fmsinc

"DIvorced plan participant dies. QDRO $$ was allocated to the ex-wife a few months ago. Plan participant dies last week and his bene is still the ex-wife. No updated bene form was completed. She is entitled to his 401k, correct? His contigent benficiares are his 2 sons." Is you statement that "QDRO $$" your way of saying that a portion of the Participant's 401(k) balance was allocated to the ex-wife as the Alternate Payee by a QDRO that was served on and approved by the Plan Administrator? Are you suggesting that there is some other potential recipient for the amount allocated by the QDRO? Confirm that you are aware of the Pension Protection Act of 2006 and 29 C.F.R. 2530.206(c)(1) permitting the entry of a post mortem (posthumous) QDRO so that even if the QDRO is defective it could be reissued and the Plan would have to enforce it. Let's assume that the decedent named the former spouse named his ex-wife as the beneficiary of his 401(k) and never changed that designation. I have never seen a plan that negated a beneficiary designation on divorce. Believe it or not there are Marital Settlement Agreements ("MSA") drafted whereby the Participant agrees to maintain the former spouse as the beneficiary. Was there anything in the MSA or in the Judgment of Divorce that addressed the 401(k) Plan? What did it say? Facts matter. If it said that ex-wife gets $100,000 and the children get the balance, then that's interesting but not defininative. See Kari E. Kennedy, Executrix v. Plan Administrator for Dupont Savings and Investment Plan, 129 S.Ct. 865, 555 U.S. 285 (2009) that involved a situation where the former spouse was deemed by the trial court to have waived her interest in her former husband’s retirement plan. The former husband failed to change the beneficiary of his Plan and on his death the retirement plan proceeds were paid to the former spouse whose name continued to appear on the beneficiary designation in the hands of the Plan Administrator. The Supreme Court said that was the proper outcome, that the Plan Administrator was required to pay the proceeds to the designated beneficiary. BUT.... the question was, can the estate of the husband in Kennedy sue the decedent’s ex-wife for unjust enrichment and recoup her ill gotten gain (which she will have undoubtedly deposited into a bank in the Cayman Islands in a company set up by her brother-in-law through a Cayman attorney whose identity as the owner of these funds will shield the identity of the true owner of the account?) Or how about suing the ex-wife as constructive trustee of the proceeds in her hands? The Supreme Court in Kennedy expressed disclaimed any intention to answer the foregoing question, saying in Footnote 10: "Nor do we express any view as to whether the Estate could have brought an action in state or federal court against Liv to obtain the benefits after they were distributed. Compare Boggs v. Boggs, 520 U.S. 833, 853, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997) ("If state law is not preempted, the diversion of retirement benefits will occur regardless of whether the interest in the pension plan is enforced against the plan or the recipient of the pension benefit"), with Sweebe v. Sweebe, 474 Mich. 151, 156-159, 712 N.W.2d 708, 712-713 (2006) (distinguishing Boggs and holding that "while a plan administrator must pay benefits to the named beneficiary as required by ERISA," after the benefits are distributed "the consensual terms of a prior contractual agreement may prevent the named beneficiary from retaining those proceeds"); Pardee v. Pardee, 2005 OK CIV APP. 27, ¶¶ 20, 27, 112 P.3d 308, 313-314, 315-316 (2004) (distinguishing Boggs and holding that ERISA did not preempt enforcement of allocation of ERISA benefits in state-court divorce decree as "the pension plan funds were no longer entitled to ERISA protection once the plan funds were distributed")." (Emphasis supplied.) Note that the Kennedy decision was consistent with the Maryland case of PaineWebber v. East, 363 Md. 408, 768 A.2d 1029 (2001) - which you can find at - http://scholar.google.com/scholar_case?case=14624602948014812254&q=paine+webber&hl=en&as_sdt=4,21. In that case the husband failed to remove his ex-wife's name as beneficiary of his IRA account [IRAs are not subject by ERISA] valued at about $600,000.00 which, per the agreement of the parties, he was to retain as his property. The husband remarried and then died without having changed the beneficiary. The former spouse filed suit to recover the IRA balance arguing that she was the named beneficiary - which was true. The Court of Appeals held that the former spouse would receive the money despite language in the separation agreement that provided: "Each of the parties hereby expressly waives any legal right either may have under any Federal or State law as a spouse to participate as a payee or beneficiary regarding any interests the other may have in any pension plan, profit-sharing plan, or any other form of retirement or deferred income plan including, but not limited to, the right either spouse may have to receive any benefit, in the form of a lump-sum death benefit, joint or survivor annuity, or pre-retirement survivor annuity pursuant to any State or Federal law, and each of the parties hereby expressly consents to any election made by the other, now or at any time hereafter, with respect to the recipient and the form of payment of any benefit upon retirement or death under any such pension plan, profit-sharing plan, or other form of retirement or deferred income plan." An IRA does not fall under ERISA, but the outcome was the same. There are a growing number of cases where court have found creative ways to circumvent Kennedy post-distribution. So Mr. ratherbereading, I would be grateful is you would quote exactly the language of the Plan document that says would not rely on language in the Plan that speaks of revocation of a beneficiary designation of a former spouse. "It ain't necessarily so." I don't believe it only says "a divorce automatically revokes a beneficiary designation of a former spouse." I would place a small wager that it says MORE than that. Your statement that you didn't look at the Plan language first is disconcerting.

When an employee terminates employment the loan balance normally reduces the vested balance of the account that can be rolled over by the Participant or taken as a direct distribution. Using severance pay is fine, but the loan repayment must be in after tax dollars. Is this the best option for the employee from an income tax point of view? Might not the severance pay kick the employee into a higher tax bracket. This makes me uncomfortable. From a divorce context, if an Alternate Payee is going to receive a share of the Participant's 401(k) plan, outstanding loans can be included or excluded. If they are included, then they are ignored for purposes of computing the value of the account, and the full amount in the 401(k) plan may be marital property. But severance pay is not considered marital property in most states. See below. Most states that have considered it have held that severance pay is a substitute for income lost while the employee looks for a new job and is not a form of deferred compensation that might be considered to be marital property. Even if severance pay is viewed as “marital property”, it is not a qualified plan and is not enforceable with a QDRO or other court order. Or isn’t it just “income” for child support and alimony purposes? In Sharp v. Sharp, 58 Md.App. 386, 473 A.2d 499 (1984), in a discussion of dissipation of marital property, the CSA, cited, “In Re the Marriage of Faulkner, 582 S.W.2d 292, 295-96 (Mo.App.1979) (where jointly owned stocks were endorsed by husband and cashed by wife without sharing the proceeds, and where bank accounts containing wife's severance pay and retirement benefits were appropriated solely by the wife, the trial judge did not abuse his discretion by including these depleted assets in the division of marital property);” Faulkner was also cited in Ross v. Ross, 90 Md. App. 176, 600 A.2d 891 (1992). But if you read the Faulkner case and other cases from Missouri, you will conclude that the Faulkner court was including the severance pay in its determination of a marital property award, and not as marital property itself. And there is a statute in Missouri that specifically describes severance pay as an element of income. Read the unreported decision in Pisano v. Pisano - Nos. 0853 & 2019, September Term, 2014, Court of Special Appeals of Maryland (2015) - https://scholar.google.com/scholar_case?case=16952077831845019052&q=pisano+v.+pisano&hl=en&lr=lang_en&as_sdt=4,21&as_vis=1 If you want to dig a little deeper, see: 1. Siljendahl v. Siljendahl, Not Reported in N.W.2d, 2009 WL 511302, Minn.App., March 03, 2009 (NO. A08-0509) 2. In re Marriage of Lodeski, 107 P.3d 1097, Colo.App., November 18, 2004 (NO. 04CA0515) 3. Ash v. Ash, Not Reported in S.E.2d, 2004 WL 555478, Va.App., March 23, 2004 (NO. 1943-03-2). 4. Dunnan v. Dunnan, 261 A.D.2d 195, 690 N.Y.S.2d 46, 1999 N.Y. Slip Op. 04542, N.Y.A.D. 1 Dept., May 13, 1999 (NO. 1044, 1043). 5. Luczkovich v. Luczkovich, 26 Va.App. 702, 496 S.E.2d 157, Va.App., February 24, 1998 (NO. 2975-96-2) 6. Flynn v. Thompson, Not Reported in A.2d, 1997 WL 908393, Del.Fam.Ct., December 01, 1997 (NO. CN96-07917, 96-13266) 7. In re Marriage of Heupel, 936 P.2d 561, 21 Colorado Journal 575, Colo., April 21, 1997 (NO. 95SC754) 8. In re Marriage of Flud, 926 S.W.2d 201, Mo.App. S.D., June 26, 1996 (NO. 20311) 9. McClure v. McClure, 98 Ohio App.3d 27, 647 N.E.2d 832, Ohio App. 2 Dist., October 05, 1994 (NO. 93 CA 79) 10. Ressler v. Ressler, 434 Pa.Super. 563, 644 A.2d 753, Pa.Super., July 06, 1994 (NO. 03657 PHL 1993) 11. In re Marriage of Miller, 888 P.2d 317, Colo.App., June 02, 1994 (NO. 93CA1240) 12. Moore v. Digital Equipment Corp., 868 P.2d 1170, Colo.App., January 27, 1994 (NO. 93CA0569, 93CA0223) 13. In re Marriage of Holmes, 841 P.2d 388, Colo.App., October 08, 1992 (NO. 91CA1415) 14. Hutto v. Hutto, Not Reported in S.W.2d, 1992 WL 162870, Ark.App., July 08, 1992 (NO. CA 92-51) 15. Ryan v. Ryan, 261 N.J.Super. 689, 619 A.2d 692, N.J.Super.Ch., June 01, 1992 (NO. M-602-90) 16. Mears v. Mears, 305 S.C. 150, 406 S.E.2d 376, S.C.App., June 10, 1991 (NO. 1667) 17. Dillard v. Dillard, 28 Ark.App. 217, 772 S.W.2d 355, Ark.App., June 21, 1989 (NO. CA88-359) 18. Gentry v. Gentry, Not Reported in S.W.2d, 1986 WL 11477, Tenn.Ct.App., October 16, 1986 (NO. 85-318-II) 19. Robert Fensterer v. Gloria D. Fensterer, 1985 WL 384550, 13 Phila.Co.Rptr. 51, Pa.Com.Pl., June 05, 1985 (NO. NO. 7995.) 20. Lawyer v. Lawyer, 702 S.W.2d 790, 288 Ark. 128 (1986) See: 317 cases nationwide collected at - http://scholar.google.com/scholar?q="severance+pay"+"marital+property"&btnG=&hl=en&as_sdt=ffffffffffffe04 See the recent case of Zgrablich v. Cardone Industries, Inc., Civil Action No. 16-4665 (U.S.D.C. ED. Pa. 2016) discussing whether or not a severance plan can be ERISA qualified. https://scholar.google.com/scholar_case?case=13502510190377230837&q=Zgrablich+v.+Cardone+Industries,+Inc.&hl=en&as_sdt=4,39,361

You have a number of issues that you need to resolve. I have cut and pasted your posting and set forth my responses in bold type. "I may have made a grievous financial error. Under the terms of my 2013 QDRO, I'm entitled to 100% of the marital share of my ex's pension. The QDRO language says that you are entitled to "100% of the Participant's total vested account balance under the Plan as of June 1, 2012, plus or minus any earnings and investment gains or losses thereon from June 1, 2012, to the date the Alternate Payee's share is segregated into a separate account in the Alternate Payee's name under the Plan." This is not 100% of the marital share - it's 100% of the total account and that would include any pre-marital share earned prior to June 1, 2012. But all of the language of the QDRO is what you would expect to see in a QDRO for a defined contribution plan, a 401(k) Plan for example, not the Employees’ Retirement Plan of the National Education Association, a defined benefit plan. So either: (i) the QDRO was incorrectly drafted; (ii) or the plan involved was actually intended to address the National Education Association 401(K) Retirement Savings Plan. You need to review the Agreement signed by the parties, or, if there was no written Agreement (and you did not dictate an Agreement into the record in open court) you need to see what the Judge ordered in the Judgment of Divorce. So, to state it differently, the QDRO is talking about apples and the Plan is oranges. QUERY: Are you sure there were not two QDROs issued in the case? His plan's administrator in 2013 told me I'd start getting the pension when my ex retired. (That's my recollection. I'm hoping to find this exchange in writing.) This advice from the plan administrator is consistent with what you would expect if the plan was a defined benefit plan AND if you were to receive a "shared interest" in the Participant's benefits. A shared interest is where you "share" a portion of the Participant's benefit if, as and when he enters pay status. The formula to determine your share, referred to as the "time value" or coverture formula, would be to take 50% of the amount of Participant's gross monthly retirement annuity and multiply it by a fraction, the numerator is the total number of months during the marriage (not beyond June 1, 2012, in your case IF that is the date of divorce) of accrued creditable service toward retirement, and the denominator of which is the total number of months of creditable service earned as of the date of retirement. But there is another option for defined benefit plans - a separate interest wherein you get a share of the pension as if you had been an employee and stopped working and were just waiting for your benefits to start. See attached explaining the difference between shared and separate. In a separate interest annuity you can start to draw your share when he reached age 50 AND is eligible to retire regardless of if he retires or not. In a shared interest annuity you must wait until he retires before you start to receive your share. In a separate interest annuity your share lasts for your entire lifetime. In a shared interest annuity your annuity terminates on his death but you then would normally receive a survivor annuity. The language of your QDRO does not mention survivor annuity benefits. QUITE HONESTLY, I DON'T THINK YOU AND THE PLAN ADMINISTRATOR ARE LOOKING AT THE SAME DOCUMENT. No competent plan administrator would look at the QDRO language you posted and conclude that you were entitled to a shared interest in a defined benefit plan. Every word of your QDRO language is inconsistent with a defined benefit plan. The last time I dealt with NEA my contact was: Plan Administrator of Defined Benefit Plan:c/o Jim Groves, Sr. Benefits Specialist, 1201 16th Street, NW, Washington, DC 20036, jgroves@nea.org, Jim Groves Voice - (202) 822-7611, HR Office: Tel: 202-822-7600. I suggest that you hire a lawyer who knows what he is doing and have him/her go to the Courthouse and get copies of the QDRO(s) entered by the Court, the Judgment of Divorce, the written agreement that you and you former husband signed, or the oral agreement read into the record, and try to figure out what is going on. As far as back payments are concerned, that would only apply if the QDRO gave you a separate interest allocation that you could have taken at some prior date that met the "age 50 rule" mentioned above. But if you didn't take it then you haven't actually lost it. I you took you share in the past you would have received a lesser amount then for a longer life expectancy. If you take it now you will receive a larger share for what is now a shorter life expectancy. From an actuarial standpoint the present value of your share will be the same. But you first need to figure out what is going on. My ex is now age 62. He became eligible to retire at age 60, with 20 years of continuous service. I recently asked him about his intended retirement date. He referred me to his retirement plan administrator, who told me I was eligible to start my benefit "at any time." Have I forfeited either 2 or 9 years of pension payments? Is there any possible way for me to get back payment? My QDRO is below, and the retirement plan is attached. Thanks for helping me think this through! Best, Christie QDRO EXCERPT 8. The parties and the Court intend this Order to constitute a "Qualified Domestic Relations Order" as defined in Section 414(p)(l) of the Internal Revenue Code of 1986, as amended (the "Code”), and Section 206(d)(3)(B) of the Employee Retirement Income Security ^ct of 1974, as amended ("ERISA"). 9. This Order is issued pursuant to Section 20-107.3 of the 1950 Code of Virginia, as amended, which relates to the division of marital property rights between spouses and former spouses in actions for divorce. 10. The Alternate Payee is hereby assigned One Hundred Percent (100%) of the Participant’s total vested account balance under the Plan as of June 1, 2012, plus or minus any earnings and investment gains or losses thereon from June 1, 2012, to the date the Alternate Payee's share is segregated into a separate account in the Alternate Payee's name under the Plan. Such "total vested account balance" shall include all amounts which have accumulated under allof the various accounts and/or subaccounts established and maintained under the Plan on the Participant's behalf. There were no loans against the account as of June 1, 2012. The Alternate Payee's share of the benefits as set forth above shall be allocated on a pro rata basis among all of the accounts and/or investment funds maintained on behalf of the Participant under the Plan. If applicable, the Alternate Payee's share shall be paid from the non-loan assets in the Participant's account(s) on the date that the award is distributed from the Participant's account. 11. As soon as administratively feasible following the determination that this Order as a Qualified Domestic Relations Order, the Alternate Payee’s share as awarded hereunder shall dc segregated and separately maintained in an account established on the Alternate Payee's Behalf and shall additionally be credited with any investment earnings or losses attributable :hereon from the segregation date to the date of total distribution to the Alternate Payee. Notwithstanding the foregoing, the Alternate Payee may elect to receive her benefits in any brm or permissible option under the Plan, including, but not limited to, an immediate lump sum cash payment and/or a direct rollover into an IRA or other qualified retirement account in the Alternate Payee's name. 12. The Alternate Payee shall be eligible to receive payment as soon as administratively feasible following determination that this Order is a Qualified Domestic Relations Order. 13. If the Participant predeceases the Alternate Payee prior to payment of the Alternate Payee's assigned benefits under the Plan, payment to the Alternate Payee shall nonetheless be made under the terms of this Order. If the Alternate Payee dies before full payment to Alternate Payee has been made, the amount unpaid shall be made to the beneficiary designated by the Alternate Payee, or if no beneficiary has been so designated, in accordance 14. No benefits have been previously assigned from the Participant's interest to another alternate payee under another order which has been determined to be a QDRO. 15. This transfer is intended to be a trustee-to-trustee transfer and a non-taxable went to either party; however, if the Alternate Payee elects to receive a direct distribution from he Plan, the Alternate Payee shall be treated as the distributee under 26 U.S.C. Sections 72 and 102 of the Internal Revenue Code on Federal, State and local income tax returns for all retirement benefits and distributions that the Alternate Payee receives due to the benefits assigned herein, and, as such, will be required to pay the appropriate Federal, State, and local income taxes on such distributions. 16. The Alternate Payee shall notify the Plan Administrator in writing of any change in her mailing address as set forth above. 17. If the Plan is terminated, the Alternate Payee shall be entitled to receive the portion of the Participant’s benefits as stipulated herein in accordance with the Plan's termination provisions for participants and beneficiaries. 18. This Order does not require (i) the Plan to provide any type or form of benefit option not otherwise provided under the Plan; (ii) the Plan to provide increased benefits (determined on the basis of actuarial value); or (iii) the payment of any benefits to the Alternate with Plan provisions. Payee which are required to be paid to another alternate payee under another order previously determined to be a Qualified Domestic Relations Order. Shared v. Separate - 02-18-2022.pdf

Please tell me if I understand you question. "[IN AN ERISA QUALIFIED PLAN] Somehow a participant started [RETIRED AND ENTERED PAY STATUS] his pension on a QJSA without actually being married [AT THE TIME OF HIS RETIREMENT]- he was divorced prior to initiating his benefits and apparently just lied on the application? [LIED ABOUT WHAT? ABOUT HAVING A FORMER SPOUSE ENTITLED TO SURVIVOR ANNUITY BENEFITS - HOW DO YOU KNOW THIS?] That participant has now died and the lack of marriage discovered. [BUT IN ORDER TO HAVE A SURVIVOR ANNUITY HE DID NOT NEED TO BE MARRIED AND HAVE A CURRENT SPOUSE, HE ONLY NEEDED TO BE MARRIED AND HAVE A FORMER SPOUSE - SO WHAT IS THE RELEVANCE OF THE "LACK OF MARRIAGE] No payments have been made to the would-be surviving spouse. [IF HE WAS DIVORCED PRIOR TO TO ENTERING PAY STATUS THERE MIGHT NOT BE A SURVIVING SPOUSE BUT THERE MIGHT BE A SURVIVING FORMER SPOUSE] Any thoughts about how the plan should correct for this, if at all? The plan has not been made aware of any QDRO. It seems to me that the plan is just done now, and doesn't have any obligation to pay out the difference between what his SLA would have been and what the QJSA was. [KEEP IN MIND THAT IF THERE WAS A MARITAL SETTLEMENT AGREEMENT OR A JUDGMENT OF DIVORCE AWARDING SURVIVOR BENEFITS TO HIS FORMER SPOUSE, THE PENSION PROTECTION ACT OF 2006 PERMITS THE ENTRY OF A POST-MORTEM/POSTHUMOUS QDRO SO THE MATTER REMAINS OPEN.] AND KEEP IN MIND Advisory Opinion No. 1999-13A , the DOL Division of Fiduciary Interpretation Office of Regulations and Interpretations The full Opinion can be found at https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/1999-13a. The first line of the Opinion states "This is in response to your request on behalf of the UAL Corporation (UAL) and United Air Lines, Inc. (United) for an advisory opinion. Specifically, you ask how a plan administrator should treat domestic relations orders the plan administrator has reason to believe are "sham" or "questionable in nature." Later on the Opinion continues: "You have asked for an advisory opinion as to whether, and if so when, a plan administrator may investigate or question a domestic relations order submitted for review to determine whether it is a valid “domestic relations order” under State law for purposes of section 206(d)(3)(B) of ERISA." The response was as follows inter alia: "When a pension plan receives an order requiring that all or a part of the benefits payable with respect to a participant be paid to an alternate payee, the plan administrator must determine that the judgment, decree or order is a “domestic relations order” within the meaning of section 206(d)(3)(B)(ii) of ERISA — i.e., that it relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child or other dependent of the participant and that it is made pursuant to State domestic relations law by a State authority with jurisdiction over such matters. Additionally, the plan administrator must determine that the order is qualified under the requirements of section 206(d)(3) of ERISA. It is the view of the Department that the plan administrator is not required by section 206(d)(3) or any other provision of Title I to review the correctness of a determination by a competent State authority pursuant to State domestic relations law that the parties are entitled to a judgment of divorce. See Advisory Opinion 92-17A (Aug. 21, 1992). Nevertheless, a plan administrator who has received a document purporting to be a domestic relations order must carry out his or her responsibilities under section 206(d)(3) in a manner consistent with the general fiduciary duties in part 4 of title I of ERISA." "For example, if the plan administrator has received evidence calling into question the validity of an order relating to marital property rights under State domestic relations law, the plan administrator is not free to ignore that information. Information indicating that an order was fraudulently obtained calls into question whether the order was issued pursuant to State domestic relations law, and therefore whether the order is a “domestic relations order” under section 206(d)(3)(C). When made aware of such evidence, the administrator must take reasonable steps to determine its credibility. If the administrator determines that the evidence is credible, the administrator must decide how best to resolve the question of the validity of the order without inappropriately spending plan assets or inappropriately involving the plan in the State domestic relations proceeding. The appropriate course of action will depend on the actual facts and circumstances of the particular case and may vary depending on the fiduciary’s exercise of discretion. However, in these circumstances, we note that appropriate action could include relaying the evidence of invalidity to the State court or agency that issued the order and informing the court or agency that its resolution of the matter may affect the administrator’s determination of whether the order is a QDRO under ERISA.5(5) The plan administrator’s ultimate treatment of the order could then be guided by the State court or agency’s response as to the validity of the order under State law. If, however, the administrator is unable to obtain a response from the court or agency within a reasonable time, the administrator may not independently determine that the order is not valid under State law and therefore is not a “domestic relations order” under section 206(d)(3)(C), but should rather proceed with the determination of whether the order is a QDRO." IT MIGHT BE A GOOD IDEA TO INVESTIGATE AND DETERMINE IF A MARITAL SETTLEMENT AGREEMENT WAS SIGNED BY THE PARTIES AND INCLUDED SURVIVOR BENEFITS, OR IF A JUDGMENT OF DIVORCE ADDRESSED TO SURVIVOR BENEFITS, OR WHETHER A QDRO SHOULD HAVE BEEN BUT WAS NEVER ENTERED, OR WHETHER THE QDRO WAS ENTERED BUT NEVER RECEIVED BY THE PLAN, OR WHETHER THE QDRO WAS RECEIVED BY THE PLAN BUT REJECTED. KEEP IN MIND THAT THE PLAN ADMINISTRATOR HAS A FIDUCIARY RELATIONSHIP TO PROTECT THE PARTICIPANT AND THE ALTERNATE PAYEE. DAVID

It is no wonder that I was not able to find DoL Advisory Opinion 90-46A online. It is bizarre for a number of reasons. First, the QDRO was issued by a Probate Court after the death of the Alternate Payee at a time when she was no longer a "spouse" or a "former spouse" of the Participant. Although we could have a metaphysical argument about whether she was a former spouse, she was in fact a dead spouse. And the QDRO directed the payment of retirement assets to the estate of the Alternate Payee. (What would have happened if the QDRO had directed payment directly to the Alternate Payee? Would the payment have wound up in her estate?) I am put in mind of Al Jolson who used to say, "You ain't seen nothin' yet." The author of the Advisory Opinion says, "In the case at hand, the Court Order was issued in a probate proceeding and would recognize an interest in pension benefits of the surviving spouse solely on the basis of the state community property law." So? 29 USC 1056(d)(B )(3)(ii) [ERISA § 206(d)(3)(B)(ii)] provides: "(ii)the term “domestic relations order” means any judgment, decree, or order (including approval of a property settlement agreement) which— (I)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 (II)is made pursuant to a State domestic relations law (including a community property law)." (Emphasis supplied.) Perhaps "community property laws" were not part of the law in 1992. And as much as some of you guys want to trash DoL publications as not having the force and effect of law, the DoL publication "QDROs - The Division of Retirement Benefits Through Qualified Domestic Relations Orders" is unequivocal: "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). "An order issued in a probate proceeding begun after the death of the participant that purports to recognize an interest with respect to retirement benefits arising solely under state community property law, but that doesn't relate to the dissolution of a marriage or recognition of support obligations, is not a QDRO because the proceeding does not relate to a legal separation, marital dissolution, or family support obligation." (Emphasis supplied.) Note that this case preserves the holding under the facts set forth in AO 90-46A and cites ERISA 260(d)(3)(B). "[ERISA § 206(d)(3)(B); IRC § 414(p)(1); Advisory Opinion 90-46A (Appendix A); see Egelhoff v. Egelhoff, 121 S.Ct. 1322, 149L. Ed. 2d 264 (2001); see Boggs v. Boggs, 520 U.S. 833, 117 S.Ct. 1754 (1997)]" While Jago v. Jago, 2019 PA Super 246, 217 A.3d. 289 (2019) is totally at odds with the foregoing, Mr. and Ms. Jago could have followed the lead of Brown v. Continental Airlines, 647 F.3d 221 (5th Cir. 2011), that is, filed for divorce, had the QDRO executed by the Court, qualified by the Plan Administrator, the money transferred to the wife's IRA, and then remarried. It is in the very nature of Legislatures and Judges to have no idea of the one enduring reality of life in the family law arena - that people have the ability to be very creative when it comes to accomplishing what the people who draft the law are trying to prevent. Even outside of family law, in the early days of my practice the law in DC required the payment of a transfer taxes when real estate was transferred one party to another. But the same tax was not imposed if a party transferred the property to a corporation that he owned, or to himself from a corporation that he owned. So what happened, the owner of the property would simply transfer the real estate corporation that he solely owned. He would then sell the shares of the corporation to the intended buyer of the property tax free. The new owner of the stock would transfer the property from the corporation to himself tax free. This was embarrassingly simple. The legislature never thought of that. David

I hate to point out that BG5150 did not bother to say it is an ERISA qualified plan, but your answers assume that it is so I will go with that. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> And Peter Gulia cites § 206(d)(3)(B)(ii)(I)’s that provides: "(ii)the term “domestic relations order” means any judgment, decree, or order (including approval of a property settlement agreement) which— (I)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 (II)is made pursuant to a State domestic relations law (including a community property law)." >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> Note that I cannot find DoL Advisory Opinion 90-46A anywhere online. If anybody has a copy please post it to this blog. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> See the attached FAQ page from the DoL where at the bottom of the 2nd page is says - "Must a domestic relations order be issued as part of a divorce proceeding to be a QDRO? "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). * * * * "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)" So if the law of Louisiana provides for a transfer to a spouse not in connection with a divorce proceeding, that would be valid. But to CYA I would get an opinion of counsel confirming that to be the case. David USDeptLabor4pageQdroFAQs.pdf

A prudent Plan Administrator, following the advice of a cautious attorney, would have known that there was a pending QDRO and been very careful about paying out the funds to the Participant. Rather It would have been appropriate deposit the money into the Registry of the Court in connection with an Interpleader action and allow the Court to decide what to do with it. Now the Plan is likely to be sued by the Alternate Payee for breach of fiduciary duty. And the Participant will be sued by the Alternate Payee for contempt and/or breach of contract. And the Alternate Payee's attorney will be sued by the Alternate Payee for malpractice. And you will have to figure out what to do about the withholding you sent to the IRS. Did you review and understand the attached. Did you review the underlying Agreement or the Judgment of Divorce to determine if it had all of the minimal information required by IRC 414(p)(2) to qualify as a QDRO even without a formal DRO signed by the Court? Were you looking for a signed copy? Or a certified copy? Or a true teste copy? Did you follow Advisory Opinion No. 1999-13A , the DOL Division of Fiduciary Interpretation Office of Regulations and Interpretations The full Opinion can be found at https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/1999-13a. The first line of the Opinion states "This is in response to your request on behalf of the UAL Corporation (UAL) and United Air Lines, Inc. (United) for an advisory opinion. Specifically, you ask how a plan administrator should treat domestic relations orders the plan administrator has reason to believe are "sham" or "questionable in nature." Later on the Opinion continues: "You have asked for an advisory opinion as to whether, and if so when, a plan administrator may investigate or question a domestic relations order submitted for review to determine whether it is a valid “domestic relations order” under State law for purposes of section 206(d)(3)(B) of ERISA." The response was as follows inter alia: "When a pension plan receives an order requiring that all or a part of the benefits payable with respect to a participant be paid to an alternate payee, the plan administrator must determine that the judgment, decree or order is a “domestic relations order” within the meaning of section 206(d)(3)(B)(ii) of ERISA — i.e., that it relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child or other dependent of the participant and that it is made pursuant to State domestic relations law by a State authority with jurisdiction over such matters. Additionally, the plan administrator must determine that the order is qualified under the requirements of section 206(d)(3) of ERISA. It is the view of the Department that the plan administrator is not required by section 206(d)(3) or any other provision of Title I to review the correctness of a determination by a competent State authority pursuant to State domestic relations law that the parties are entitled to a judgment of divorce. See Advisory Opinion 92-17A (Aug. 21, 1992). Nevertheless, a plan administrator who has received a document purporting to be a domestic relations order must carry out his or her responsibilities under section 206(d)(3) in a manner consistent with the general fiduciary duties in part 4 of title I of ERISA." "For example, if the plan administrator has received evidence calling into question the validity of an order relating to marital property rights under State domestic relations law, the plan administrator is not free to ignore that information. Information indicating that an order was fraudulently obtained calls into question whether the order was issued pursuant to State domestic relations law, and therefore whether the order is a “domestic relations order” under section 206(d)(3)(C). When made aware of such evidence, the administrator must take reasonable steps to determine its credibility. If the administrator determines that the evidence is credible, the administrator must decide how best to resolve the question of the validity of the order without inappropriately spending plan assets or inappropriately involving the plan in the State domestic relations proceeding. The appropriate course of action will depend on the actual facts and circumstances of the particular case and may vary depending on the fiduciary’s exercise of discretion. However, in these circumstances, we note that appropriate action could include relaying the evidence of invalidity to the State court or agency that issued the order and informing the court or agency that its resolution of the matter may affect the administrator’s determination of whether the order is a QDRO under ERISA.5(5) The plan administrator’s ultimate treatment of the order could then be guided by the State court or agency’s response as to the validity of the order under State law. If, however, the administrator is unable to obtain a response from the court or agency within a reasonable time, the administrator may not independently determine that the order is not valid under State law and therefore is not a “domestic relations order” under section 206(d)(3)(C), but should rather proceed with the determination of whether the order is a QDRO." >>>>>>>>>>>>>>>>>>> I can tell you from personal experience that Plan Administrators including OPM and DFAS will not process a Participant's retirement if they have any knowledge that there is even the possibility of a QDRO "out there". Such knowledge may come to them because the Participant may have notified the HR department to drop a spouse from health insurance coverage because they are divorced. The file is flagged from something as little as that. And I have never heard the 18 month rule cited as a "drop dead date" where the Plan's obligation as a fiduciary to the Participant and the Alternate Payee can be disregarded. But perhaps the bottom line is that the underlying obligation of the Participant to pay pension or retirement money to the Alternate Payee is not the QDRO, but the Marital Settlement Agreement or the Judgment of Divorce. The QDRO in most states is regarded as an enforcement tool similar to a garnishment or an attachment. See, e.g. Rohrbeck v. Rohrbeck. https://scholar.google.com/scholar_case?case=6821439692749566017&q=rorhbeck&hl=en&as_sdt=4,21 So if the Participant rolled over his account to an IRA, the Alternate Payee could obtain a new QDRO and serve it on the new IRA custodian, unless, of course, the Court does not have the jurisdiction to enter an Amended QDRO because of, e.g, the state statute of limitations, or the doctrine of laches, or the doctrines of res judicata or collateral estoppel, or because the court did not expressly reserve jurisdiction to do so, or because Court Rules of Procedure placed time limits on how long a party had to ask the court to revise or correct a court order, or because in that state fraud, mistake or irregularity will not avail to extend any of these cut off date. If for some reason no DRO was ever qualified by the Plan, the Participant's obligation would remain. For example, the Military has a 10/10 year rule, that is, unless the marriage of the parties and the years of service by the Member overlap by 10 years, DFAS will not honor a Military Retired Pay Division Order for the payment of the Former Spouse's share of retired pay (but they will honor the SBP part)....period, full stop. The parties have to find a workaround. You may ultimately be found to be blameless, but it will come at a high price. David FAQ - 18 Month Rule.pdf

The odds of you getting a refund from the IRS as close to zero. I think Bri in correct if that's the path you and the Participant take. But the lawyer in me would advise the Participant that he may not have to pay you back at all. In Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, 136 S. Ct. 651, 193 L. Ed. 2d 556, 577 US 136, (2016), the Supreme Court held that pursuant to 502(a)(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”), a Plan Administrator may not recover overpayments from a Participant’s general assets. The decision impacts both retirement and health and welfare plans. So if the Participant has spent the money and it cannot no longer be traced, they you company may find itself bound that that old legal maxis SOL. Richardson v. IBEW, Case No. C19-0772JLR, United States District Court, W.D. Washington, Seattle (2020) overpayments to the Alternate Payee of her share of retirement annuity benefits in accordance with a QDRO were made due to an error made solely by the Plan in computing those benefits. The District court held: "ERISA does not specifically address the ability of plans to recoup." Phillips v. Mar. Assoc.—I.L.A. Local Pension Plan, 194 F. Supp. 2d 549, 555 (E.D. Tex. 2001). However, the Supreme Court directs federal courts to create a body of common law "to fill in the gaps of ERISA." Id. (citing Dedeaux, 481 U.S. at 56; Bruch, 489 U.S. at 110-11)). "When a plan does not specifically allow for recoupment, but nevertheless [the plan] does so, it exercises extra-statutory devices to do so." Id. Thus, when IBEW demanded that Ms. Richardson repay the $130,648.95 overpayment, IBEW—not Ms. Richardson—availed itself of the common law remedy of restitution. See id.; see also Dandurand v. Unum Life Ins. Co. of Am., 150 F. Supp. 2d 178, 184 (D. Me. 2001) ("By recouping the overpayment, [the administrator] has availed itself of the equitable remedy of restitution."). The focus of the court's analysis, therefore, must be on whether IBEW is entitled to rely on this doctrine. See Phillips, 194 F. Supp. 2d at 555. As the court explains below, considerations of the equities in this case and ERISA's guiding principles, lead the court to conclude that IBEW is not entitled to avail itself of this equitable remedy under the specific factual circumstances of this case. “Courts have considered a variety of factors to determine if equitable principles bar recovery of mistaken overpayments to an ERISA plan beneficiary, including (1) the amount of time which has passed since the overpayment was made; (2) the effect that recoupment would have on that income; (3) the nature of the mistake by the administrator; (4) the amount of the overpayment; (5) the beneficiary's total income; and (6) the beneficiary's use of the money at issue. Knapp, 2013 WL 26051, at (citing Wells v. U.S. Steel & Carnegie Pension Fund, Inc., 950 F.2d 1244, 1251 (6th Cir. 1991)); see also Bocchino v. Trs. of Dist. Council of Ironworkers of N. N.J., No. Civ.A. 07-864 PGS, 2008 WL 1844298, at (D.N.J. Apr. 23, 2008) ("Factors pertinent to review include (1) what disposition the beneficiary has made of the overpayment; (2) the overpayment amount; (3) the nature of the trustees' mistake, e.g. negligence; and (4) the time lapsed since the overpayment was made."); Kwatcher v. Mass. Serv. Emps. Pension Fund, 879 F.2d 957, 967 (1st Cir. 1989), abrogated on other grounds by Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 541 U.S. 1 (2004) ("The trial court should consider whatever factors it may reasonably believe shed light on the fairness of reimbursement, and weigh those factors against the backdrop of general equitable considerations and the guiding principles and purposes of ERISA.").” And see Zirbel v. Ford Motor Company, No. 20-1149 (USCA, 6th Cir. 2020) discussing Montanile at - https://scholar.google.com/scholar_case?case=7749864799864234768&q=Zirbel+v.+Ford+Motor+Company&hl=en&lr=lang_en&as_sdt=4,111,126&as_vis=1 In other words, I would explain to my client the your company should pay for it's mistakes. David

If the GAL fees are considered to be in the nature of child support, a QDRO can be used to collect them. See In re: Blaemire, 229 B.R. 665 (1999), - that you can find at https://scholar.google.com/scholar_case?case=7414914616513795651&q=goldberg+v.+miller&hl=en&as_sdt=4,21 holding that attorney fees awarded for representation of children are in the nature of child support and are not dischargeable in Bankruptcy. It contains a very comprehensive analysis of case law relating to this issue. On the other hand, Goldberg* v. Miller, 371 Md. 591, 810 A.2d 947 (2002) https://scholar.google.com/scholar_case?case=7414914616513795651&q=goldberg+v.+miller&hl=en&as_sdt=4,21 held that Maryland did not consider the fees of a GAL to be in the nature of child support. *The "Goldberg" was me, and I never collected a dime. At the legal judgment rate of interest of 10% he owes me north of $45,000 but made himself judgment proof. But I keep renewing the judgment every 12 years.

I assume that a DC participant means "defined contribution" and not the District of Columbia just down the road from where I practice - when we say DC we mean the Nation's Capital. I hate acronyms. But since you said "DRO" I cannot conclude that you are talking about an ERISA qualified Plan, and am reluctant to respond. You may be referring to IRC 408(d)(6) that inexplicably says that a transfer can be made a "spouse or former spouse". Maybe not. In 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 (exactly what did happen). By getting divorced, 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 even though the pilot continues to work at Continental. (Think “separate interest” annuity allocation.) 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. Before you go further, read DoL EBSA Advisory Opinion 1999 13A dealing with sham divorces at - https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/1999-13a ...and note that Advisory Opinion 1999 13A was not cited in Continental for the reason I suspect is because there is nothing in the law of most states that prevents the parties from obtaining a divorce if they have the grounds for divorce set forth in the Code, even though there may be an ulterior motive that may involve, for example, estate or tax planning, or, as in the Continental case, dealing with pension benefits that may be negatively impacted by the impending Bankruptcy of the Plan Sponsor. The reciprocal is also true. Many people remain married for a period of time in order to, for example, give the non-Military party the time necessary to obtain access to lifetime Military based health insurance under the 20/20/20 rule, or give the non-employee's spouse who is in the US pursuant to the employee's spouse's G-4 visa time to obtain a green card (especially important if they have children). In Continental the parties actually divorced so it bears no relationship to a the situation posted by ebjmls21. Jago v. Jago, 2019 PA Super 246 (2019) involved a situation where a happily married parties filed a petition for the entry of a QDRO transferring $400,000 from the husband’s ERISA qualified plan to the wife’s IRA. No divorce action was pending and they admitted had they had no intentions of divorcing. The court analyzed ERISA and the REA and some of the major Federal court decisions and concluded that: “Here, Husband is a participant in an ERISA-governed plan. The parties initiated this case by filing a joint petition for entry of a QDRO for the sole purpose of transferring to Wife's IRA an amount of the Plan benefits, because Wife has a marital property interest in the Plan. See Brown v. Brown, 669 A.2d 969, 972 (Pa.Super. 1995), aff'd, 544 Pa. 360, 690 A.2d 700 (1997) (providing retirement pension benefits, vested and non-vested, are marital property rights subject to equitable distribution upon divorce). But see Boggs, supra. Without the entry of a valid QDRO, the parties' proposed transfer violates ERISA's anti-alienation prohibition. See id.; 29 U.S.C.A. § 1056(d)(1), (3)(A). In their joint petitions and throughout the life of this case, however, Husband and Wife have expressly acknowledged they are married with no pending divorce or other family law matter between them; the parties at no time stated or implied they intended to initiate a support action. Instead, the parties stated in their petitions they wished the Plan benefits to remain marital property upon entry of the proposed QDRO. Thus, the record makes clear there is no current, foreseeable, or desired divorce or domestic relations matter of any kind between Husband and Wife, which is required for the entry of a QDRO under ERISA. See Boggs, supra; Mackey, supra. Under these circumstances, the parties' joint petitions are attempts to circumvent ERISA's anti-alienation proscription. See Boggs, supra; Mackey, supra. The cited persuasive authority leads us to conclude a QDRO is a procedural right derivative of or adjunct to a domestic relations matter, but outside the context of a domestic relations matter, a QDRO is not a distinct, discrete legal claim. See Dorko, supra; Johnston, supra; Ryan, supra; Denaro, supra; Jordan, supra. Accordingly, Wife's claim that a domestic relations action is not a prerequisite to entry of a QDRO fails. “Based upon the foregoing, we hold that absent a divorce or other domestic relations matter pending between spouses, they cannot obtain a QDRO for the sole purpose of moving funds in the participant/spouse's ERISA plan out of the plan to the non-participating spouse.” 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." But cf: See also Cf: United States of American v. Wolas, 520 F.Supp.3d 114 (D. Mass 2021), - https://scholar.google.com/scholar_case?case=9503464558169105254&q=United+States+of+American+v.+Wolas,&hl=en&scisbd=2&as_sdt=20000006 For more cases dealing with sham divorces see - https://scholar.google.com/scholar?start=0&q="sham+divorce"++divorce+"marital+property"+retirement+pension&hl=en&lr=lang_en&as_sdt=20000006&as_vis=1 But there are 7,000 to 10,000 Federal, State, County, City and other municipal plans that may permit such a transfer without a divorce. But the parties will have to deal with the IRS. David

The answer is "yes" if your plan is subject to ERISA: Although it used to be otherwise, the Pension Protection Act of 2006 changed the landscape dramatically. “29 CFR 2530.206 - Time and order of issuance of domestic relations orders (a) Scope. This section implements section 1001 of the Pension Protection Act of 2006 by clarifying certain timing issues with respect to domestic relations orders and qualified domestic relations orders under the Employee Retirement Income Security Act of 1974, as amended (ERISA), 29 U.S.C. 1001 et seq. * * * * * (c) Timing. (1) Subject to paragraph (d)(1) of this section, a domestic relations order shall not fail to be treated as a qualified domestic relations order solely because of the time at which it is issued. (2) The rule described in paragraph (c)(1) of this section is illustrated by the following examples: Example 1. Orders issued after death. Participant and Spouse divorce, and the administrator of Participant's plan receives a domestic relations order, but the administrator finds the order deficient and determines that it is not a QDRO. Shortly thereafter, Participant dies while actively employed. A second domestic relations order correcting the defects in the first order is subsequently submitted to the plan. The second order does not fail to be treated as a QDRO solely because it is issued after the death of the Participant." (Emphasis supplied.) See Thomas v. Sutherland at https://scholar.google.com/scholar_case?case=1601430218420084129&hl=en&as_sdt=6&as_vis=1&oi=scholarr 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).” (Emphasis supplied.) Note that OPM will not honor a FERS or CSRS Court Order Acceptable for Processing entered after the death of the Employee. The same is true with respect to Military Retired Pay Division Orders and Foreign Service Pension System Orders. State, County and Municipal Plans and other Plans not subject to ERISA may or may not honor post mortem or posthumous Retirement Benefits Orders, but many do, some using a nunc pro tunc approach. See the following cases: Patton v. Denver Post Corp., 326 F.3d 1148 (10th Cir.2003) Robinette v. Hunsecker, 212 Md.App. 76, 66 A.3d 1093, 293 Ed. Law Rep. 892, (2013) Griffin v. Griffin, 62 Va. App. 736, 753 S.E.2d 574 (2014) 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) Patterson v. Chrysler Group, LLC, 845 F.3d 756 (USCA 6th Cir. 2017) Garcia-Tatupu v. NFL Player Retirement Plan, Civil Action No. 16-11131-DPW, United States District Court, D. Massachusetts (2017) that you can find at: https://scholar.google.com/scholar_case?case=13784574282734726035&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt. Files v. ExxonMobil Pension Plan, 428 F. 3d 478 (Court of Appeals, 3rd Circuit 2005) David S. Goldberg

Note: ERISA Section 206(d)(3)(G)(ii) requires sponsors of qualified retirement plans to maintain written procedures for the administration of qualified domestic relations orders (“QDROs”), and the Plan Administrator has an obligation to ensure that a domestic relations order received by the plan is “qualified” before making the payments or taking other actions contained in the order. The written procedures will can and should be drafted to reflect the terms of the Plans that the Employer/Sponsor maintains. This will help avoid the time consuming, costly, and sometimes frustrating process of modifying a draft QDRO to make sure that it does not require a form of distribution (or confer other rights) not allowed under the Plan document. Written procedures will: (i) Support more efficient review and helps to ensure that the parties will get the basics right and this will expedite the approval process; (ii) Avoid unnecessary expense and frustration by cutting down on the number of drafts that must be exchanged and minimizing confusion and delay. Here are some well done Plan Procedures. Verizon QDRO Procedures.pdfVerizon QDRO Procedures.pdfVerizon QDRO Procedures.pdfVerizon QDRO Procedures.pdfVerizon QDRO Procedures.pdf 1420693188_ClarkConstructionQDROProcedures.pdf 1200466141_AllstateQDROProceduresMarch2019.pdf 728352269_UPS401(k)Procedures-2.pdf 262733983_WalmartQDROProcedures.pdf 269814975_PruDCStandardProcedures.pdf 1140691144_Northrop4-3-17byFidelity-1.pdf

You are a fiduciary with respect to your Plan Participant. In Advisory Opinion No. 1999-13A , the DOL Division of Fiduciary Interpretation Office of Regulations and Interpretations The full Opinion can be found at https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/1999-13a. The first line of the Opinion states "This is in response to your request on behalf of the UAL Corporation (UAL) and United Air Lines, Inc. (United) for an advisory opinion. Specifically, you ask how a plan administrator should treat domestic relations orders the plan administrator has reason to believe are "sham" or "questionable in nature." Later on the Opinion continues: "You have asked for an advisory opinion as to whether, and if so when, a plan administrator may investigate or question a domestic relations order submitted for review to determine whether it is a valid “domestic relations order” under State law for purposes of section 206(d)(3)(B) of ERISA." The response was as follows inter alia: "When a pension plan receives an order requiring that all or a part of the benefits payable with respect to a participant be paid to an alternate payee, the plan administrator must determine that the judgment, decree or order is a “domestic relations order” within the meaning of section 206(d)(3)(B)(ii) of ERISA — i.e., that it relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child or other dependent of the participant and that it is made pursuant to State domestic relations law by a State authority with jurisdiction over such matters. Additionally, the plan administrator must determine that the order is qualified under the requirements of section 206(d)(3) of ERISA. It is the view of the Department that the plan administrator is not required by section 206(d)(3) or any other provision of Title I to review the correctness of a determination by a competent State authority pursuant to State domestic relations law that the parties are entitled to a judgment of divorce. See Advisory Opinion 92-17A (Aug. 21, 1992). Nevertheless, a plan administrator who has received a document purporting to be a domestic relations order must carry out his or her responsibilities under section 206(d)(3) in a manner consistent with the general fiduciary duties in part 4 of title I of ERISA." "For example, if the plan administrator has received evidence calling into question the validity of an order relating to marital property rights under State domestic relations law, the plan administrator is not free to ignore that information. Information indicating that an order was fraudulently obtained calls into question whether the order was issued pursuant to State domestic relations law, and therefore whether the order is a “domestic relations order” under section 206(d)(3)(C). When made aware of such evidence, the administrator must take reasonable steps to determine its credibility. If the administrator determines that the evidence is credible, the administrator must decide how best to resolve the question of the validity of the order without inappropriately spending plan assets or inappropriately involving the plan in the State domestic relations proceeding. The appropriate course of action will depend on the actual facts and circumstances of the particular case and may vary depending on the fiduciary’s exercise of discretion. However, in these circumstances, we note that appropriate action could include relaying the evidence of invalidity to the State court or agency that issued the order and informing the court or agency that its resolution of the matter may affect the administrator’s determination of whether the order is a QDRO under ERISA.5(5) The plan administrator’s ultimate treatment of the order could then be guided by the State court or agency’s response as to the validity of the order under State law. If, however, the administrator is unable to obtain a response from the court or agency within a reasonable time, the administrator may not independently determine that the order is not valid under State law and therefore is not a “domestic relations order” under section 206(d)(3)(C), but should rather proceed with the determination of whether the order is a QDRO." Unless you want to be a part of litigation I would take a few minutes and investigate what is going on. Not all DROs signed by the judge are prima fascia QDROs. Act in haste, repent at leisure. I would give him a copy of the QDRO and and give him a reasonable time to respond. Freeze the account. See what happens. Technically you have 18 months to qualify the DRO.

I failed to notice that what you suggest is not possible on it's face. You asked, "Can plan allow distribution event to be "later of" separation from service or a specified date?" Since payments cannot be made PRIOR to the separation from service that is an option that can take place if the specified date is prior to separation from service. The question should have been, "Can the plan allow distribution on the date of separation of service, but not prior to ___________________,20________? And I assumed in my previous post that you were talking about a distribution to a Former Spouse/Alternate Payee. Was I mistaken? Shame on me.

Under CSRS and FERS the Former Spouse's payments begin within a month or two after the Employee goes into pay status no matter what the written Agreement of the parties, and no matter what the provisions of the Judgment of Divorce, and no matter what it says in the COAP. In cases where there is a large disparity in age, the parties will often agree that the younger party will not receive a share of the older party's annuity until a certain date in the future. OPM simply ignores this. But in the attached FAQ document put out by DoL you will find: "When can the alternate payee get the benefits assigned under a QDRO? A QDRO that provides for shared payments must specify the date on which the alternate payee will begin to share the participant's payments. Such a date, however, cannot be earlier than the date on which the plan receives the order. With respect to a separate interest, an order may either specify the time (after the order is received by the plan) at which the alternate payee will receive the separate interest or assign to the alternate payee the same right the participant would have had under the plan with regard to the timing of payment. In either case, a QDRO cannot provide that an alternate payee will receive a benefit earlier than the date on which the participant reaches his or her “earliest retirement age”, unless the plan permits payments at an earlier date. This “earliest retirement age” is often a date earlier than the earliest date on which the participant would be entitled to receive his or her retirement benefit. "The plan itself may contain provisions permitting alternate payees to receive separate interests awarded under a QDRO at an earlier time or under different circumstances than the participant could receive the benefit. For example, a plan may provide that alternate payees may elect to receive a lump sum payment of a separate interest at any time. As discussed earlier, section 401(a)(9) of the Code may affect when benefits must be paid under tax-qualified retirement plans. "Reference: ERISA §§ 206(d)(3)(C), 206(d)(3)(D), 206(d)(3)(E); IRC §§ 401(a)(9), 414(p)(2), 414(p)(3), 414(p)(4)" >>>>>>>>>>>>>>>>>>>> And see Q. 3-9 of the more recent DoL publication - attached. >>>>>>>>>>>>>>>>>>>> And, last but not least, 26 USC 414(p)(2)(C) provides: "(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" So I think you are in good shape if you can determine the period to which the QDRO will apply. >>>>>>>>>>>>>>>>>>>>>> BUT...you used the term "separation from service", and that leads me to believe that you may be talking about a Military retirement. In the future it would help is you identified the applicable plan. If it is a Military Plan the answer is likely to be found in the attached DoD-FMR, and it will be controlled by whether or not the separation of service was prior to or after December 23, 2016 and fell under the old rules or the "frozen benefits" law that became effective on December 23, 2016. David Goldberg DoL FAQs.pdf ++++QDROs Booklet from DOL.pdf 1364486998_DoDFMR7Basof08-13-2021.pdf

QDRO for child support. QDRO for alimony. QDRO to adjust marital property rights. In some cases the IRS can reach retirement accounts for unpaid tax obligations. But commercial creditors cannot. As long as you make a distribution to the named beneficiary per Kennedy v. Dupont - https://scholar.google.com/scholar_case?case=16253581861885772265&q=Kari+E.++Kennedy,+Executrix+v.++Plan+Administrator+for+Dupont+Savings+and+Investment+Plan,+129+S.Ct.+865+(2009)&hl=en&as_sdt=20000003 You should be okay. And keep in mind: Advisory Opinion No. 1999-13A , the DOL Division of Fiduciary Interpretation Office of Regulations and Interpretations The full Opinion can be found at https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/1999-13a. The first line of the Opinion states "This is in response to your request on behalf of the UAL Corporation (UAL) and United Air Lines, Inc. (United) for an advisory opinion. Specifically, you ask how a plan administrator should treat domestic relations orders the plan administrator has reason to believe are "sham" or "questionable in nature." Later on the Opinion continues: "You have asked for an advisory opinion as to whether, and if so when, a plan administrator may investigate or question a domestic relations order submitted for review to determine whether it is a valid “domestic relations order” under State law for purposes of section 206(d)(3)(B) of ERISA." The response was as follows inter alia: "When a pension plan receives an order requiring that all or a part of the benefits payable with respect to a participant be paid to an alternate payee, the plan administrator must determine that the judgment, decree or order is a “domestic relations order” within the meaning of section 206(d)(3)(B)(ii) of ERISA — i.e., that it relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child or other dependent of the participant and that it is made pursuant to State domestic relations law by a State authority with jurisdiction over such matters. Additionally, the plan administrator must determine that the order is qualified under the requirements of section 206(d)(3) of ERISA. It is the view of the Department that the plan administrator is not required by section 206(d)(3) or any other provision of Title I to review the correctness of a determination by a competent State authority pursuant to State domestic relations law that the parties are entitled to a judgment of divorce. See Advisory Opinion 92-17A (Aug. 21, 1992). Nevertheless, a plan administrator who has received a document purporting to be a domestic relations order must carry out his or her responsibilities under section 206(d)(3) in a manner consistent with the general fiduciary duties in part 4 of title I of ERISA." "For example, if the plan administrator has received evidence calling into question the validity of an order relating to marital property rights under State domestic relations law, the plan administrator is not free to ignore that information. Information indicating that an order was fraudulently obtained calls into question whether the order was issued pursuant to State domestic relations law, and therefore whether the order is a “domestic relations order” under section 206(d)(3)(C). When made aware of such evidence, the administrator must take reasonable steps to determine its credibility. If the administrator determines that the evidence is credible, the administrator must decide how best to resolve the question of the validity of the order without inappropriately spending plan assets or inappropriately involving the plan in the State domestic relations proceeding. The appropriate course of action will depend on the actual facts and circumstances of the particular case and may vary depending on the fiduciary’s exercise of discretion. However, in these circumstances, we note that appropriate action could include relaying the evidence of invalidity to the State court or agency that issued the order and informing the court or agency that its resolution of the matter may affect the administrator’s determination of whether the order is a QDRO under ERISA.5(5) The plan administrator’s ultimate treatment of the order could then be guided by the State court or agency’s response as to the validity of the order under State law. If, however, the administrator is unable to obtain a response from the court or agency within a reasonable time, the administrator may not independently determine that the order is not valid under State law and therefore is not a “domestic relations order” under section 206(d)(3)(C), but should rather proceed with the determination of whether the order is a QDRO." In other words it is safe to pay out the funds to the named beneficiary. OR You can file an interpleader* under FRCP 22, and offer to deposit the money in question into the Registry of the Court and let the other claimants fight it out. *Read https://legal-dictionary.thefreedictionary.com/interpleader David

If you find that 5th Circuit Case please post it. Thanks.

If a Participant in an ERISA qualified Plan retires and elect a survivor annuity for his then wife, that election is locked in by Federal law and cannot be modified a State Court pronouncement to the contrary. Federal law preempts State law. The Plan will continue to pay. Vanderkam v. Vanderkam, 776 F.3d 883, 892 (D.C. Cir. 2015). The holding in that case confirmed that when a Participant in an ERISA qualified plan retires, his then wife will immediately become irrevocably vested in her entitlement to a QJSA. The only way the Alternate Payee can lose this entitlement is via a waiver previously executed by her within 180 days prior to the commencement date of the Participant's retirement annuity. See 1055 §§(c)(1)(A)(I) and (c)(7)(A). During that 180 day period, the Alternate Payee may also revoke such waiver. See 29 U.S.C. §1055(c)(1)(A)(iii). A waiver executed prior to the applicable election period is void. Read the underlying District Court decision - Vanderkam v. PBGC, 943 F.Supp.2d 130 (USDC - DC Cir. 2014). Read also the well written opinion of the United States District Court for the District of South Carolina in Setzer v. Michelin Retirement Plan - C.A. No. 3:13-cv-00192-MGL. https://scholar.google.com/scholar_case?case=4368934987489954107&q=Setzer+v.+Michelin+Retirement+Plan&hl=en&scisbd=2&as_sdt=3,110,125 In this case the parties were married when the husband retired and was required by ERISA to elect a joint and survivor benefit for his wife. The only way for him to make another election would have been with the consent of his wife. Five years later, after their divorce, Mr. Setzer asked the Plan to permit him to change the survivor annuity election and to name his new wife as the beneficiary. Said the Court: “In his benefit claim, Setzer requests that in light of his divorce, 1) he be permitted to change the Joint and Survivor annuity (50%) form of pension benefit which he elected at the time he was married to Jessica and prior to his retirement and Annuity Commencement Date; 2) Jessica receive no Surviving Spouse Benefits if she survives him; and 3) he be allowed to name a new spouse beneficiary of his pension benefit should he remarry. (AR 19, 38.) As discussed fully below, ERISA and interpreting Fourth Circuit case law preclude Setzer's request. * * * * “In Hopkins v. AT&T Global Information Solutions Co., 105 F.3d 153 (4th Cir. 1997), the Fourth Circuit directly addressed the question of when a surviving spouse benefit vests in a participant's spouse. The Fourth Circuit concluded that under ERISA, "the Surviving Spouse Benefits vest in the spouse married to the participant on the date of retirement." Id. at 156. The Court went on to conclude that "[u]nless the form of benefit is properly changed prior to retirement, the participant is locked into the joint and survivor annuity upon retirement . . . [and] cannot change the form of benefit, even with the current spouse's consent." Id. at 157. Here, the vesting of the Surviving Spouse Benefits occurred on December 1, 2004, the date of Setzer's retirement and commencement of benefits. Consequently, as a matter of law, Setzer cannot change the Joint and Survivor form of benefit, even though Jessica purported to waive any claim or interest she might have in Setzer's pension benefits.”

The people who screwed up need to pay the taxpayer the amount of taxes that the taxpayer was required to pay to Federal and State taxing authorities as a result of their negligence and breach of fiduciary duty - computed at his marginal (next dollar) tax rate. There is no need to think to hard on this one. The damages to the taxpayer need to be made whole by the party(ies) at fault. And if he has to hire a lawyer to sue and collect, the legal fees will also be paid by the party(ies) at fault. See 29 USC Section 1132(g), and 28 USC Section 1927, and FRCP 11(c), and Chambers v. NASCO, Inc., 501 U.S. 32, 44–46 (1991) outlining the court's inherent power to assess fees especially when a party is litigating in bad faith. And, BTW, the Plan Administrator is responsible for the conduct of the TPA so at the end of the day the liability is on the Plan Administrator as the principal as well as the TPA as the agent. If anyone thinks this can be corrected somehow by refiling, then the Plan Administrator and the TPA better hire and pay for a lawyer for the their victim and cover all the costs necessary to fix it. The good news is that you are only dealing with $40,000. Thank whoever you pray to that it wasn't $400,000. If I were the guys attorney I would send a press release to the Wall Street Journal among others. David

HA! In the real world where I live and work it is all to common for Military Members and Federal Employees in particular to: (i) forge their spouse's names waiving survivor benefits and obtain the services of a friendly Notary; or, (ii) submit applications for retirement electronically and simply represent themselves an "unmarried". This doesn't happen as often with Particpants in ERISA plans. Any loosening of the requirements will facilitate the worst in people involved in contentious divorces. I served as an arbitrator in a case where, in the middle of the divorce arbitration process, a Military Member filed for retirement electronically and represented that he was unmarried, and also contrived to obtain a 100% disability retirement pursuant to Chapter 61 of 10 USC §1201 et seq. (not marital property and not divisible in divorce) with the assistance of friendly physician co-workers. I awarded her alimony equal to the amount of what would have been her share of his retired pay, and a judgment for about $780,000 representing the present value of his SBP annuity with the proviso that if he restored the survivor annuity (that would require him to confess to felonious perjury) the judgment would be vacated. By law the judgment accrues interest at the rate of 10% per annum. Some of us live in cynical worlds where we see the worst in people who have no qualms about violating the law and ignoring court orders or written agreements. David

Your post did not state if the Plan was ERISA qualified and whether it was a defined contribution Plan or a defined benefit Plan. Defined benefit plans that are covered by ERISA benefit from the Pension Protection Act of 2006 that authorizes the entry of a post-mortem QDRO. See 29 CFR 2530.206, and read Yale-New Haven Hospital v. Nicholls, No. 13-4725-CV, United States Court of Appeals (2nd Cir. 2015). And even in cases where a Plan is not ERISA qualified, some states are allowing the entry of nunc pro tunc QDRO that will predate the death of the Participant. See the attached Memo. Here are a few interesting cases Lammers v. Rumsfeld, 345 F. Supp. 2d 604 (ED VA 2004) at - http://law.justia.com/cases/federal/district-courts/FSupp2/345/604/2572780/ the New York court granted the divorce without addressing marital property (a common practice in New York). The husband/Military Member died before the trial court addressed property issues, including the Member's Military retirement and the award of Survivor Benefit Plan ("SBP") annuity benefits to the Former Spouse. After the death of the Member, the Former Spouse was no longer a "surviving spouse" or a "former spouse" and was therefore not entitled to receive SBP annuity benefits. Said the Court: “The statutes governing the SBP specify that the primary beneficiary of annuity payments is the "surviving spouse" of the former service member. 10 U.S.C. § 1450(a) (1). A "surviving spouse" is a "widow or widower," and a "widow" includes a person who is "the surviving wife of a person who, if not married to the person at the time he became eligible for retired pay(A) was married to him for at least one year immediately before his death..." 10 U.S.C. § 1447(9) and (7). The statute does not, however, define the meaning of the word "wife." While Dr. Frothingham Lammers asserts that she was still Col. Lammers' wife at the time of his death since only half of her bifurcated divorce had taken place, the ABCMR found that she was not his wife because the New York court involved in her divorce had already entered a decree dissolving the marriage and allowing Dr. Frothingham Lammers to commence using her maiden name.” In Claxton v. Reeves, No. 5-17-0200, Appellate Court of Illinois, Fifth District (2019), found at - https://scholar.google.com/scholar_case?case=5125728826242549427&hl=en&lr=lang_en&as_sdt=20000006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:3751503034025094227:AAGBfm1X5pCLNj_zA2qyIsmi1Camy5g4Rw the husband was a Participant in a firefighters Plan not covered by ERISA, and the Appellate Court reversed the trial court’s grant of a bifurcated divorce that deprived the Alternate Payee of survivor benefits with no benefit to the Participant’s estate. And see the recent case of In the Matter of Marriage of Thrailkill, Kansas Court of Appeals, No. 118,246 (2019), - https://scholar.google.com/scholar_case?case=3170749461376187630&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:10525132011850598234:AAGBfm14Zs395CFlj3Jd2ZpJKn6zMsb-zw another bifurcated divorce situation. The Kansas Court concluded that the provisions of 10 USC 1448(b)(3)(A)(iii) did not apply since the “divorce” in Kansas was somehow not really a “divorce, dissolution or annulment” since it did not deal with the property issues. It will be interesting to see how the Military interprets the Kansas “divorce”. Here in Google Scholar you will find pretty much every case in the US where "bifurcated divorce" and "death" appear in the same case. https://scholar.google.com/scholar?hl=en&as_sdt=ffffffffffffe04&q="bifurcated+divorce"+death&btnG= And here are case where "bifurcated divorce" and "nunc pro tunc" are discussed. David Goldberg Post Morten and Nunc Pro Tunc Memo.pdf

Internal Revenue Manual Section 4.72.9.3.5 et seq. provides: "4.72.9.3.5 (04-01-2006) Spousal Consent Rules REA added the requirement of spousal consent before a participant may take a distribution so that the non-employee spouse would have some control over the form of benefit the participant chooses and would at the very least be aware that retirement benefits existed. Spousal consent: Isn’t required for distributions made in the form of a QJSA. See 26 CFR 1.401(a)-20, Q&A 17. Is required all times for benefits paid in a form other than a QJSA, even when payments are no longer immediately distributable. 4.72.9.3.5.1 (02-26-2015) Exceptions to Spousal Consent Rules See exceptions to the spousal consent rule for distributions in CFR 1.417(e)-1(b)(2) and CFR 1.401(a)-20, Q&A 27, and as follows: For distributions made on or after October 17, 2000, a spouse’s consent isn’t required if the present value of the participant’s non-forfeitable accrued benefit, including both employer and employee contributions, on the date of the distribution is ≤ $5,000. If the plan administrators are satisfied there is no spouse or the spouse can’t be located. If the participant has been abandoned (and the participant has a court order to this effect), or is legally separated. For an incompetent spouse, the legal guardian can provide consent, even if the legal guardian is the participant. The plan must make minimum distributions, per IRC 401(a)(9) even though the employee, or spouse where applicable, fail to consent to the distribution. 26 CFR 1.401(a)(9)-8, Q&A 4." What would be the legal basis for a Plan modifying these rules for a still employed Participant or for a terminated Participant?

The Plan Administrator is required to do what the QDRO says should be done so long as it is not prohibited by the applicable law or the requirements/restrictions of the Plan Document. If the Court says in the QDRO to make this or that election, it is binding on the parties. I think the attached has some application here. Advisory Opinion 1999-13A _ U.S. Department of Labor.pdf

I am a bit lost. Are we talking about a defined benefit plan or a defined contribution plan? What is a "death benefit"? I have never hear the funds in a defined contribution account referred to as a "death benefit". That term is used when describing the proceed of a life insurance policy. I have only heard of funds passing to the beneficiary of a defined contribution account as the "account balance". If husband and wife have a joint saving account at the local bank and one of them dies, the other does not receive a "death benefit". BTW, there is no benefit to dying. David

In Advisory Opinion No. 1999-13A , the DOL, EBSA Division of Fiduciary Interpretation Office of Regulations and Interpretations. The full Opinion can be found at https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/1999-13a. The first line of the Opinion states "This is in response to your request on behalf of the UAL Corporation (UAL) and United Air Lines, Inc. (United) for an advisory opinion. Specifically, you ask how a plan administrator should treat domestic relations orders the plan administrator has reason to believe are "sham" or "questionable" in nature. Later in the Opinion it says: "You have asked for an advisory opinion as to whether, and if so when, a plan administrator may investigate or question a domestic relations order submitted for review to determine whether it is a valid “domestic relations order” under State law for purposes of section 206(d)(3)(B) of ERISA." The response was as follows: "When a pension plan receives an order requiring that all or a part of the benefits payable with respect to a participant be paid to an alternate payee, the plan administrator must determine that the judgment, decree or order is a “domestic relations order” within the meaning of section 206(d)(3)(B)(ii) of ERISA — i.e., that it relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child or other dependent of the participant and that it is made pursuant to State domestic relations law by a State authority with jurisdiction over such matters. Additionally, the plan administrator must determine that the order is qualified under the requirements of section 206(d)(3) of ERISA. It is the view of the Department that the plan administrator is not required by section 206(d)(3) or any other provision of Title I to review the correctness of a determination by a competent State authority pursuant to State domestic relations law that the parties are entitled to a judgment of divorce. See Advisory Opinion 92-17A (Aug. 21, 1992). Nevertheless, a plan administrator who has received a document purporting to be a domestic relations order must carry out his or her responsibilities under section 206(d)(3) in a manner consistent with the general fiduciary duties in part 4 of title I of ERISA." "For example, if the plan administrator has received evidence calling into question the validity of an order relating to marital property rights under State domestic relations law, the plan administrator is not free to ignore that information. Information indicating that an order was fraudulently obtained calls into question whether the order was issued pursuant to State domestic relations law, and therefore whether the order is a “domestic relations order” under section 206(d)(3)(C). When made aware of such evidence, the administrator must take reasonable steps to determine its credibility. If the administrator determines that the evidence is credible, the administrator must decide how best to resolve the question of the validity of the order without inappropriately spending plan assets or inappropriately involving the plan in the State domestic relations proceeding. The appropriate course of action will depend on the actual facts and circumstances of the particular case and may vary depending on the fiduciary’s exercise of discretion. However, in these circumstances, we note that appropriate action could include relaying the evidence of invalidity to the State court or agency that issued the order and informing the court or agency that its resolution of the matter may affect the administrator’s determination of whether the order is a QDRO under ERISA.5(5) The plan administrator’s ultimate treatment of the order could then be guided by the State court or agency’s response as to the validity of the order under State law. If, however, the administrator is unable to obtain a response from the court or agency within a reasonable time, the administrator may not independently determine that the order is not valid under State law and therefore is not a “domestic relations order” under section 206(d)(3)(C), but should rather proceed with the determination of whether the order is a QDRO." I concerns me that not all jurisdictions that have laws relating to QDROs are "States", e.g. the Virgin Islands, Puerto Rico, Guam, the Northern Marianas, American Samoa. Perhaps there is a regulation out there saying that "state" includes "territories" A wrinkle on this issue is the case of 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 (exactly what did happen). By getting divorced, 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 even though the pilot continues to work at Continental. (Think “separate interest” annuity allocation.) 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. But note that DoL EBSA Advisory Opinion 13A mentioned above, dealing with "sham" divorces, was not cited in Continental. The reason I suspect is because there is nothing in the law of most states that prevents the parties from obtaining a divorce if they have the grounds for divorce set forth in the applicable state Code, even though there may be an ulterior motive that may involve, for example, estate or tax planning, or, as in Continental, dealing with pension benefits that may be negatively impacted by the impending Bankruptcy of the Plan Sponsor. The reciprocal is also true. Many people remain married for a period of time in order to, for example, give the non-Military party the time necessary to obtain access to lifetime Military based health insurance under the 20/20/20 rule, or give the non-employee's spouse who is in the US pursuant to the employee's spouse's G-4 visa time to obtain a green card (especially important if they have children). I have been preparing QDROs since 1986, I have never failed to insert the name of the applicable state, and in most cases the actual statutory reference. Another thought occurs to me. In more than a few cases the parties may divorce in one state and one or both may move to another state. A certified copy of the divorce decree will be enrolled in the general jurisdiction court in the new state and the QDRO will issue from that state, but under the law of the state where the divorce was granted. Sometimes you are moving from a "marital property" state to a "community property" state where the law is different. The laws with respect to the allocation of pension and retirement benefits can vary from state to state. Under the law of some states if you fail to mention survivor annuity benefits in the Agreement or the court doesn't mention them in the divorce decree, the alternate payee with not receive them. Some states hold that a general agreement or court order to transfer "retirement benefits" includes both retirement and survivor annuity benefits. Some states hold that all disability retirement benefit (except Military) are marital property and can be divided between the parties. Other states hold that disability benefits are not marital property. Some states recognize common law marriages and others do not. In some states the court only has jurisdiction to enter a QDRO at the time of an annulment or absolute divorce (or thereafter). In other states a QDRO can be entered before the annulment or divorce decree is entered. David