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From a family lawyer's perspective this is a very bad idea. First, a 50% joint and survivor annuity more closely approximates the amount or retirement annuity benefits received by an Alternate Payee per a QDRO. Second, there is a cost to providing a QJSA - an actuarial reduction in the retirement annuity to deal with the payment of benefits over two lifetimes. Third, I know of only one ERISA qualified plan that will allocate the cost of the QJSA to the Alternate Payee if directed to do so in the QDRO. Such an allocation is common in Federal retirement plans (FERS, CSRS and Military). Most private plans deduct the "cost" off the top before allocating what remains of the retirement annuity between the parties. In most cases the amount of the Alternate Payees share of the Participant's retirement annuity will be less than 50% of the entire retirement annuity. Since the cost comes off the top, the parties will pay the "cost" in the same ratio a their respective shares of the retirement annuity, and the Participant will pay the larger share. The Alternate receives 100% of the benefit since the Participant will be dead. Example. Assume a $5000/month annuity payable at retirement and that the parties were married for 240 months during which the Participant accrued creditable service toward retirement, and the Participant had 360 months of creditable service at retirement. The time rule of of sharing defined benefit plans formula would be $5000/2 = $2,500 x 240/360 = $1,667/month to the Alternate Payee. Now assume that the actuarial reduction for a QJSA is $500/month. That leaves $4500 to be divided between the parties and the new computation is $4500/2 = $2250 x 240/360 = $1500 to the Alternate Payee. So the Alternate Payee has paid $166 of the $500 cost of the QJSA and the Participant has paid $334. Unhappy Participant. I have spent 35 years preparing QDROs and helping parties and their attorneys navigate the options. This would be a colossal disaster. David

It sounds like these NQDC plans are funded in some way. Is that right? Are they required to comply with a QDRO?

You have a tax issue. The AP can elect to take a taxable distribution but under IRC 72(t)(2)(C) there will be no 10% early withdrawal penalty regardless of her age. The Participant has no ability to avoid the 10% penalty if he is under age 59-1/2. And if the Participant is still employed by the Plan Sponsor he/she may be be able to make a distribution to himself at all. He can take out a loan for 50% of the vested balance but not to exceed $50,000, or the plan may have an option for a taxable hardship withdrawal that will also be taxable income to him and, I think, will also be subject to the 10% penalty. It looks to me like the Participant is looking to circumvent the ability to take a distribution and the required 10% penalty. Last but not least, a QDRO is at instrument created to permit a transfer of pension or retirement assets to a former spouse without running afoul of the antialienation provisions of 26 USC §401(a)(13)(A). 26 USC §414(p)(1)B)(i) says "(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." The only way that the Participant can use a QDRO to give money to himself is to transfer it to his ex-wife, let her take a taxable distribution at her (likely lower) marginal tax rate (with no 10% penalty), and they turn it over to him. This is not an uncommon event. Of course it's not set forth in the QDRO and it may be worded in the underlying Marital Settlement Agreement in a well disguised way. Or, it may be possible that the answer is found in the following. https://youtu.be/zeIsxXDyjlc David

My QDRO preparation is located in the DC metro area where, as you might imagine, there are a great number of Federal Government employees. Various Federal regulations provide: 1. The entitlement of a Former Spouse of a FERS or CSRS Employee to receive survivor annuity benefits will terminate if the Former Spouse remarries prior to age 55; and the entitlement is not subject to reinstatement. In a Military plan the entitlement of the Former Spouse will be suspended (not terminated) if the Former Spouse remarries prior to age 55, but is subject to reinstatement if the new marriage is terminated by divorce or the death of the new spouse. [Guess how many Military couples divorce just before the potential Former Spouse survivor recipient reaches age 55 only to remarry after age 55. People who write Federal regulations have no understanding of human behavior.] 2. 5 CFR 838.221(c)(1)(i), (ii) and (iii), provide: "(c)(1) When court-ordered payments are subject to termination (under the terms of the court order) if the former spouse remarries, no payment will be made until the former spouse submits to OPM a statement in the form prescribed by OPM certifying-- (i) That a remarriage has not occurred; (ii) That the former spouse will notify OPM within 15 calendar days of the occurrence of any remarriage; and (iii) That the former spouse will be personally liable for any overpayment to him or her resulting from a remarriage." So in my world termination in the event of remarriage is a common topic of discussion. Notwithstanding that the allocation of retirement benefits between divorcing parties is viewed as an allocation of marital property, once the Employee enters pay status, his/her view of these payments changes from property to income and income sounds like alimony. I agree with QDROphile's comment about the DOL QDRO publication. But the problem is that "it's out there", and people read it as Gospel. I have many times prepared QDROs in accordance with model orders that specifically required a statement that "Subsequent remarriage by either party will not affect the terms of this Order." And thank you Peter for your citation. David

Two questions: I have always known that a QDRO can provide that the payment of benefits from an ERISA qualified defined benefit plan can provide for termination of benefits not only at the death of the Participant or at the death of the Alternate Payee, but also on the Alternate Payee's remarriage. See page 105, paragraph “2" at the top of the page at - https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/publications/qdros.pdf. ....where, in discussing QDRO language, it says that, "Payment to the Alternate Payee shall cease on the earlier of: [insert date or future event, such as the Alternate Payee’s remarriage], or the date that payments from the Plan with respect to the Participant cease." I always assumed that this was authorized by IRC §414(p)(2)(C) requiring that a DRO state - “the number of payments or period to which such order applies”. Question 1: Upon the termination of benefits to the Alternate Payee, is it automatic that the benefits no longer being paid to the Alternate Payee will revert to and be paid to the Participant? Is that a Plan by Plan issue? Question 2: Based on the provisions of IRC §414(p)(1)(B)(i) that provides: “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,” Does the termination of benefits on the remarriage of the Alternate Payee apply only when the QDRO has been entered for the purpose of facilitating payment of alimony to the Alternate Payee; or does it also apply where the QDRO is intended to allocate marital property? Thanks for you input. Citations of authority that I may have missed would be helpful. Happy New Year to all David Goldberg

That not the way it is done. In order to avoid taxes and penalty being imposed on the account holder, there must be a rollover and not a direct distribution to a former spouse. See the Gorin article "IRAs: DIVISION AND TRANSFER INCIDENT TO DIVORCE" below. The IRA transfer must be from the wife's IRA to the husband's IRA and then the husband can take a income taxable distribution that may or may not be subject to the 10% penalty. The way you have it set up the wife will be making a distribution and the wife will pay income taxes and a 10% penalty on the payment to the husband. And the Plan will withhold 20% for Federal taxes. An Alternate Payee is not subject to the 10% early withdrawal penalty if the distributions are under a QDRO in an ERISA qualified plan. See IRC 72(t)(2)(C). And see this website discussing the exceptions to the imposition of the 10% penalty: https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-tax-on-early-distributions See also - https://www.irs.gov/taxtopics/tc558.html But see the strange T.C. Memo. 2017-125, Summers v. Commissioner at - https://scholar.google.com/scholar_case?case=4327573022055470859&q=T.C.+Memo.+2017-125&hl=en&as_sdt=20000006 that seems to suggest that an IRA can be exempt from the 10% penalty is transferred pursuant to a domestic relations order as defined by IRC §414(p)(1)(B) which related only to ERISA plans and not to IRAs. Note that most IRA custodians no longer require a Court Order. They believe they can make a direct non-taxable transfer of funds from the IRA account holder to the former spouse's IRA using their own forms. See for example the attached from various custodians. Also attached are some articles that deal with the subject of transferring IRAs in a divorce. Equitable IRA Transfer Form.pdf TD Americtrade IRA Transfer - Divorce.pdf Schwab IRA Divorce Transfer Request Form.pdf American Funds IRA Transfer Form.pdf Morgan Stanley IRA Transfer Form.pdf Vanguard IRA Divorce #2.pdf T Rowe Price IRA DivorceTransfer Form.pdf Alliance Bernstein IRA Transfer Form.pdf Divorce Source_ DIVIDING IRAs IN DIVORCE.pdf +++IRAs_ Division and transfer in.pdf IRA - 19 Ways to Withdraw IRA Funds Without Penalty.pdf IRA DC and More Retirement Topics Tax on Early Distributions IRS.pdf IRA TaxFreeTransfer - Fidis.pdf IRA Transfer w-o Court Order.pdf

QDROphile is correct that most state, county and municipal plans are not covered by ERISA, the Federal law that normally covers pension and retirement plans adopted by private employers in the US. But I have seen some state, county and municipal plans that have adopted ERISA qualified Plans in order to facilitate ease of administration either in-house or by third party administrators. You used the acronym DRO and QDRO. The "Q" in QDRO stands for "qualified" under ERISA. So your first task is to see if ERISA even applies to your disability pay. If you didn't work for Marin County, and just mentioned Marin because that's where the Court is located, then you started off on the wrong track. Keep in mind that the purpose of the DRO in you case is not to allocate "marital property" or "community property" between you and your ex-wife. It is intended to pay your ex-wife alimony (spousal support). If you are under ERISA this is a legitimate use of a QDRO. However, the question is whether or not under California law disability benefits can be the subject of a DRO at all, or can it exclude spousal support. My my home state, Maryland, disability benefits can be accessed to pay child support and alimony, even if they could not be divided as property. See Riley v. Riley, 82 Md.App. 400, 571 A.2d 1261 (1990). And in the Supreme Court case of Rose v. Rose, 481 U.S. 619 (1987) - https://scholar.google.com/scholar_case?case=8800536124027399358&q=rose+v.+rose&hl=en&as_sdt=20000003 the question was whether a state court has jurisdiction to hold a disabled veteran in contempt for failing to pay child support, where the veteran's only means of satisfying this obligation is to utilize benefits received from the Veterans' Administration under 38 U. S. C. § 314 as compensation for a service-connected disability that cannot be divided as "property". The Supreme Court held that such disability payments can to accessed for child support. It is clear that the same outcome would apply to payments of spousal support. Also keep in mind that a DRO/QDRO is an order entered by the Court and enforced by the administrator of the applicable plan. The administrator is authorized to do only what the Court has set forth in the DRO/QDRO. The administrator doesn't prepare the DRO/QDRO. Your comments about the plan administrator are just not logical. All Court orders that are intended to attach assets via a garnishment or via a DRO/QDRO must state the amount or percentage of payments to be collected from the garnishee or Plan Administrator and the duration of such payments. Often the duration is "pending further order of the Court." There is something you are missing and the fact that you obviously did not have a lawyer representing your interests led to your problems. DSG

I think I know what may have happened. I suspect the pension had an option for you to receive a shared interest in his retirement annuity. That means that you must wait until he retires before you get your share. The decision as to when he retires is up to him. The court cannot force him to retire. The other option is for you to get a separate interest in his retirement, that his a part of his retirement benefits are transferred to you and you can start receiving payments even before he retires, but he must be over age 50 and eligible for retirement, normally at age 55. But the amount you receive will be based on your life expectancy and if you are young the amount will be less since it must be paid out over a greater number of years. I cannot tell which option was set forth in the QDRO but if they are offering you an annuity while he is still working then it sounds like a separate interest. If you are age 50 or less, then the amount you will receive will be greatly reduced because the mortality tables give you a life expectancy of 34 years or more. Maybe you or you attorney misunderstood the value of his pension. I am not even sure you are right in saying that you were to receive 40%. I suspect it was 40% of the marital share and the marital share is a fraction whereby the numerator is the number of months of credited service during the marriage and the denominator will be the number of months of credited service at his retirement. You need to find a lawyer who can help you. But that will be expensive I fear. David Goldberg I have never seen a union pension with a lump sum option. You must take your share as an annuity, shared or separate. Without seeing the QDRO and knowing what state you live it there is not much more help I can give you. I would assume the Plan Administrator knows what he is doing. I assume at some point he wrote you a letter explaining your options and why he was denying your claim. The Plan Administrator owes a fiduciary duty to you as a potential beneficiary of the pension

1st. Sue your lawyer if you had a lawyer. It is his/her obligation to finalize the QDRO for you and that means to serve a certified copy on the Plan Administration in a timely fashion or to give a Notice of Adverse Interest/Claim (see below). Attached find some articles that set forth what has become the standard of care almost everywhere in the US, but I obviously don't know about your state law. The lawyer's malpractice insurance carrier may reimburse you for your loss. 2nd. Your ex-husband still owes you your share of the money. The QDRO is just a collection mechanism like a garnishment or an attachment. It is not evidence of your agreement or the court's ruling that you receive your share. The QDRO is not the document that creates the obligation. Hire a good lawyer and sue your ex-for contempt. Ask that he be incarcerated until he pays you. And that he be fined $10,000 a day for any delay in paying you. Ask for a judgment to be entered that you can use as a basis of attaching and garnishing his other property to satisfy the judgment. Ask for pre- and post judgment interest on the judgment at the official judgment rate. 3rd. The type of retirement account is important. It sounds like a 401(k). In most plans there is no requirement that a Participant get the consent of, or give notice to, his spouse or former spouse to withdraw the money from his 401(k) when he leaves his job, but that is not the end of the discussion. Different plans (sponsored by private companies, Federal, state, county, municipal, union and church plans, may have provisions that require such consent or notice. The Plan may be off the hook, but due diligence by a competent attorney means finding out for sure. AND, you may just find that they do have such a requirement and that your ex- forged you name to a consent. It happens more often than you can imagin. You never know when you will find a pearl in the oyster. See below. 4th If the Plan had actual notice that he is divorced or that there is a court order that might impact his 401(k) Plan, the Plan documents or their normal cautionaly procedures may provide for notice to the former spouse, or for the consent of the former spouse, or they just may just refuse to release any money until they receive direction from the Court or unless the parties agree. The preferred practice would have been for your attorney to have sent a Notice of Adverse Claim/Interes to the Plan as soon as the Separation Agreement was signed or as soon as the judge ruled on your entitlement, normally in the Decree of Divorce. Here are 3 applicable cases on the subject. Note that Plan Administrators have a fiduciary duty not only to the Plan and to the Participant, but to the Alternate Payee (that's you). See the 2020 case, Liccione v. Moea Goron-Futcher, No. 3116, September Term, 2018, Court of Special Appeals of Maryland (2020) that you can find at - https://scholar.google.com/scholar_case?case=9037414859326378600&hl=en&lr=lang_en&as_sdt=6,33&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:12484640753426065479:AAGBfm1agvHLwT5aWZ_N6PDZrK7iWFqV8A&html= In re: Marriage of Baker, 251 Cal. Rptr. 126, 204 Cal.App.3d 206 (1988)- https://scholar.google.com/scholar_case?case=16441361013389152593&q="notice+of+adverse+interest"+QDRO&hl=en&lr=lang_en&as_sdt=20000006&as_vis=1 In re: Marriage of Gowan, 54 Cal.App.4th 80 (1997) - https://scholar.google.com/scholar_case?case=1596374749324836669&q="notice+of+adverse+interest"+QDRO&hl=en&lr=lang_en&as_sdt=20000006&as_vis=1 Good luck. David JLG Article - It Ain't Over.pdf Malpractive - Lawyer Liability in QDRO Cases - Willick.pdf Shulman QDRO Handbook Table of Contents 2020.pdf Shulman Treatise Table of Contents 2013.pdf Top-QDRO-Mistakes-Attorneys-Make-and-How-to-Avoid-Them (1).pdf

I am a Maryland attorney, but don't actively handle estate and trust matters. My first question is why not call the attorney who drafted the trust document? He/she should be able to answer your questions. My second question is whether this is a special needs trust. If so, see attached from the Maryland Attorney General as a starting point. My third question is whether or not the trust is revocable or irrevocable. If the trust is silent on the matter, then it's revocable - Section 14-402(e) of the Estates and Trust Volume. But if the settlor is dead I don't know who has the power to revoke it other than a court. That would allow you to start from scratch. I am assuming that this is not a testamentary trust. It is important that you make sure that the investment account and the annuity are actually titled in the name of the trust. It is a regular occurrence for the parties to recite in the trust document that the following assets have been transferred to the trust when they have not in fact done so. The assets remain in name of the settlor. In other words, for example, the settlors house must be deeded to the "The Joseph Smith Family Trust" or it's not in the trust at all. If the assets are not so titled, they will go through probate on the death of the settlor. Section 14-403 of the Estates and Trusts Article provides -see Section "(h)": "§ 14-403. Creation of trust as transferor In general (a) Any person having the right to transfer property to another person may create a trust as a transferor under this subtitle. Powers of transferor (b) The transferor may: (1) As declarant serve as trustee; (2) Designate a trustee; (3) Designate how the trustee will be chosen; (4) Designate successor trustees in the order in which they will serve; and (5) Designate how successor trustees will be chosen. Duties of trustee to hold, manage, expend, and transfer trust property (c) The trustee shall hold, manage, expend, and transfer trust property as provided in this subtitle. Successor trustees (d) The successor trustee shall assume the responsibilities of the trustee when the trustee is no longer willing or able to serve. Number of beneficiaries and trustees (e) A trust may have only one beneficiary but more than one trustee. Liability of trustee and declining or resignation of role (f) A trustee: (1) Is not personally liable to a third person: (i) On a contract properly entered into in a fiduciary capacity unless the trustee fails to reveal that capacity or to identify the trust in the contract; or (ii) For an obligation arising from control of trust property or for a tort committed in the course of the administration of the trust, unless the trustee is personally at fault; (2) May decline to serve as trustee before accepting trust property by notifying in writing the person who designated the trustee, or that person's legal representative; and (3) May resign as trustee by notifying the successor trustee in writing, transferring all trust property to the successor trustee, providing the successor trustee with a complete accounting of trust property, and confirming that the successor trustee has accepted the trust property. Acceptance of records and trust property to become successor trustee (g) The next willing successor trustee in line shall accept the records and trust property and become trustee as soon as practicable after: (1) The resignation of the trustee; (2) The declination of the trustee; (3) The death of the trustee; or (4) The removal of the trustee. Petition to designate successor trustee (h) If the trustee is unable or unwilling to serve and no successor trustee will serve, the following persons in the order listed may petition the court to designate a successor trustee: (1) The transferor or the legal representative of the transferor; (2) The trustee; (3) The beneficiary or the beneficiary's legal representative; (4) The guardian of the person of the beneficiary; (5) An adult member of the beneficiary's family or that family member's legal representative; or (6) A person interested in the trust property or a person interested in the welfare of the beneficiary, either of whom the court determines to have a legitimate interest. Remove or change designation of trustee (i) Unless renounced by the transferor, the transferor may at any time remove or change the designation of the trustee and successor trustees." You can find the entire Maryland Discretionary Trust Act at https://law.justia.com/codes/maryland/2017/estates-and-trusts/title-14/subtitle-4/ If you need a referral to a Maryland attorney who specialized in estates and trusts matter, let me know the County where everyone resides and I will be happy to find someone for you. David Special Nees Trust from Maryland AG.pdf

Isn't this covered under imputed interest by the IRS? See https://turbotax.intuit.com/tax-tips/tax-payments/irs-tax-rules-for-imputed-interest/L7UbulHpC#

If the employee has a defined contribution plan (like a 401(k)), a QDRO can still be obtained from the Court ordering the Plan to pay a portion of the employee's plan account to the former spouse. But if the employee has been terminated and can remove all the money in his defined contribution plan account without notice to or consent by the former spouse, then you will have a collection problem. If you are dealing with a defined benefit plan, a pension, and the employee has sufficient time in service to be vested and still entitled to a pension, then then a QDRO can be obtained to award a share of the pension to the former spouse. You need to expand on your factual presentation if the foregoing does not answer your question.

Just to be clear, you are going to obtain a copy of the QDRO signed in connection with your deceased husband's marriage to a previous wife who is also deceased? Can simplify this by putting names on the parties? Let's call your husband John, his first wife Amy, and your Betty. So John and Amy were married and there was a QDRO or two. And Amy died first and now John had died. And you want to know if you, Betty have any survivor benefit rights from John's former employers? Do I have it right? These issues are fact intensive and rarely can anyone give you a valid answer without knowing those facts. Get copies of BOTH QDROs, cross out the names and attach them to your next post.

I can tell you that not one case in any state or Federal court in the United States has ever used the phrase "Executive Cash Balance Plan". Nowhere on the Department of Labor website (including the EBSA) does the phrase "Executive Cash Balance Plan" appear. So perhaps "Executive" just defines the characteristics of the Participants and not the nature of the Plan itself. I suspect it's just a plain vanilla Cash Balance Plan. https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/fact-sheets/cash-balance-pension-plans

If the Member retired after December 23, 2016, or is still in the service, you are living in a new world regarding the allocation of Military benefits. See that attached Memo. If you don't understand what you are reading, then your client needs to employ someone else to review the Order for him/her. I would recommend Marshal Willick at https://www.willicklawgroup.com/marshal-s-willick-esq/ Or Mark Sullivan at https://ncfamilylaw.com/mark-e-sullivan/#:~:text=Sullivan is a retired Army,or its director ever since. David Document2.pdf

Attached is what you need to know about treating a Judgment of Divorce as a QDRO. Assuming you are an ERISA qualified Plan, you need to know that the source of the obligation to transfer pension or retirement benefits is NOT the QDRO, it is the Judgment of Divorce, or the Judgment of Divorce incorporating a Marital Settlement. In my state of Maryland a QDRO is just an enforcement tool, like a garnishment or an attachment. It is not part of the Judgment of Divorce. So even in the absence a QDRO the obligation of the Participant to transfer benefits to the Alternate Payee still exists and is an enforceable obligation. So at this point you have actual knowledge of the existence of an obligation that you are required to enforce: (i) if the Judgment of Divorce has all of the information set forth in my attached Memo; or, (ii) if you receive a QDRO. I think at a minimum you would have an obligation to look at the Judgment of Divorce and to ask the Participant to produce it. This exact thing happens on a regular basis when dealing with OPM with respect to FERS. They have a form SF-3107 (attached) that asks at Section C on the 5th page of the form. And see "Section C" on the 2nd page - right column. I think your proposed letter is just fine. If the intended Alternate Payee doesn't respond, and a QDRO is not forthcoming, then you need to make a determination of whether or not the Judgment of Divorce is a QDRO. If so, act accordingly. If not, notify the parties in the same way you would notify them if you determined that a proposed QDRO was not qualified. I don't think the references in my first response would require you to do anything else. If the Judgment of Divorce incorporates an Agreement, I think you need to review the Agreement and be determine whether that document contains the language necessary to render it as a "QDRO". You might be able an Interpleader asking the court what you should do. Good luck. David JAD = QDRO.pdf Appl for Immediate Annuity FERS SF3107.pdf

Somebody else posted the same question. Here is my response. Confirm that the aerospace companies were US based and required to comply with ERISA. If first wife died than all of her benefits died with her. If she was receiving a shared interest in his retirement annuity, then that would end on her death (unless the plan permitted her to pass her share of his retirement annuity to her estate). If she has predeceased her then she obviously cannot receive any survivor annuity benefits. If the parties are not involved in a divorce proceeding then the new wife is entitled to none of his retirement or survivor annuity benefits by reason of a court order- but maybe otherwise - see below If husband remarried new wife and then retired, he would have been required to elect a 50% QJSA annuity for the new wife and she would be entitled to a survivor annuity benefit by law. If husband retired and then remarried, he most likely would have had an option to elect a 50% QJSA annuity for the new wife if he met the eligibility requirements of the Plan, ex: duration of marriage, time after retirement when that window was open. If husband is dead there are no "retirement" benefits to consider. Only "survivor annuity" benefits. Maybe you can restate the issue and be a little more specific about the facts and the timeline.

Confirm that the aerospace companies were US based and required to comply with ERISA. If first wife died than all of her benefits died with her. If she was receiving a shared interest in his retirement annuity, then that would end on her death (unless the plan permitted her to pass her share of his retirement annuity to her estate). If she has predeceased her then she obviously cannot receive any survivor annuity benefits. If the parties are not involved in a divorce proceeding then the new wife is entitled to none of his retirement or survivor annuity benefits by reason of a court order. If husband remarried new wife and then retired, he would have been required to elect a 50% QJSA annuity for the new wife. If husband retired and then remarried, he most likely would have had an option to elect a 50% QJSA annuity for the new wife if he met the eligibility requirements of the Plan, ex: duration of marriage, time after retirement when that window was open. If husband is dead there are no "retirement" benefits to consider. Only "survivor annuity" benefits. Maybe you can restate the issue and be a little more specific about the facts and the timeline.

In my world if a Plan has actual notice of an existing QDRO, they will: (i) put a hold on the account, (ii) advise the Participant that they will not put him in pay status unless they receive a certified copy of the QDRO, or an Order vacating the Order, and, (iii) in some case file as intervenor in the case where the QDRO is issued. Attorney for the Plan do not want to risk being required to make double payments. In Advisory Opinion No. 1999-13A , https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/1999-13a the IRS Division of Fiduciary Interpretation Office of Regulations and Interpretations was asked: "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." So there are times when the Plan Administration should get involved, and one of these must be if they have actual knowledge of the existence of a QDRO. The PA has a fiduciary duty toward both the Participant and the Alternate Payee. See ALMA PARSONS v. BOARD OF TRUSTEES OF THE BOILERMAKER-BLACKSMITH NATIONAL PENSION TRUST, Civil Action No. 2:20-cv-00132, United States District Court, S.D. West Virginia, Charleston Division (April 20, 2020) setting forth the fiduciary duty owed by the Plan as a fiduciary vis a vis the Alternate Payee. You can find this case at https://scholar.google.com/scholar_case?case=12166270204191846086&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:14880692104701005079:AAGBfm2qi1_JaXLJvydb4f3quYTnTlLkbA Now go the the attached from DOL. DOL re QDROs.pdf Go to page 55, part of Appendix A and start reading at: "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." Lastly, many of the Plans with whom I deal have a form, an application, that a prospective retiree will submit in anticipation of retirement. The form will specifically ask is there is a pending QDRO or a claim by a former spouse for benefits under the Plan. You need to check for that. As Dirty Harry used to say, "Do you feel lucky?" I don't know a Plan Administrator that wants to find himself in the middle of an expensive lawsuit in Federal Court. Better to do nothing and let the parties and the state court resolve it. BTW, I have never seen a case where the remarriage of the parties, in and of itself, without more, resulted in a waiver of benefits from the prior divorce. Do you want to be in the middle of that issue? David

What sort of plan other than a defined contribution plan permits a "loan"? What sort of defined contribution plan permits a loan of more that 50% of the vested account balance but not to exceed $50,000? What are the exact plan provision with respect to "notice" to a spouse, and "consent" by the spouse -two entirely different potential requirements? What does a 50% QJSA annuity have to do with any aspect of your question? If there is no divorce action pending there is nothing a court can do for you. If you file for divorce you will have to serve her with process or used substituted service (your lawyer will understand what that is). If she does not file an Answer to the Complaint you can get a default and ask that the court not award her any share of your Plan benefits, whatever they are. If the Court goes along they at that point it's YOUR plan and she has no control over any of your decisions.

Two situations: (i) the 401(k) plan provides for a segregation of the A/P's entitlement into a separate account; and, (ii) the 401(k) plan does not mention segregation into a separate account but seems to contemplate a direct rollover or distribution to the A/P. Question: Is there any time period within which the A/P musttake a distribution or rollover? I am looking at 1.409(a)(9)-8 Q/A-6(b)(2) and don't have a clue if it says what I think it says - that the A/P can leave the funds in a segregated account until the Participant reaches age 70-1/2. The language is: "(2) Distribution of the separate account allocated to an alternate payee pursuant to a QDRO will satisfy the requirements of section 401(a)(9)(A)(ii) if such account is to be distributed, beginning not later than the employee's required beginning date, over the life of the alternate payee (or over a period not extending beyond the life expectancy of the alternate payee). Also, if the plan permits the employee to elect whether distribution upon the death of the employee will be made in accordance with the 5-year rule in section 401(a)(9)(B)(ii) or the life expectancy rule in section 401(a)(9)(B)(iii) and (iv) pursuant to A-4(c) of § 1.401(a)(9)-3, such election is to be made only by the alternate payee for purposes of distributing the separate account allocated to the alternate payee pursuant to the QDRO. If the alternate payee dies after distribution of the separate account allocated to the alternate payee pursuant to a QDRO has begun (determined under A-6 of § 1.401(a)(9)-2) but before the employee dies, distribution of the remaining portion of that portion of the benefit allocated to the alternate payee must be made in accordance with the rules in § 1.401(a)(9)-5 or 1.401(a)(9)-6 for distributions during the life of the employee. Only after the death of the employee is the amount of the required minimum distribution determined in accordance with the rules of section 401(a)(9)(B)." Thanks for any help. David

What is the exact name of your "deferred compensation" plan? There are more than 163,000 pension and retirement plans in the US that fall under the auspices of a Federal law known as the Employee Retirement Income Security Act ("ERISA"). Pursuant to that law a QDRO must be honored by the Plan Administrator. Some deferred compensation plans fall under ERISA. But there are other deferred compensation plans that do not fall under ERISA (non-qualified plans) and they cannot be enforced by a QDRO. Note that the term QDRO only applies to plans that fall under ERISA, so your use of that term may be misleading. Your question will not make sense unless we know what sort of plan you are talking about. If the Plan is under ERISA you will find it on the attached list. Note that you may have a deferred compensation plan that does not fall under ERISA and is still enforceable by laws other than ERISA. For example, if you are a teacher or a policeman or other employee employee you may have a deferred compensation plan that is enforceable under state, county or municipal law. There are thousands of those. Another important thing to know is the exact language used by the Judge in awarding her part of the plan benefits. DSG

C.B. Zeller is right, but, the Participant's retirement is far off in the future and we cannot predict how much his retirement will be. And I don't know if any Plan Administrator will allow a two stage formula, one before the SS offset kicks in and one afterwards. The separate interest seems like a better option if the Alternate Payee's commencement date starts before the Participant starts his commencement date and before the SS offset kicks in, but, as noted, I have never seen that be addressed. I suppose the QDRO could say that the Alternate Payee's benefit reduction when the SS benefit kicks in will be limited to 50% of the SS benefit reduction, but that would be tantamount to a dollar for dollar offset for SS benefits that most states hold to be non-marital property and not subject to division in divorce (although it can be "considered" whatever that means - they never say). I have no idea if a Plan Administrator would be willing to implement the foregoing. Let me lay it out - using a shared allocation. "The Alternate Payee is hereby awarded 50% of the "marital share" of the Participant's benefits whereby the "marital share" is equal to a fraction, the numerator of which is the number of months during the marriage that the Participant accrued creditable service toward retirement, and the denominator of which is the number of months of creditable service accrued by the Participant at the time of his commencement of benefits; provided, however, that any reduction of benefits received by the Participant by reason of his receipt of Social Security benefits shall not result in a reduction of benefits payable to the Alternate Payee greater than 50% of the gross amount of such Social Security benefit reduction." Note that this complies with IRC 414(p)(2)(B) requiring that a DRO must specify - "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," What do you think? Any Plan Administrators out there buying that? David

The husband is a Participant in a Plan that will reduce his pension annuity benefits when he begins to draw Social Security benefits, that is, it is an "integrated" plan. The parties have agreed that the wife will receive 50% of the marital portion of his retirement benefits (and are agreeable to either a shared interest allocation or a separate interest allocation). The question is whether or not it's possible to somehow freeze the wife's share of the husband's pension annuity so that her share will not be reduced when the Social Security causes the reduction in the husband's pension benefits. As you may know, Social Security benefits are not considered to be "marital property", so if I cannot fix the problem her share of his benefits will decrease, and his benefits will increase, by an amount of his Social Security benefits not paid to his wife. It is too late to consider workarounds like paying alimony equal to the wife's net loss. I have prepared QDROs for 33 years and never seen this addressed in any QDRO packages prepared by any Plan Administrator, or any any of the QDRO treatises I have on my desk. Thanks for your thoughts. David

The husband is a Participant in a Plan that will reduce his pension annuity benefits when he begins to draw Social Security benefits, that is, it is an "integrated" plan. The parties have agreed that the wife will receive 50% of the marital portion of his retirement benefits (and are agreeable to either a shared interest allocation or a separate interest allocation). The question is whether or not it's possible to somehow freeze the wife's share of the husband's pension annuity so that her share will not be reduced when the Social Security causes the reduction in the husband's pension benefits. As you may know, Social Security benefits are not considered to be "marital property", so if I cannot fix the problem her share of his benefits will decrease, and his benefits will increase, by an amount of his Social Security benefits not paid to his wife. It is too late to consider workarounds like paying alimony equal to the wife's net loss. I have prepared QDROs for 33 years and never seen this addressed in any QDRO packages prepared by any Plan Administrator, or any any of the QDRO treatises I have on my desk. Thanks for your thoughts. David