE LIE! Even fraudulently and under oath and under the penalty of perjury and despite warnings that lying is a felony. People who fill out online applications for retirement from the Federal Government will click the box that says "unmarried". Members of the Military will find a friendly doctor who will give them a 100% disability rating and deprive the Former Spouse from receiving disability income that not be classified as marital property divisible in divorce. [The foregoing is a little more complicated but I didn't want to get down in the weeds and throw out a lot of acronym like CRSC or CRDP.] I am pretty sure that you cannot you cannot permit self-certification unless it's in the Plan Documents. But if self-certification is not permitted, then the Plan Administrator has to decide whether the alleged "hardship" is legit and expose themselves to being sued by the prospective Alternate Payee to whom the Plan Administrator owes a fiduciary duty if they make the wrong call. So if you are going to permit self-certification, and if you put that in the Plan Documents, how about required notice to (and consent by?) the spouse who then will have the burden of filing a Notice of Adverse Claim/Interest, and asking the Court where the divorce is pending to enjoin the hardship withdrawal, and giving actual notice to the Plan Administrator that will likely be told my their attorney to do nothing until the parties agrees or the court rules. David

If she took a distribution the Plan filed or will file a 1099-R and will likely have held back 20% for Federal taxes and perhaps something for State taxes as well. She would have had 60 days from the distribution to redeposit the distribution into an IRA or other eligible retirement account and avoid the payments of taxes (and perhaps the 10% early withdrawal penalty), but she will have to use the 80% she has in hand and add the other 20% from her own pocket. That 20% is in the hands of the IRS and they are not going to give it back. I don't know if the 401(k) from which she took the distribution is an "eligible" retirement account, but I don't see why not. So time is your problem. David

I assume that the employee is paid for the hours he works rather than for what he accomplishes. But, wait. What is "working"?. Enjoy this tune.

QDROphile: Did the Plan have notice that there had been a divorce? Or that there was an Agreement? Or that a QDRO was in the works? If the Plan had notice and was under ERISA or another plan where the underlying law requires a QJSA and a QPSA why did they not pursue that. Did the prospective Alternate Payee file a Notice of Adverse Claim/Interest in the pending court proceeding and serve a copy to the Plan Administrator? The narrative says "employee retired and began receiving the agreed upon portion of pension benefits in the form of a straight life annuity." That makes no sense. The employee would have received the full and unreduced amount of his pension benefits. Or does rocknroll2 familiar with actuarial equivalence I assumed that the a "straight line annuity" means a "single life annuity" but I am not sure that is the case. Or maybe he mean a straight life annuity". Or does he not understand or conflating the concept of actuarial equivalence pursuant to 29 USC Sections (d)(1)(B), (d)(2)(a)(ii), (e)(1)(A) and (e(2). The question asked was, "can payments to the ex-spouse be made retroactively to the annuity starting date" but it doesn't ask FROM WHO? The employee or the Plan? So here are again, wasting our time, trying to figure out the answer to a question that does not contain the required information. It would help if rocknrolls2 would set for the name of the Plan. If it's ERISA qualified he can find it at https://www.efast.dol.gov/5500Search/ David

It depends in part on the source of the obligation to make payments to the Alternate Payee. In some few states that source is the QDRO itself. But in most states the obligation to pay the Alternate payee is found in an Agreement of the parties that has been incorporated but not merged in the Judgment of Divorce, or, if there is no Agreement, in the Judgment of Divorce itself. If the Plan Administrator starts to make payments to the Participant before a QDRO is perfected, the Plan is not going to make retroactive duplicate payments to satisfy the arrears not paid to the Alternate Payee. But if the obligation is based on the Agreement or the Judgment of Divorce, the obligation is still there and the Alternate Payee [and if the collection of the Alternate Payee's share is not barred by a statute of limitation or the doctrine of laches] can sue to collect those arrears from the Participant, but not from the Plan itself. [In FERS and CSRS there is an option of increasing the amount paid to cover arrears. See 5 CFR 838.234 - Collection of arrearages.] But it seems that in your case the Participant retired and began to receive a 'straight line" (that I assume means "single life" annuity) based on the actuarially computed life expectancy of the Participant and with no survivor benefit provisions. You haven't identified the name of the Plan but I would guess that it is a state, county or municipal plan that does not mandate a survivor annuity benefit for a former spouse. And I have the feeling that the Court Order is not actually a "QDRO" since it is not pursuant to ERISA. You said that the parties "agreed". Was there a written agreement? Was it incorporated but not merged in the Decree of Divorce? Did the Agreement and/or the Decree of Divorce t provide for a survivor annuity? Is the Participant still alive? You cite 29 CFR Section 2530.206 where reannulization is addressed in paragraph (c)(2) -Example 3, and (d)(2) - Example 4. I don't understand how you case would permit a change from a single life annuity for the life of the Participant to a single life annuity for the life of the Alternate Payee or to a form of Qualified Joint and Survivor Annuity? Artie M raises the possibility that the QDRO was perhaps drafted as a separate interest allocation and not a shared interest allocation. But in every case I have seen in the past 40 years you cannot elect a separate interest allocation after the Participant retires. And in all events there are no survivor benefits in a separate interest allocation. DSG

Check out https://www.tiaa.org/public/pdf/q/QDRO_approval_guidelines.pdf https://www.tiaa.org/public/support/faqs/retirement-divorce https://www.tiaa.org/content/dam/tiaa/global/doc/word/DA_QDRO.doc https://www.tiaa.org/content/dam/tiaa/global/doc/word/IA_QDRO.doc https://www.tiaa.org/content/dam/tiaa/global/doc/word/IRA_QDRO.doc TIAA will no longer will compute gains and losses for DA accounts. See the Guidelines paragraph 5.a.iv. See my attached Memo In this regard they are following the lead of IRA custodians. David TIAA CREF Issue - Gains and Losses.pdf

Does this help? https://www.federalregister.gov/documents/2026/02/27/2026-03962/employee-or-independent-contractor-status-under-the-fair-labor-standards-act-family-and-medical?utm_campaign=subscription+mailing+list&utm_medium=email&utm_source=federalregister.gov

You did not provide enough information to answer your questions. For example: 1. The exact name of the 175,000 pension and retirement plans that operate within the USA (not including IRAs). These include about 163,000 ERISA qualified plans, plus about 12,000 Federal, State, County, City, and Municipal Plans, International Plan, and Union and Church sponsored plan that dance to their own tune. 2. Whether you had a marital settlement agreement and the exact language set forth in that document? 3. Whether the marital settlement agreed was incorporated but not merged into the Divorce Decree? 4. If there was no marital settlement agreement, what was the exact language in the Divorce Decree? 5. Whether a QDRO or a DRO or a EDRO, or a RBO or other forms of Order was entered by the Court? 6. Was a certified copy sent to the Plan Administrator or Third Party Administrator or Record Keeper? 7. Whether during the past 5 years the Third Party Administrator or Record Keeper changed? New TPAs don't have the records necessary to compute gains and losses. 8. Note that most IRAs do not compote gains and losses. 9. Note the TIAA-CREF do not compute gains and losses on annuity payouts as of January 1, 2023. 10. Did the Plan Administrator or the Third Party Administrator or the Record Keeper approve or "qualify" the QDRO or other form of court order? And sent a letter with instructions and did you follow those instructions. 11 Does the state law permit the allocation of pension and survivor benefits between divorcing parties? 12. If you are dealing with a defined contribution plan like a 401(k) or a 403(b) are there any limitations on when an Alternate Payee can receive his/her share of the Participant's benefits. Some plans do not permit a payout to the Alternate Payee until the Participant is eligible to receive his/her benefits, and that might be at termination of employment (death, quit, retired, terminated. Such plan may have payout options that don't begin to be paid until some future time. 13. Does your state have any laws (statute of limitations, doctrine of laches) that would limit the time within which you must submit the QDRO to the Plan Administrator. 14. If it possible that you or your lawyer simply failed to send a CERTIFIED copy of the QDRO to the Plan Administrator? Or that it didn't have a date filled in? Or that you moved to a new home and didn't advise the Plan Administrator of your new address? 15. It sounds like in your case the intention was to award you a percentage or a hard dollar amount from the Participant's plan as of a division date (the date that it was valued) and that that amount was to be adjusted for gains and losses from that division date to the date that the Plan Administrator segregated your share to a separate account in the plan in your name and for your use and benefit. From the date you share landed in YOUR account it is YOUR MONEY and would normally the adjusted for gains and losses from that date until the Date of Distribution when you can: (i) roll over all or part of your share tax free to an IRA or to another eligible account; or, (ii) take a taxable distribution (paid directly to you) of all or part of your share. 16. Or perhaps your former spouse quit or retired or was fired and just took out all of his/her money and paid the taxes on it and has it hidden under the mattress or in a bank in Tierra del Fuego. Nevertheless here is a Memo with respect to Gains and Losses that may be helpful to you. Did you have a lawyer representing you in your divorce? DSG GAINS AND LOSSES AND INVESTMENT EXPERIENCE 02-04-2025.pdf

Waiver of what? Retirement annuity benefits and/or survivor annuity benefits. In my family law world you might be talking about waiving QJSA and QPSA benefits? Is it an ERISA qualified plan? Or a Federal, State, County, City, or Municipal plan or an International Plan. Is it a defined contribution plan that acting in accordance with Secure 2.0 has added any form of annuitized payout of benefits? Is it an IRA? Is it a waiver set forth in an antenuptial agreement? In what sort of document will be waiver appear? Did the Participant retire during the marriage or after the divorce? In many plans an award or a waiver of survivor annuity benefits executed at retirement during the marriage do not survive a later divorce and must be reinstated by a COAP or MRPDO, for example, FERS and Military. On the other hand, such elections with respect to ERISA qualified plans do survive survive a later divorce. David

This has become a serious problems for those of us you prepare QDROs. We used to rely on the in-house Plan Administrator to adjust for gains, losses and investment experience from the Valuation Date to the Date of Distribution, vel non. But they started to outsource this task to Third Party Administers like Fidelity, MassMutual, Yoya, Vanguard, and invariably they would not have any records prior to the date that they took over as the TSA. Now we have "Record Keepers" and the same problem. It is actually worse than that. IRA custodians will not adjust from date to date. The value to be transferred is determined on the date they make the transfer from one party to the other. Take a look at the attached Fidelity form Effective January 1, 2023, TIAA-CREF is doing the same thing for deferred annuities. Solution - take the AP's share from CREF accounts, not TIAA accounts. There are workarounds in my home state of Maryland, none official. See the attached "Valuing" Memo for a few ideas. Averaging growth in the DOW, S&P 500, Nasdaq and Moody's from date to date is popular. Most useful was my own stockbroker, John Young at UBS, who relied upon the Reynolds case https://scholar.google.com/scholar_case?case=7890958532011854972&q=reynolds+v.+reynolds+marital+property&hl=en&as_sdt=4,21 using a treasury rate/note/bill as a minimum rate of return. See the attached analysis he did for me. It wasn't a big case, but it showed it could be done. The other side didn't buy it and the client decided the benefit was not worth the cost of fighting it Let up know what happens. David Fidelity IRA Form.pdf Valuing Defined Contribution Plans.pdf Sample Case Growth Computation..pdf

There are 163,000+ ERISA qualified retirement and pension plans in the USA are you going to assume that it is your Plan. I would kick it back and require the Order to identify the correct name of the plan. You didn't say that this was a QDRO and that it was a garnishment intended to implement a criminal restitution. In order for that to take place the court would first have to determine that the debtor's spouse did not have a marital interest in the Plan. In US v. Abell, 435 F.Supp.3d 299 (D. Mass.,2020), affirmed 985 F.3d 111 (2021), the husband pleaded guilty to eight counts of wire fraud and money laundering and was sentenced to 97 months incarceration and three years supervised release. The Court also issued an Order of Forfeiture for criminal restitution in the amount of $3,879,750.00. The Government sought a Writ of Garnishment against the husband's assets including his 401(k) plan with an approximate value of $393,500.00. The husband and his wife oppose garnishment of the 401(k) account on the grounds that the wife had a vested interest in the 401(k) account by virtue of her marriage to the husband, and that Massachusetts property law compels equitable distribution of marital assets and, therefore, the wife is entitled to an equitable portion of the funds in the 401(k) account. The court held: "The argument that Massachusetts property law precludes garnishment of defendant's 401(k) Account is unavailing. Persuasive case law indicates that the pre-divorce property interest of an individual in her spouse's ERISA-qualified retirement account is governed exclusively by federal law, not state property law. See, e.g., United States v. Novak, 476 F.3d 1041, 1061 (9th Cir. 2007) (en banc) ("Retirement plans covered by ERISA ... are governed exclusively by federal law."); United States v. Beulke, 892 F. Supp. 2d 1176, 1180 (D.S.D. 2012) ("Federal law, not state community property law, determines whether a person has a 'property or a right to property' interest in an ERISA-qualified pension plan."). It is undisputed that the Abells are still married. In the absence of a divorce decree or other qualifying domestic relations order, state property law will not displace federal law with respect to a spouse's alleged claim to a 401(k) Account subject to a criminal restitution order. See Beulke, 892 F. Supp. 2d at 1180." (Emphasis supplied.) In US v. Brazile, Case No. 4:18-cv-00056 SEP., United States District Court, E.D. Missouri, Eastern Division.(2020), - -https://scholar.google.com/scholar_case?case=17860472826493880578&hl=en&lr=lang_en&as_sdt=6,33&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:12484640753426065479:AAGBfm1agvHLwT5aWZ_N6PDZrK7iWFqV8A&html=&eexpid=320022102 ...involved a case where on July 30, 2013, Steven Brazile ("Steven") pleaded guilty to one count of transportation of securities obtained by fraud, in violation of 18 U.S.C. § 2314. As a part of his plea agreement with the Government, Steven acknowledged that he owed restitution in the amount of $3,902,880.85. The Government has a lien against Steven's property and rights to property under 18 U.S.C. § 3613(c) as a result of the judgment entered against him on November 13, 2013, in the Northern District of Illinois. Before the entry of Steven's sentence and judgment, Lorraine Brazile ("Lorraine"), Steven's then-wife, filed a suit for dissolution of marriage in the Circuit Court of St. Louis County, Missouri, on July 25, 2013. Id. On August 29, 2013, Defendants entered into a voluntary Property Settlement and Separation Agreement ("Agreement"), and the circuit court entered a final judgment of dissolution awarding Lorraine child support and a portion of Steven's pension benefits. On August 24, 2016, Defendants submitted a qualified domestic relations order ("QDRO") to the divorce court, which assigned Lorraine 100% of Steven's lump sum benefit amount and monthly annuity benefits. The QDRO similarly awarded Lorraine 100% of the Braziles' marital home on Vienna Avenue (the "Vienna property"). In September of 2017—four years after their marital dissolution and 13 months after they submitted their QDRO assigning the disputed assets to Lorraine—probation officers conducted a home visit and discovered that Steven and Lorraine were living together with their children and were raising their kids together as a "family." Id. ¶ 28. The Government contends that this demonstrates the Defendants entered into a "sham divorce" to transfer assets to Lorraine that could otherwise have been used to pay victim restitution. The Government alleges fraudulent transfer in violation of 28 U.S.C. § 3304(a)(2) (Count I); fraudulent transfer in violation of 28 U.S.C. § 3304(b)(1)(A) (Count II); and fraudulent transfer in violation of 28 U.S.C. § 3304(b)(1)(B) (Count III). The Government alleges that Steven has violated three provisions of the Federal Debt Collection Procedures Act ("FDCPA"). As a remedy, it asks the Court to void the final judgment and dissolution of property in Defendants' divorce case, enter judgment for the United States for the full value of the property transferred from Steven to Lorraine, and grant the United States a lien against all fraudulently transferred property such that it can seize that property immediately to pay Steven's restitution. By seeking dissolution of agreements to which he is a party, reversal of his transfer of assets to Lorraine, and seizure of the house he lives in as well as other assets that allegedly support him and his family—all in satisfaction of Steven's own debt. The court goes on to consider several evidentiary issues, expert witness qualifications, res judicata, collateral estoppel, waiver, equitable estoppel, and more. The Court then held: "Count III alleges constructive fraud in violation of 28 U.S.C. § 3304(b)(1)(B). Doc. [1] at 11. To prove constructive fraud under that section, the Government must show that Steven transferred assets to Lorraine "without receiving a reasonably equivalent value in exchange for the transfer" at a time when he "intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due." 28 U.S.C. § 3304(b)(1)(B)(ii). "As noted already, the Government alleges the Braziles' divorce settlement gave Lorraine all of the couple's viable assets in order to insulate those assets from Steven's criminal restitution liabilities. The Government thus contends that all the elements of § 3304(b)(1)(B) have been met. Doc. [66] at 5-12." * * * * "By contrast, the Government has produced substantial, undisputed evidence that Steven was aware of his impending restitution liabilities when he signed the divorce settlement. See, e.g., Doc. [85] ¶¶ 15, 17-18, 32. The restitution debt totaled roughly four times what Steven received in the divorce, even if the assets allocated to him are assigned their full value. See Doc. [87] at 31 (explaining that the "grand total" of Steven's share of the divorce settlement amounted to $800,490.0).[7] Steven has neither contradicted this evidence nor produced other evidence that would support a finding in his favor, so the Government is entitled to summary judgment." See also Cf: United States of American v. Wolas, 520 F.Supp.3d 114 (2021) - Criminal Action No. 17-10198-FDS,United States District Court, D. Massachusetts (2021), - https://scholar.google.com/scholar_case?case=9503464558169105254&q=United+States+of+American+v.+Wolas,+Criminal+Action+No.+17-10198-FDS,United+States+District+Court,+D.+Massachusetts+(2021)&hl=en&as_sdt=20000003= another forfeiture case where the parties had been divorced and sought to amend the divorce decree to give the ex-wife the ex-husband's $700,000.00 retirement account. Said the Court: "In Florida, marital assets are distributed equitably upon divorce. Fla. Stat. Ann. § 61.075. Such assets include "[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs." Fla. Stat. Ann. 61.075(6)(a) (emphasis added). A spouse who does not have legal title to a marital asset acquires an interest in that asset only if a court issues a judgment during the divorce proceeding establishing that interest. United States v. Kermali, 60 F. Supp. 3d 1280, 1283 (M.D. Fla. 2014) ("In Florida, however, there is no legal interest in marital assets until a judgment vesting such interest has been entered in a divorce proceeding."); Fla. Stat. § 61.075(8) ("[T]itle to disputed [marital] assets shall vest only by the judgment of a court."). (Emphasis supplied.) In re Michael GONSALVES, Debtor, Monica Gonsalves, Plaintiff v. Michael Gonsalves, Defendant, Bankruptcy No. 12–30233, Adversary No. 13–00023, Signed Oct. 1, 2014, 519 B.R. 466, United States Bankruptcy Court, D. Maryland, at Greenbelt, the Court said: "The Master's Report did not include a statement of the standards employed to determine extant property. But the standards are well established. In determining a marital award in Maryland, a court must determine the amount and value of marital property at trial. Property that is disposed of before trial cannot be declared marital property, with the exception of dissipated property. Omayaka v. Omayaka, 417 Md. 643, 12 A.3d 96, 101 (2011). Generally, "marital property which generates a monetary award must ordinarily exist as "marital property" as of the date of the final decree of divorce based on evidence adduced at the trial on the merits or a continuation thereof. Therefore, property disposed of before commencement of the trial under most circumstances cannot be marital property. Although, "marital property" is defined as "all property, however titled, acquired by either or both spouses during their marriage ...," the legislative scheme of the 1978 Marital Property Act contemplates determination of marital property at the time marriage is dissolved, i.e., when the absolute divorce is granted. On a related matter, see USA v. Wells, No. 23-3969,D.C. No. 3:13-cr-00008-SLG-1, United States Court of Appeals for the 9th Circuit, (September 26, 2025), addressing the right to seize the full amount of a convicted felon’s TSP account under the Mandatory Victims Restitution Act of 1996 (MVRA) in derogation of the spouse’s right to insist on an annuitized payout what would make is subject to a garnishment not to exceed 25%. The purpose of the MVRA is to provide compensation for crime victims and their families. Said the court: “Under the MVRA, the government cannot enforce a restitution order by cashing out a defendant’s retirement plan account if the retirement plan’s terms prohibit the defendant from doing so without spousal consent. Here, FERSA § 8435 provides the relevant terms of Wells’ retirement plan. Section 8435 prohibits Wells from cashing out the balance of his TSP account without his spouse’s consent. Section 8437(e)(3) does not expand the government’s authority under the MVRA, nor does it override FERSA’s spousal protections.” See United States v. Byers, 133 F.4th 824 (USCA 8th Cir. 2025). The IRS brought suit against the husband to enforce a substantial tax lien against the family home that was titled in his sole name. He and his wife claimed that the wife had a property interest in the property as the “marital homestead”, pursuant to Minn. Stat. § 507.02, and, therefore, was entitled to half of the proceeds from the sale of the property. Said the Court: “Although "Minnesota homestead laws," including § 507.02, afford Deanna "extensive protection to safeguard her rights and interests in the homestead property owned by [Ronald]," they "do not vest in [Deanna] a property interest which rises to the level of that recognized under Texas law in United States v. Rodgers, 461 U.S. 677[, 103 S.Ct. 2132]." Id. As a result, Deanna's "homestead interest in the [Wayzata Property] is not in the nature of a property right for which the government need compensate in a forced sale action under 26 U.S.C. § 7403." Id.[4] The district court did not err in determining that Deanna lacked a present property interest in the home and granting summary judgment to the government.” Although Minnesota has the concept of “marital property” in its law, Minnesota Statutes 518.003, neither party argued that the wife had a marital property interest in the proceeds of sale. SOOO... since you have a fiduciary duty to the Participant and a potential Alternate Payee you might want to confirm that there is in fact no such potential Alternate Payee who will suffer a loss of benefits if a divorce action is pending and/or the account with which you are dealing is "marital" or "community" property, and or is not subject to being garnished or attached. And while you are at it, take a look at one of my favorite cases: Brown v. Continental Airlines, Inc., 647 F. 3d 221 (5th Cir., 2011)- https://scholar.google.com/scholar_case?case=4019345202025914766&q=brown+v.+continental+airlines&hl=en&as_sdt=20000003 Continental alleged that a number of pilots and their spouses obtained "sham" divorces for the purpose of obtaining lump sum pension distributions from the Continental Pilots Retirement Plan that they otherwise could not have received without the pilots' separating from their employment with Continental. The pilots were allegedly acting out of concern about the financial stability of Continental and the fear that the Plan might be turned over to the PBGC and that their retirement benefits would be substantially reduced. By divorcing, the pilots were able to obtain QDROs from state courts that assigned 100% (or, in one instance, 90%) of the pilots' pension benefits to their respective former spouses. The Plan provides that, upon divorce, if the pilot is at least 50 years old (as all the pilots in this case were), a former spouse to whom pension benefits are assigned can elect to receive those benefits in a lump sum even though the pilot continues to work at Continental. The former spouses presented the QDROs to Continental and requested payment of lump-sum pension benefits. After the former spouses received the benefits, the couples remarried. Continental sought to obtain restitution under ERISA Section 502(a)(3). The Court of Appeals noted that ERISA § 206(d)(3) limits the QDRO qualification determination to whether the state court decree calls for benefit payments outside the terms of the Plan. It rejected Continental’s expanded reading of § 206, concluding that plan administrators may not question the good faith intent of Participants submitting QDROs for qualification David

I assume that an "order of precedence" (that might be found in the plan documents or in the governing statute or regulations) doesn't stop with spouse and children but keeps going to parents, brothers and sisters, nieces and nephews, next of kin who is entitled to the estate under the laws of the state, and Kevin Bacon.

I am sorry but I don't understand what sort of plan you are talking about. A cash balance plan under ERISA is a defined benefit plan that has a cash value component similar to a defined contribution plan and is therefore a hybrid form of both forms. See attached. So I don't understand your comment about a 401(k) plan with one value and a cash balance with a lesser value, unless, however you are talking about Secure 2.0 options adopted in a defined contribution plan. There are about 175,000 pension and retirement plans in the US (not including IRAs) so details are important. So it would be nice to know if this is a ERISA qualified plan (not church and not union). It would be nice to know why you mentioned QJSA? Did the Plan also have a QPSA? If not, how can that be? It would be nice to know HOW the alternate payee waived his/her rights: (i) in a written marital settlement agreement?; (ii) in a mediated Memo of Understanding?; (iii) in an agreement read into the record in open court?; (iv) in the Judgment of Divorce incorporating but not merging "(i)", "(ii)" or "(iii)"?; (v) in the silence of the Judgment of Divorce about the allocation of pension or retirement benefits?; (vi) in the affirmative statement in the Judgment of Divorce setting forth the non-allocation of pension or retirement benefits?. And it would be nice to know whether the divorce and the waiver took place at the time of the Participant's retirement, in which event such a waiver might not survivor a later divorce. And it would be nice to know if the waiver included the EXACT name of the plan? Northrop Grumman has dozens of different plans. See attached. It would be nice to know if there is a statute of limitations with respect to the entry of a QDRO in your jurisdiction? Keep in mind that you have a fiduciary duty to the Participant and to the Alternate Payee anyone who might become an Alternate Payee. Especially is that the case where you have ACTUAL KNOWLEDGE that there is a potential Alternate Payee. The Participant in your case gave you just enough information to put you in the hot seat. No longer can you rely on your role being merely ministerial. Check with your attorney and my guess is that they will tell you to do nothing until parties agree or the court decides the disputed issues? David A Complete Guide to Cash Balance Plans _ October Three - October Three.pdf Northrop Grumman.csv

WHO CAN SUE UNDER ERISA A plaintiff has standing to bring a claim under ERISA if he/she is a plan participant, beneficiary, or fiduciary. Caples v. U.S. Foodservice, Inc., 444 F. App'x 49, 52 (5th Cir. 2011) (citing 29 U.S.C. § 1132(a)); Cobb, 461 F.3d at 634; Coleman v. Champion Int'l Corp., 992 F.2d 530, 533 (5th Cir. 1993). A "participant" under ERISA is an "employee or former employee" of an employer offering an employee benefit plan. 29 U.S.C. § 1002(7). A "fiduciary" is someone who (1) exercises "discretionary authority . . . respecting management of such plan or . . . disposition of its assets," (2) "renders investment advice for . . . compensation . . . with respect to any moneys or other property of such plan," or (3) "has any discretionary authority or . . . responsibility in the administration of such plan," Id. § 1002(21)(A). A "beneficiary" is defined as "a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder." Id. § 1002(8). In order to qualify as a beneficiary, an individual must have "a reasonable or colorable claim to benefits." Crawford v. Roane, 53 F.3d 750, 754 (6th Cir. 1995); see also Cobb, 461 F.3d at 635-36 (holding that to have standing as a beneficiary under ERISA, a plaintiff must show both that he or she was designated as such by the participant or terms of the plan, and that he or she has a colorable entitlement to benefits under the plan). In Parsons v. Board of Trustees of the Boilermaker-Blacksmith National Pension Trust, Civil Action No. 2:20-cv-00132, USDC (S.D. WV 2020) that you can find at - https://scholar.google.com/scholar_case?case=12166270204191846086&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:14880692104701005079:AAGBfm2qi1_JaXLJvydb4f3quYTnTlLkbA, the Court set forth a good summary of the rights of potential Alternate Payees to sue a pension plan for benefits claimed to be payable by reason of a QDRO. At issue in this case was whether or not the language of the QDRO was broad enough to include survivor annuity benefits. Said the Court - “ERISA was enacted to protect employees and their beneficiaries by ensuring the proper administration of employee benefit plans. Boggs v. Boggs, 520 U.S. 833, 839 (1997). The Retirement Equity Act of 1984 (REA) amended ERISA with respect to surviving spouses in two important ways. REA requires pension plans to provide automatic benefits to surviving spouses. Id. at 843; 29 U.S.C. § 1055(a). Additionally, while ERISA generally prohibits assignment or alienation of benefits under a pension plan, REA provides for a Qualified Domestic Relation Order (QDRO) exception wherein a former spouse or children of a previous marriage may be designated as an alternate payee and thereby "receive all or a portion of the benefits payable with respect to a participant under the plan." 29 U.S.C. § 1056(d)(3)(B)(i)(l). “A domestic relations order is any judgment, decree, or property settlement that "relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant" and "is made pursuant to a State domestic relations law." Id. at § 1056(d)(3)(B)(ii). However, in order for a domestic relations order to qualify as a QDRO, it must meet the following requirements: (1) the order must specify the name and mailing address of the alternate payee and the affected plan participant, (2) the amount or percentage of the participant's benefits to be paid or the means by which that amount will be determined, (3) the number of payments or time period to which the order applies, and (4) each plan to which the order applies. Id. at § 1056(d)(3)(C). Moreover, a QDRO cannot (1) require the plan to provide any type of benefit not otherwise provided, (2) require the plan to provide increased benefits, or (3) require benefits to be paid to an alternate payee which must be paid to another alternate payee under the QDRO. Id. at § 1056(d)(3)(D). “A plan administrator generally has discretion to determine whether a domestic relations order constitutes a QDRO, but such determinations are reviewable by courts. Dorn v. Int'l Bhd. of Elec. Workers, 211 F.3d 938, 946 (5th Cir. 2000). In determining whether a domestic relations order is a QDRO, courts have required substantial compliance with the drafting requirements. Hamilton v. Washington State Plumbing & Pipefitting Indus. Pension Plan, 433 F.3d 1091, 1097 (9th Cir. 2006). The "pivotal question is whether the dissolution order `clearly contains the information specified in the statute that a plan administrator would need to make an informed decision.'" Id. (quoting Stewart v. Thorpe Holding Co. Profit Sharing Plan, 207 F.3d 1143, 1154 (9th Cir. 2000)). “If a domestic relations order qualifies as a QDRO, then "any spouse, former spouse, child, or other dependent of a participant" that is designated as an alternate payee shall be considered a "beneficiary under the plan." Id. at §§ 1056(d)(3)(J)-(K). Thereby, a former spouse can obtain a secured interest in benefits merely by obtaining a QDRO. Id. at 1056(d)(3)(A); Metro. Life Ins. Co. v. Pettit, 164 F.3d 857, 864 (4th Cir. 1998); Hopkins v. AT&T Global Info. Solutions Co., 105 F.3d 153, 157 (4th Cir. 1997). “As noted above, ERISA requires pension plans to provide automatic survivor benefits to retiring participants. Dorn, 211 F.3d at 943. A Qualified Q Annuity (QJ&SA) is the principal mechanism for providing such survivor benefits. Id. "[A] QJ&SA comprises two separate and distinct benefits: (1) An annuity for the life of the participant, and (2) a succeeding annuity for the life of the surviving spouse (if there is one) of not less than 50% of the participant annuity." Id. Generally, in order for one to qualify as a surviving spouse in the context of a QJ&SA they must be married to the participant "(1) during the applicable election period, (2) on the annuity starting date, or (3) at [the participant's] death." Id. at 947 (internal quotation marks omitted). “Former spouses, however, can also receive surviving spouse benefits under certain circumstances. "To the extent provided in any qualified domestic relations order ... the former spouse of a participant shall be treated as a surviving spouse of such participant." 29 U.S.C. § 1056(d)(3)(F)(i) (emphasis added). Federal courts have held that, in order for a former spouse to be entitled to surviving spouse rights, "any assignment of surviving spouse rights in a QDRO must be explicit, rather than implicit." Hamilton, 433 F.3d at 1099; Hopkins, 105 F.3d at 155; Dorn, 211 F.3d at 947. Moreover, where a QDRO is silent as to surviving spouse rights, a designation of alternate payee or beneficiary does not elevate one to the status of a surviving spouse entitled to a survivor annuity under a QJ&SA. Dorn, 211 F.3d at 947. “The detailed requirements for drafting a QDRO have been characterized as a "drafting morass for the lawyer." Hamilton, 433 F.3d at 1096. The Court recognizes "the concern expressed by courts and commentators that the failure of domestic relations lawyers to `navigate the treacherous shoals' of ERISA may harm potential beneficiaries." Id. (quoting Metro. Life Ins. Co. v. Wheaton, 42 F.3d 1080 (7th Cir. 1994)). Nevertheless, "Congress required that QDROs be specific and clear because it was concerned with reducing the expense to plan providers and protecting them from suits for making improper payments." Id. at 1096-97 (quoting In re Gendreau, 122 F.3d 815, 817-18 (9th Cir. 1997)) (internal quotation marks omitted). As an initial matter, the Plaintiff argues that the Court should not consider the QDRO or the Plan Document, because review of such documents is premature at the motion to dismiss stage and would instead convert this motion into one for summary judgment. This argument is without merit. For purposes of a motion to dismiss, "a court may consider official public records, documents central to the plaintiff's claim, and documents sufficiently referred to in the complaint so long as the authenticity of these documents is not disputed." Witthohn v. Fed. Ins. Co., 164 Fed. Appx. 395, 396 (4th Cir. 2006). A court may also consider pension plan documents for a motion to dismiss when a plaintiff relies on such documents in the complaint. Stewart v. Pension Trust of Bethlehem Steel Corp., 12 Fed. Appx. 174, 176 (4th Cir. 2001). Both the QDRO and the Plan Document fall under this umbrella and may be considered in light of the motion to dismiss.” ERISA § 404(a)(1) sets forth the primary duties of an ERISA fiduciary, providing that a fiduciary must: (1) act solely in the interest of plan participants and beneficiaries for the exclusive purpose of providing benefits to participants and their beneficiaries; (2) act with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims; (3) diversify the investments of a plan so as to minimize the risk of large losses; and (4) act in accordance with the documents and instruments governing the plan insofar as they are consistent with the provisions of Titles I and IV of ERISA. 29 U.S.C. § 1104. A fiduciary may be personally liable for, and removed as a fiduciary as a result of, any breaches of the responsibilities, obligations, and duties imposed by the statute while acting as a fiduciary under ERISA. ERISA § 409. 29 U.S.C. § 1109. Generally, to state a claim for breach of fiduciary duty under ERISA, a plaintiff must allege that: (1) the defendant was a fiduciary of an ERISA plan who, (2) acting within his capacity as a fiduciary, (3) engaged in conduct constituting a breach of his fiduciary duty. A good case discussing breach of fiduciary duty is Volz v. General Motors, Civil Action No. 22-cv-3471, United States District Court, E.D. Pennsylvania (October 5, 2023)- https://scholar.google.com/scholar_case?case=10217039916663686201&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:17102308171145443235:AFWwaea94w7XgMVkZLP-Q4RdIOLK&html=&pos=1&folt=kw See also, 29 U.S.C. § 1104(a)(1) (duty of loyalty) and 29 U.S.C. § 1104(a)(1)(B) (duty of prudence). See Barker v. Am. Mobil Power Corp., 64 F.3d 1397, 1403 (9th Cir. 1995) (ERISA's duty to act in the best interests of the plan participants and beneficiaries includes a duty to investigate suspicions that one has concerning the plan); see also Patterson v. Reliance Standard Life Ins. Co., 986 F. Supp. 2d 1140, 1150 (C.D. Cal. 2013). See cases citing Barker at - https://scholar.google.com/scholar?hl=en&as_sdt=20000006&q="Barker+v.+Am.+Mobil+Power+Corp."+"64+F.3d+1397"+"duty"+"investigate"+'"fiduciary"&btnG= AND THREATEN TO SUE AND ASK FOR LEGAL FEES

@Bri Fantastic. How easy was that. Many thanks.

Okay. How do you make those nice blue stickers with, for example, @artie m? Thanks, David

I assume the participant had a 401(k) plan. To what type of plan did the alternate payee transfer his/her interest? To his/her exiting eligible retirement account that happened to be a 401(k)? Why not suggest to the alternate payee that he/she move his/her account to an IRA so he/she will be happy. On top of the foregoing, I am pretty sure the Fidelity table is a single life annuity. https://www.fidelity.com/bin-public/060_www_fidelity_com/documents/UniformLifetimeTable.pdf Table I (Single Life Expectancy) is used for beneficiaries who are not the spouse of the IRA owner - whatever that means, and your client is not the spouse. https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-required-minimum-distributions-rmds So it may be that one time in the history of the universe Fidelity is right. David

I had Fidelity pull that on me with respect to an ERISA qualified defined benefit plan. Their model order (that they consider sacrosanct) required that the Alternate Payee's share be ___________% or $______________. No option for what we call in Maryland, the Bangs formula: 50% of the gross annuity multiplied by a fraction where the numerator is the number of months during the marriage that the Participant accrued creditable service toward retirement, and the demoninator of which is the total number of month of creditable service at the time of retirement = equals the amount due to the Alternate Payee. I wrote to them and patiently explained that 26 USC 414(p)(1)(B)(2) [IRS equivalent of 1056(d)(C)(ii)] provided --- “(2) Order must clearly specify certain facts - A domestic relations order meets the requirements of this paragraph only if such order clearly specifies— “(A) the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order, “(B) the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined, “(C) the number of payments or period to which such order applies, and “(D) each plan to which such order applies." ...and suggested that neither they nor the Plan Sponsor nor the in house Plan Administrator had to right reject a simple formula that has been adopted almost universally in the USA. They went through a few layers and it finally got to their attorneys you approved my language. But it took almost a year and my pointed out to them that they have a fiduciary duty to the Participant and the Alternate Payee and BTW who is your resident agent for service of process. On the other hand I can see where a Plan would not accept a coverture fraction QDRO if the allocation was in the form of a separate interest and was already in pay status. I am pretty sure that you can only use a coverture fraction with a shared interest allocation. There may be another wrinkle since ERISA plans don't require a divorce in order to transfer pension and retirement plan benefits so long as the parties a "legally separated" pursuant to a Court Order. In the absence of a divorce how do you compute the numerator of the coverture fraction or do they use the date of the legal separation. In South Carolina they use the date the Court approved the Marital Settlement Agreement even though it may another period of time that they have to wait until the divorce becomes final. Go to: https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/publications/division-of-retirement-benefits-through-qualified-domestic-relations-orders.pdf and find Q 1-8: Must a domestic relations order be issued as part of a divorce proceeding to be a QDRO? "No. A domestic relations order that provides for child support or recognizes marital property rights may be a QDRO, without regard to the existence of a divorce proceeding. Such an order, however, must be issued pursuant to state domestic relations law and create or recognize the rights of an individual who is an “alternate payee” (spouse, former spouse, child, or other dependent of a participant). And see - https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/publications/qdros.pdf [Reference: ERISA § 206(d)(3)(B); IRC § 414(p)(1); Advisory Opinion 90-46A*; see Egelhoff v. Egelhoff 121 S. Ct. 1322, 149 L. Ed. 2d 264 (2001); see Boggs v. Boggs, No. 97-79 (S. Ct. June 2, 1997), see Boggs v. Boggs, 520 U.S. 833, 117 S. Ct. 1754 (1997)] *You can find this at - https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/advisory-opinions/1990-46a.pdf David Goldberg 301-947-0500

TO: Peter Gulia PC Fiduciary Guidance Counsel Philadelphia, Pennsylvania 215-732-1552 Peter@FiduciaryGuidanceCounsel.com Peter: Thanks for your comments. Let me tell you what I have learned from various sources: 1. You and one of my Maryland colleagues, using simple logic (whatever that is) suggested that the Marital Settlement Agreement (MSA), if there is one, is always incorporated into the Judgment of Absolute Divorce (JAD) that you must send to OPM so they will have complete JAD. My grandkids would say something like "DUH?" 2. You and I both discovered 5 C.F.R. § 838.123(a) - https://www.law.cornell.edu/cfr/text/5/838.123 and realized that "other required supporting information" could easily deemed to include the MSA. 3. Everybody said that they had NEVER been contacted by OPM about the MSA and none of us believed they actually read it. 4. Everybody was aware of 5 CFR 838.101(a)(2): "(2) In executing court orders under this part, OPM must honor the clear instructions of the court. Instructions must be specific and unambiguous. OPM will not supply missing provisions, interpret ambiguous language, or clarify the court's intent by researching individual State laws. In carrying out the court's instructions, OPM performs purely ministerial actions in accordance with these regulations. Disagreement between the parties concerning the validity or the provisions of any court order must be resolved by the court." (Emphasis supplied.) 5. My client was concerned about giving so much information to OPM, even if it was heavily redacted, given that in 2015 OPM suffered a data breach that compromised sensitive, personal, and background investigation files of approximately 21.5 to 22.1 million people. 6. One of my colleagues pointed out the DFAS also requires a copy of the MSA in connection a Military Retired Pay Division Order. 7 . Nobody could remember any other ERISA Plan Administrator every asking for a copy of the MSA. See ESBA Advisory Opinion 1999-13A and Blue v. UAL Corp., 160 F.3d 383, 385 (7th Cir. 1998) - https://scholar.google.com/scholar_case?case=10750404539478630173&q=blue+v.+ual&hl=en&as_sdt=20000003 . 8. You alone led me to SF-3119 - Application for Court-Ordered Benefits for Former Spouse, with the following language: "Supporting documentation must be submitted with this application. This includes an original or certified copy of the court order with the judge's signature that meets all requirements for state certification of court orders. Additionally, all documents referenced in the court orders must be included as well as marriage certificates, divorce decrees, and/or death certificates for additional marriages (see Section C). Divorce decrees include, but are not limited to, the Property/Marital Settlement Agreement, Divorce Decree, or Qualified Domestic Relations Order, etc. If you have already submitted a certified copy of the court order, you do not need to submit it again." (Emphasis supplied). I will update is I receive any other information. Thanks. David Goldberg

For decades OPM has required that when a Former Spouse submits a certified copy of a FERS Court Order Acceptable for Processing ("COAP") for approval, they must also submit a certified copy of the Judgment of Absolute Divorce ("JAD") and a copy of the Marital Settlement Agreement ("MSA") by whatever name it may be called, if there is one. I have a client pushing back on providing the MSA, even a redacted one, for privacy reasons. So I opened my CFR website and have spent HOURS looking for the regulation that required that the MSA be provided. I cannot find it. I contacted a few other COAP preparers that send in the MSA like me, but they don't know the source of that mandate, or any other Plan Administrators that want a certified copy of the JAD, let alone the MSA. Yes, I know that many Plans permit the transfer of pension and/or retirement benefits that are based on a "legal separation" where there is no JAD and will not be until the expiration of some period of time in the future (ex: South Carolina), so the Plan must base its decision on the MSA. But that's not my situation. Ideas? Thanks, David

Notice of Adverse Interest - Claim - Cover Letter 02-12-2026.docxNotice of Adverse Claim-Interest - DSG edits 12-08-2025.docxResponse to blguest. I am not sure that you are not conflating the rights of a beneficiary who is named, vel non, to receive the balance in a defined contribution account and the rights of an Alternate Payee whose benefit is defined by a QDRO and may equal all or a portion of the funds in the account. In the case of an ERISA qualified Plan the Pension Protection Act of 2006 permits a post mortem (posthumous) QDRO to be entered and implemented. See paragraph "(c)"- https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XXV/subchapter-D/part-2530/subpart-C/section-2530.206#p-2530.206(a) This is also true of some state plans including the Maryland State Retirement and Pension System. So you would think that you would have a conflict between the beneficiary (however identified) and the prospective Alternate Payee, but I have never found that to be the case. The Alternate Payee seems to win in all PPA of 2006 cases, even if the QDRO is pending (not signed by the Court, not submitted to the Plan Administrator, not qualified by the Plan Administrator). Maybe I didn't get the Memo. If there is authority addressing such a conflict I would love to see it. Note to the attorney for a prospective Alternate Payee to send a Notice of Adverse Claim/Interest to the Plan Administrators of every Plan in play with copies filed with the Court. Will it do any good? I don't know. It makes them nervous. See attached. See Thomas v. Sutherland at https://scholar.google.com/scholar_case?case=1601430218420084129&q=Thomas+v.+Sutherland+&hl=en&as_sdt=20006 Yale-New Haven Hospital v. Nicholls, 788 F.3d 79, 85 (2d Cir. 2015) Miletello v. R M R Mechanical Inc., 921 F.3d 493 (USCA 5th Cir. 2019) cited Yale-New Haven Hospital v. Nicholls, supra. Griffin v. Griffin, 62 Va. App. 736, 753 S.E.2d 574 (2014) - https://scholar.google.com/scholar_case?case=5601932368354380870&q=griffin+v.+griffin&hl=en&as_sdt=4,47. Rivera v. Lew, District of Columbia Court of Appeals, On Certification from the United States Court of Appeals for the District of Columbia Circuit, Case No. 14-SP-117, 99 A.3d 269 (2014), AND Crosby v. Crosby, 986 F. 2d 79 - Court of Appeals, 4th Circuit 1993 David

If the primary beneficiary predeceased the Participant, the first question is who is the next in line to inherit. I most (?) Plans there is a order of precedence that will look something like this: Designated Beneficiary: As stated in a signed, witnessed writing. Widow/Widower: Spouse. Children: Children and descendants of deceased children. Parents: Surviving parents. Executor/Administrator: Executor or administrator of the estate. Next of Kin: Under state law It appears that ERISA does not set forth a statutory order of precedence, but TSP does: 1. To your spouse; 2. If none, to your child or children equally, and to descendants of deceased children by representation; 3. If none, to your parents equally or to the surviving parent; 4. If none, to the appointed executor or administrator of your estate; or 5. If none, to your next of kin who would be entitled to your estate under the laws of the state in which you resided at the time of your death. and your state law will have a similar statute for intestate succession. In Maryland this is set forth in the following sections of the Estates and Trust Volume of the Maryland Code. § 3–101. Property of estate not allocated by will § 3–102. Share of surviving spouse or domestic partner § 3–103. Division of net estate among surviving issue § 3–104. Absence of surviving issue § 3–105. Absence of heirs § 3–106. Advancements against shares § 3–107. After-born children of decedent § 3–108. Inheritance by parent or parent's relations § 3–109. Relation to decedent through two lines § 3–110. Survival requirements § 3–111. Surviving parents not entitled to distribution from child's estate § 3–112. Parents not entitled to distribution from abandoned child's estate Once you figure out who the beneficiary(ies) will be, then you need to determine how to get the money to them. Usually a family member will have opened an estate and you will deal with the Executor or Personal Representative of the estate. If you know the identity of the beneficiary(ies) and they know they have money coming their way, they will quickly open the estate. If that doesn't work our you need to talk to the Register of Will or the Orphan's Court, whatever they call it, and ask them what to do. And of course you need to contact a local estates and trust lawyer. Of course you cannot keep the money. And of course you need to monitor your Participants and make sure they have designated a beneficiary so this problem does not occur in the future. And of course you should add an order of precedence to the Plan. .