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See my responses in bold type. I work on a plan that is an owner/spouse CB plan. I am having a problem with your non-standard use of language. In ERISA qualified plans you will have a Participant, an Alternate Payee, a Plan Sponsor, and a Plan Administrator. I don't understand what you mean when you say "CB" unless, as one of our members suggested below, you are talking about a "cash balance" plan. I understand that you are acting as the actuary for the Plan, but I don't understand your role and how you got involved.The couple got divorced, and the QDRO says the AP gets X% of the owner's account balance as of a certain date. Here is the DOL explanation of how cash balance plans work. https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/fact-sheets/cash-balance-pension-plans It is common in allocating defined contribution plans to direct that the Alternate Payee will receive a certain dollar amount as of a Valuation Date, or a certain percentage of the vested benefit as of the valuation date. In addition, most of the QDROs I see provide that the amount payable to the Alternate Payee will be adjusted for gains, losses and investment experience from the Valuation Date until: (i) the date the Alternate Payee's share is transferred via tax free rollover to the Alternate Payee's IRA or other qualified account, or (ii) until the date the Alternate Payee's share is distributed directly (taxable but no 10% penalty), or, (iii) until the date the Alternate Payees share is segregated for the Alternate Payee's benefit. These three events are often called the "Liquidation Date" or "Assignment Date". With respect to the issue of whether or not the "gains and losses" language is implicit even if not set forth in the Marital Settlement Agreement or the Judgment of Absolute Divorce, see the attached Memo. I have prepared many QDROs for the cash portion of cash balance plans that are stated in the same way. Gary Shulman's treatise, "Qualified Domestic Relations Order Handbook", provides two model QDRO at Chapter 36, one for a fixed amount and one for a percentage. The parties involved apparently all agreed to a dollar amount based on X% of plan assets. How were plan assets defined? In a defined contribution plan it would be a percentage of the vested account balance (including or excluding loan balances). In a cash balance it would be a percentage of amount of the cash balance which bears no true relationship to the defined benefit plan to which it is attached, nor does it reflect any realistic present value of the expected stream of future annuity payments. However, when I look at the actual benefits as of that date, What are you looking at? An actuarial calculation? Present value? A percent of what? the AP should have received tens of thousands of dollars extra, if I take X% of the Participant's CB benefit as of that given date. When I initially received the QDRO and reconciled the plan assets and determined more money was due, the attorney who drafted the QDRO came back and said there is nothing more due, because both parties received what they had agreed on. This may or may not be true. If the parties made a mistake of fact about how much was in the account to be divided, then the court may have to power to reform the agreement to reflect the actual intent of the parties. Or one of the parties needs to call his/her malpractice carrier. I'm curious if anyone has opinions on this. I'm thinking it's a case of a poorly worded QDRO and/or a misunderstood attorney, but I suppose I let it go if everyone's happy? Are there legal ramifications to be wary of here? Or maybe the QDRO is perfectly fine, and the way they have handled everything is okay? Thanks in advance. If you notify the parties of your uncertainty about how much is to be transferred, then you know what will hit the fan. If you make that decision yourself while being uncertain of whether you are right or wrong, you may put the Plan assets in jeopardy. I think you need to bring it to the intention of the parties. Gains, Losses, Ownership Interest and Constructive Trusts 7-16-2020.pdf

The Order used to allocate a FERS and CSRS annuity is called a Court Order Acceptable for Processing ("COAP"). It is not called a Qualified Domestic Relations Order ("QDRO") since that relates only to plans under the Federal law known as ERISA, and FERS and CSRS are not under ERISA. Yes it is is possible to award 100% of the Employee's retirement annuity to a Former Spouse but I have never seen that done in the 33 years that I have been preparing COAPs. 100% of the "marital share" is not necessarily the same as 100% of the retirement annuity since the marital share is determined by a taking the full and unreduced amount of the retirement annuity and multiplying it by a fraction, the numerator of which is the number of months during the marriage that the Employee accrued creditable service toward retirement, and the denominator of which is the total number of months of creditable service accrued by the Employee at the time of retirement. Only if all of the Employees service took place during the marriage is the marital portion equal to 100% of the retirement annuity. Note that in a Military retirement the maximum that can be awarded to a Former Spouse is 50% of the Members disposable retired pay. The 50% and 55% you mentioned relate to the survivor annuity payable to the Former Spouse after the death of the Employee, and not to the retirement annuity payable during his lifetime. The maximum survivor annuity under CSRS is 55% of the full and unreduced retirement annuity. The maximum survivor annuity under FERS is 50% of the full and unreduced retirement annuity. Note that the full and unreduced retirement annuity is known as the "self only" amount. When you deduct the cost of the survivor annuity you are left with the "gross" annuity. I hope this is helpful.

Many thanks. I have certainly encountered Plan Administrators who favored their employees over their former spouses. Witness the entire US Military for example. But I really cannot abide a "slick" lawyer who would violate his/her oath as an officer of the court and the Rules of Professional Conduct with such blatant impunity. Oh, well. I must be satisfied by contemplating a few of my favorite sayings - What goes around comes around. Paybacks are hell. Your chickens will eventually come home to roost. You made your bed, now you must lie in it. Lay down with dogs, get up with fleas. You reap what you sow. Karma is a bitch. You will receive your just deserts. Those who sow the wind will reap the whirlwind. Every dog will have his day. You can run, but you can't hide. If you live by the sword you will surely die by the sword. If you play with fire, you're gonna get burned. Those who foolishly sought power by riding the back of the tiger ended up inside. Hmmm. Not that comforting. David

I had a case recently where an ERISA qualified union plan provided a pro forma set of QDRO procedures and a Model Order for a shared interest in it's defined benefit plan. There was no mention of survivorship, that is, no mention of the availability of a QJSA or QPSA options. I used their Model Form as a rough guide, but added language providing the Alternate Payee with a 100% QJSA and a 50% QPSA as agreed to by the parties in their Marital Settlement Agreement incorporated in the Judgment of Absolute Divorce. The Plan's attorney responded that the Plan did not permit QJSA or QPSA options. I responded quoting IRC 414(p)(5), IRC 401(a)(11), 26 CFR § 1.401(a)-20 - Requirements of qualified joint and survivor annuity and qualified preretirement survivor annuity, Q. 3-5 and Appendix C of the attached DOL, EPSA pamphlet, and referring them to https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-qualified-joint-and-survivor-annuity. The attorney responded that they would permit the QJSA or QPSA options, but that I could not specify the percentages. (The Plan provided that the QJSA had 50%, 75% and 100% options available; and the QPSA had 50% available.) I responded by reminding them of their obligations as Plan Administrators to provide informations about plan benefits to Alternate Payees (Questions 2-1 and 2-5 of the attached DOL,EPSA pamphlet), and sent them a copy of the PBGC Model Order Booklet,PBGC booklet, Page 12, Section 10 reflecting the option of inserting any available QJSA or QPSA percentage agreed to or ordered by the trial court. I also suggested that legal fees were awardable to the Alternate Payee for their failure to fulfil their obligations, citing 29 USC Section 1132(g), 28 USC Section 1927, and Chambers v. Nasco, Inc., 501 U.S. 32, 44–46 (1991) outlining the court's inherent power to assess attorney fees especially when a party is litigating in bad faith. https://scholar.google.com/scholar_case?case=12894484016394117131&q=chambers+v.+nasco,+inc.&hl=en&as_sdt=20000003 The QDRO was finally approved as I have drafted it. It was unmistakably clear that the attorney for the Plan was intent on protecting their Participants to the detriment of their former spouses, and hoped that persons less knowledgeable than I would not know the difference. Perhaps this happens all the time and I am just naive. But it never happened to me in the 33 years I have been preparing QDROs. What do you think I should do, if anything? Any ideas? Thanks, David DOL re QDROs.pdf

One more note. In most states a QDRO is an enforcement tool, like a garnishment or an attachment, and is designed to enforce an order of the court, usually the Judgment of Absolute Divorce ("JAD") that may or may not incorporate a written Agreement of the parties. The order of court to be enforced by a QDRO is an award to the Alternate Payee of a share of the Participant's pension or retirement benefits. The foundational document creating the obligation is the JAD and/or the Agreement of the parties incorporated into the JAD, not the QDRO. Whether or not collection of the Alternate Payee's share can be achieved with a QDRO, for example, in a case where the Participant quits his job and pulls out all of the money in his 401(k), the Participant's obligation still exists. It just has to be collected by means other than from the Plan Sponsor. Houses, cars, investment accounts, bank accounts, wage attachments, are still means to that ultimate end. One thing that I have found helpful is to send a simple Notice of Adverse Claim - Interest to the Plan Administrator as soon as the Agreement if signed, or if there is no Agreement, as soon as the Judge has entered the JAD. See the attached examples. Flesh it out as much as you want. Does it have any legal significance? Probably not. But Plan Administrators don't want to find themselves entangled in law suits and generally put a hold on the Participant's Plan benefits for a reasonable period of time. David Notice of Adverse Claim- Interest Cover Letter.pdf Notice of Adverse Claim-Interest.pdf

I assume you have evidence of having sent the revised QDRO with the correct name of the Plan to the N/G Plan Administrator. You should have received a "Determination" letter of some sort from the Plan Administrator and N/G should have a copy of that letter even if Fidelity does not. I also assume that N/G was handling its own QDROs and did not at that time have a third party administrator ("TPA") like Fidelity. Here is a form of Model QDRO they sent to me for a 2010 case (when AON was the TPA), but it's dated January, 2006. I don't know if this will be helpful. Northup Grumann QDRO.pdf AON was also known as AON Hewitt, but they no longer exist and were taken over my Alight Solutions. This is the website where I access their QDRO Center - https://beplb08.alight.com/qoc/b/QdroOvrw010QdroOvrw.htm, but they have contact information here - https://beplb08.alight.com/qoc/b/CsCntcUs010CntcUs.htm. Maybe they have the information you need. The law requires the Plan Administrator, or the TPA acting on behalf of the Plan Administrator, to made a determination within 18 months after receipt, of whether or not the QDRO is qualified. Take a look at the attached DOL, ESBA booklet, Chapter 2. DOL re QDROs.pdf I am not sure about the remedy iif that 18 month requirement is not met, so everyone is correct that you need to hire an attorney. A few things you can tell you attorney to keep in mind. 29 USC Section 1132(g), 28 USC Section 1927, deal with an award of legal fees against the Plans, and the Supreme Court case of Chambers v. Nasco,Inc., 501 U.S. 32, 44–46 (1991) outlines the court's inherent power to assess attorney fees especially when a party is litigating in bad faith. You can find this case at - https://scholar.google.com/scholar_case?case=12894484016394117131&q=chambers+v.+nasco,+inc.&hl=en&as_sdt=20000003 Good luck. DSG

The fact that the Plan Administrator approved the QDRO means nothing. They will accept whatever if put in front of them if it reflects the implementation of the benefits provided in the Plan Documents. It is not ordinarily their job to look behind or investigate the QDRO and determine whether the court had proper jurisdiction or acted pursuant to State law. At OPM for example, in administering CSRS and FERS Orders 5 CFR § 838.101(a)(2) states: "In executing court orders under this part, OPM must honor the clear instructions of the court. Instructions must be specific and unambiguous. OPM will not supply missing provisions, interpret ambiguous language, or clarify the court's intent by researching individual State laws. In carrying out the court's instructions, OPM performs purely ministerial actions in accordance with these regulations. Disagreement between the parties concerning the validity or the provisions of any court order must be resolved by the court." But, re: ERISA, see Advisory Opinion No. 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."

There are potentially 3 documents in play: (i) the written Agreement of the parties, if any; (ii) the Judgment of Divorce; and, (iii) the QDRO. It is not clear from your posts where the sentence, "The Participant shall not be required to name the AP as his surviving spouse before his annuity commencement date" is located. The important issue is the intent of the parties in their written Agreement, or, if there was no written Agreement, then in the terms of the Judgment of Divorce. The QDRO is an enforcement tool designed to implement and enforce the agreement of the parties or the ruling by the court. That's the starting point. What did the parties intend, and where is that intention reflected? The ability of the Plan to take action may depend on the type of Plan, that is, a private company plan, a Federal, State or municipal plan, or an international plan. So get back to us with more specifics. These matter are very fact intensive. And BTW, you need to hire a lawyer immediately so that the other party doesn't get the court to act in your best interests without you having your say.

Back in February of 2020, the plan sponsor received a draft QDRO to review. FROM WHOM? WHAT OTHER DOCUMENTS (SUCH AS THE JUDGMENT OF DIVORCE OR THE MARITAL SETTLEMENT AGREEMENT) WERE PROVIDED? Everything was in order and client was to tell the attorney to submit for signature. WHO TOLD THIS TO THE "CLIENT" AND WHO WAS THE CLIENT, THE PARTICIPANT OR THE ALTERNATE PAYEE? WAS THE APPROVAL AND ADVICE TO TELL THE ATTORNEY TO SUBMIT IT FOR SIGNATURE IN WRITING? I ASSUME THE DIVORCE WAS GRANTED PRIOR TO FEBRUARY 20, 2020. THE PLAN DOCUMENTS MAY DEFINE THE DUTIES OF THE PLAN SPONSOR WHEN THEY ARE ON ACTUAL NOTICE THAT A QDRO WILL BE FORTHCOMING. MOST PLANS WITH WHOM I DEAL WILL PUT A "HOLD" ON THE MONEY FOR SOME PERIOD OF TIME AND NOT ALLOW THE PARTICIPANT TO MAKE A WITHDRAWAL, LOAN OR DISTRIBUTION. THE PLAN HAS A FIDUCIARY OBLIGATION TO BOTH THE PARTICIPANT AND THE BENEFICIARY. NOTE THAT THE DRO IS NOT "QUALIFIED" UNTIL IT IS APPROVED BY THE PLAN AND BECOMES A QDRO. SO ISN'T ACTUAL NOTICE THAT A DRO IS COMING THE SAME AS HAVING A DRO IN HAND THAT HAS NOT YET BEEN APPROVED BY THE PLAN AND BECOME A QDRO. AND THE PLAN HAS 18 MONTHS TO APPROVE OR REJECT A QDRO. The signed QDRO was delivered to the plan sponsor in March of 2021 ( signed by the judge one year after the draft was reviewed). In September of 2020 the participant took a COVID-19 withdrawal. Leaving an account balance of about $1000. HOW LARGE WAS THE WITHDRAWAL? The account balance as of today is only $5,000. HOW DID IT INCREASE FROM $1,000 TO $5,000? 1. Is that that the amount the plan pays to the Alternate Payee? The Alternate Payee would then have to seek legal action against the participant for the balance? UNLESS THE PLAN HAD A DUTY PER THE PLAN DOCUMENTS (OR THE UNDERLYING LAW) TO PROTECT THE INTEREST OF THE ALTERNATE PAYEE, THE PLAN'S LIABILITY WILL BE LIMITED TO WHAT IS LEFT IN THE PLAN. ANOTHER ISSUE NOT ADDRESSED IS WHETHER OR NOT THE PLAN DOCUMENTS REQUIRE NOTICE TO AND CONSENT BY A SPOUSE OR A FORMER SPOUSE BEFORE THE PARTICIPANT IS ALLOWED TO TAKE A WITHDRAWAL, LOAN OR DISTRIBUTION. MANY PLANS REQUIRE SUCH CONSENT. SEE BELOW. 2. Is the plan sponsor responsible for the balance of the QDRO Payment since they allowed the withdrawal in September? MAYBE. Since the signed QDRO was not recorded by the court, I ASSUME YOU MEAN "ENTERED" BY THE COURT. was the participant able to access funds from the account? THE ABILITY OF THE PARTICIPANT TO ACCESS THE FUNDS IN HIS ACCOUNT HAS NOTHING TO DO WITH THE LATER ENTRY OF A QDRO. IT IS DETERMINED BY THE PLAN DOCUMENTS. YOU DIDN'T SAY WHETHER THE PLAN WAS UNDER ERISA (ALTHOUGH USE OF THE WORD "QDRO" SUGGESTS THAT IT IS), OR UNDER A FEDERAL, STATE, COUNTY OR MUNICIPAL PLAN. Bottom line, does approving the draft QDRO require the plan sponsor to put a hold on the account and limit any withdrawals, or is the plan sponsor only responsible once they receive the signed QDRO. THE ANSWER DEPENDS ON THE PLAN DOCUMENTS AND THE UNDERLYING LAW. DSG

You have a number of possible approaches. The first would arise if NYCERS is subject to ERISA. I don't think it is, but pursuant to the Pension Protection Act of 2006 ("PPA") a post mortem QDRO is acceptable. See 29 CFR 2530.206. It is possible that a plan not subject to ERISA may still permit post mortem QDROs under state law. See for example the Maryland case of Robinette v. Hunsecker, 212 Md.App. 76, 66 A.3d 1093, 293 Ed. Law Rep. 892, (2013) involving a Plan under the auspices of the Maryland State Pension and Retirement System and not subject to ERISA or to the PPA. In other jurisdictions the approach is to allow the entry of a nunc pro tunc QDRO in a manner that backdates the QDRO to a date prior to the Participant's death. See, e.g., 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). See also Patterson v. Chrysler Group, LLC, Case No. 15-10563, United States District Court, E.D. Michigan, Southern Division (February 17, 2016) - https://scholar.google.com/scholar_case?case=17997658400954740315&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt. Holding that a nunc pro tunc QDRO entered by a State court trumps ruling of Plan Administrator that the “QDRO” submitted did not satisfy ERISA requirements so as to make it acceptable as a valid QDRO that the Plan was required to implement during the lifetime of the Participant. This case was reversed on other grounds by the US District Court of Appeals, 6th Circuit, 845 F.3d 756 (2017), but the opinion is worth reading. You can find it at https://scholar.google.com/scholar_case?case=17591176685277926266&q=patterson+v.+chrysler&hl=en&lr=lang_en&as_sdt=4000800000000000000ffffffffffffe04&as_ylo=2017&as_vis=1

I don't know if this will help, but see Einhorn v. McCafferty, No. 5:14-cv-06924, United States District Court, E.D. Pennsylvania (March 31, 2016) that you can find at https://scholar.google.com/scholar_case?case=8170636359019689152&q=Einhorn+v.+McCafferty,&hl=en&lr=lang_en&as_sdt=20000006&as_vis=1 In this case the District Court discusses the difference between shared and separate interest allocation of a defined benefit plan, the age 50 rule and the “severed rule.” The Court explained: “Here, as in Files, the language of the settlement agreement reveals that Kevin intended to afford Deborah a separate interest in fifty percent of his pension, rather than a mere interest in sharing a portion of any benefit payments that he later received. This is a critical difference, because under the shared payment approach, the former spouse receives nothing if the participant does not receive any payments (there would be no payments to split). Kevin died before he began receiving retirement benefits, which means that if Deborah had been given only a shared payment interest, she would not have been entitled to any benefits. But under the separate interest approach, "because the spouses' benefits are independent, neither spouse's benefits stop upon the death of the other." See 2 Brett R. Turner, Equitable Distribution of Property § 6.34 (3d ed.), Westlaw (database updated Nov. 2015) (emphasis omitted). “However, there may be a problem for Deborah. At the time of Kevin's death, he had not yet reached the minimum age to be eligible to start receiving benefits from the Plan. While a person who is afforded a separate interest in someone else's pension plan is treated like a plan participant in his or her own right, that person nonetheless "cannot . . . 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." QDROs, supra, at 40. Under the terms of some pension plans, this means that if the participant dies before reaching the minimum retirement age, any person who holds a separate interest in the participant's plan loses that interest. See Raymond S. Dietrich, Qualified Domestic Relations Orders § 10.04[1], Lexis (2015). “Other pension plans are different. They apply the so-called totally severed approach, which means that when a participant gives another person a separate interest in his or her pension plan, the plan completely separates the two interests, leaving the participant and the beneficiary as two autonomous plan participants. Under these plans, ‘an alternate payee [can] begin receiving her entitlement when the plan participant reaches retirement age, whether the participant actually retires or continues working. If the plan participant dies before retirement, the alternate payee may begin receiving benefits when the participant would have reached retirement age; the participant's death, whether it occurs before or after the participant reaches retirement age, therefore does not affect the alternate payee's entitlement.’ “Krushensky v. Farinas, 189 P.3d 1056, 1062 (Alaska 2008) (citing David Clayton Carrad, The Complete QDRO Handbook 70 (2d ed. 2004)); see Dietrich, supra, § 10.04[1]. This approach fully protects a former spouse who holds a separate interest in a pension against the risk of the participant dying before reaching the minimum retirement age.” You can find Krushensky at https://scholar.google.com/scholar_case?case=12011889634268315346&q="severed"+"separate+interest"+"defined+benefit"&hl=en&lr=lang_en&as_sdt=20000006&as_vis=1. These are the only two cases I have found in the US discussing the concept of "totally severed" as it applies to QDROs or divorce or "separate interest" or "defined benefit" or subsidy or subsidized. So I suspect the answer to your questions will be found in the language of the QDRO itself, or in State law, or in the Plan documents. I think your Plan Administrator needs something to hang his/her hat on other then his own preference. I don't think the age 50 rule prevented the early retirement subsidy from kicking in. I don't think IRC 417(c) changes that outcome. The benefit never came into existence.

In most states the law provides that a final Judgment of Absolute Divorce (whether it incorporates a written agreement of the parties or not) cannot be reopened unless there is "fraud, mistake or irregularity". The "fraud" must be extrinsic fraud and concealment of assets is classified as intrinsic fraud and reopening the case is therefore barred by concepts of res judicata and collateral estoppel. "Mistake" only applies to a jurisdictional mistake and, as above, concealment of an asset is not deemed to be a jurisdictional mistake so reopening the case will be barred by res judicata and collateral estoppel. (Note that all of the foregoing is Maryland law.) Irregularities warranting the reopening of the case most often involve a judgment that resulted from a failure of process or procedure by the clerk of a court, including, for example, failures to send notice of a default judgment, to send notice of an order dismissing an action, to mail a notice to the proper address, and to provide for required publication. Such irregularities do not include concealment of assets, and once again res judicata and collateral estoppel present the reopening of the case. Note that in all states there are time periods after the entry of the Judgment of Absolute Divorce that a party can go back and ask for a correction, but these normally range from 15 to 90 days, after which the "fraud, mistake and irregularity" rules apply If you cannot reopen the case you cannot have the court enter a QDRO and cannot collect your share of pension from the Plan itself. But as noted by another contributor, many Plans will accept a written agreement of the parties incorporated into the Judgment of Absolute Divorce, or the Judgment of Absolute Divorce itself, as a QDRO if it contains all of the information necessary to satisfy IRC 414(p)(2) that sets forth the information that needs to be provided to make it a Domestic Relations Order: "A domestic relations order meets the requirements of this paragraph only if such order clearly specifies— (A) the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order, (B) the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined, (C) the number of payments or period to which such order applies, and (D) each plan to which such order applies." Even if you cannot obtain a QDRO, and even if the JAD cannot qualify as a QDRO, the obligation of the Participant does not disappear. In most jurisdictions a QDRO is considered to be an enforcement tool, like a garnishment or an attachment. You can always file suit against the Participant and ask the court to order that he make the payments directly to you. Unfortunately there is no way to restore the survivor annuity benefit if that was the intention of the parties. Depending on state law, if you were awarded modifiable alimony, you may be able to ask the court to modify the alimony to include the amount of pension benefits that you cannot receive from the Plan itself. It is pretty hard to hide pension and retirement benefits. Once you know the name of the Participant's employer your attorney can go to https://www.efast.dol.gov/portal/app/disseminate?execution=e1s1 and type in the employer under Sponsor and find every ERISA qualified pension and retirement plan sponsored by that employer and the Form 5500 required to be submitted with respect to each plan to the Department of Labor, Employee Benefits Security Administration. Note that Federal, state, county, municipal and other local plans will not be found at this link, nor will International plans (e.g. World Bank, IMF, United Nations) or any plan that is not "qualified" (e.g. stock options, deferred compensation, etc. If and when the court enters a QDRO you will submit a certified copy to the Plan and they will implement its terms. If you wife has retired it is highly unlikely that you can get a "separate interest" share of her Plan benefits. Most likely you will receive a "shared interest" allocation whereby you will receive a percentage of each payment if, as and when she receives her share. If you were still married when she retired, and if she participated in an ERISA qualified plan or a Federal Plan (FERS, CSRS or Military), she was required to name you as the beneficiary of a Qualified Joint and Survivor Annuity unless you affirmatively waived it. If she retired after the divorce was final, they she was not required to name you as beneficiary. But this general does not necessary apply to state, county and municipal plans. Bottom line. Find an experienced family law attorney who is knowledgeable about the allocation of pension and retirement plans.

Follow up: In the Joint Committee on Taxation, Explanation of Technical Corrections of the Tax Reform Act of 1984 and Other Recent Tax Legislation, 100th Cong., 1st Sess. (Comm. Print 1987) at 222, it provides that if the Alternate Payee is a minor or is legally incompetent, the QDRO dan require payment to someone with legal responsibility for the Alternate Payee (such as a guardian or a party acting in loco parentis in the case of a child, or a trustee or agent for the Alternate Payee. I don't know whether a GAL meets the definition above. A suggested alternative was to have the payment made to the child support collection office on behalf of the child with instructions to pay it to the GAL. David S. Goldberg

In the case of In re: Blaemire that you can find at https://scholar.google.com/scholar_case?case=7414914616513795651&q=blaemire&hl=en&lr=lang_en&as_sdt=20000003&as_vis=1 the Bankruptcy Court for the District of Maryland held that payments made to an attorney for a child or for a Guardian Ad Litem ("GAL") appointed for a child are in the nature of "child support" and not dischargeable in Bankruptcy. Cases from other jurisdictions are cited in the Court's opinion. [You might want to read the 13 other cases that discuss Blaemire to see if it's interpretation of the law is the same in your state or if you State law is silent on the subject. See https://scholar.google.com/scholar?hl=en&lr=lang_en&as_sdt=20000003&as_vis=1&q="In+re%3A+Blaemire"&btnG= ] If such payments are indeed "child support", then collection can be made via the use of a QDRO per IRC Section 414(p)(1)(b). Many Court child support collection departments rely upon the use of QDROs as their primary method of collecting child support arrears. So you might want to check with your local Court and see: (i) if they will collect the amounts due to you and pay it over to you; or, (ii) provide you with the forms and procedures that they use for their QDRO collection efforts. Note that your QDRO can ask for a lump sum distribution of up to 100% of the Participant's vested balance. It does not matter whether of not the Participant is eligible to take distributions himself. The GAL will be listed in the QDRO as the Alternate Payee and the GAS will provide the Plan Administrator with his Social Security number and date of birth. That means the GAL will be taxed on the amount he receives. A percentage will likely be withheld. There is a problem in that under IRC 414(p)(8), an Alternate Payee is defined as the "spouse, former spouse, child or other dependent of a participant who is recognized by a domestic relations order as having a right to receive all, or a potion of, the benefits payable under a plan with respect to such participant." Since the GAL lawyer does not meet any of those definitions, it would seem that a QDRO will not be available to collect his fees directly. BUT..... The work around is to name the child as the Alternate Payee, or the GAL "as trustee" for and on behalf of the child, and to specifically provide that the Participant will be solely responsible for the payment of all taxes and tax penalties that result from the distribution to the GAL from the Participant's account. [Since under the IRC child support is not deductible by the payor or taxable to the payee and is paid on an "after tax" basis.] But this raises the question of whether the check from the Plan Administrator will be sent to the mother who will have to then be ordered by the Court to transfer the payment to the GAL. Depending on the amount involved, the GAL might find it makes more sense to get a judgment for the fees due (he should already had such a judgment) and pursue collection by more traditional means - garnishment of the dad's income or attachment of his bank account or other assets. This is not something that you can do without an attorney experienced in QDRO matters and I don't think you can recover those additional fees. So a cost/benefit analysis is in order. One last matter. The laws relating to QDROs come from the Federal statute ERISA. There is no need for the Court in your state to have "personal jurisdiction" over the Plan or the Plan Administrator. Upon receipt of a certified copy of a QDRO from any state Court, the Plan Administrator is required to comply. David S. Goldberg

Actuaries, accountants, statisticians, mathematicians, and scientists, all live in a world where 1 +1 MUST = 2. Lawyers know that when it comes to legal matters 1+1 often equals 3.25 for no logical reason and despite the fact that it seems unfair and contrary to common sense. So it seems that we live in 2 different worlds where many of you lack the intellectual curiosity to READ anything longer than 2 sentences. I am wasting my time here.

Thank you, Mike. I missed the follow-up email saying that the parties were married for 3 years. Mea culpa. Since these messages tend to be truncated, I have attached my comments in a PDF document. We are all a product of our life experiences. My very first case as a lawyer involved filing suit on behalf of a physician for breach of a contract with a 3 doctor medical practice to employ him at a certain salary and for a certain period of time. They terminated his employment early and refused to pay the severance pay that was also part of the contract. During their depositions I asked the three doctors routine questions including where the attended college and medical school. Their demeanor didn't pass my personal smell test and I checked with the medical schools, and, lo and behold, they had not attended or graduated from those schools or any other medical schools. They were complete frauds who were what we used to call "fat doctors" who didn't need to affiliate with any hospitals that might have closely investigated their credentials. To my client's credit, he was willing to forego any possibility of recovering on his claim, and agreed to turn the so-called "doctors" in to the police to protect their patients. They were all convicted of multiple offences and went to jail. On another occasion I was sitting in court waiting for my client's trial for speeding, reckless driving, hit and run of parked cars, driving while intoxicated, driving while his license was revoked, going through multiple stop signs and red lights, and turning out lights to avoid identification - basically every moving violation in the Code that did not involve death. I was convinced that he was going to jail. While waiting for the case to be called I was thumbing through the Maryland Code and came across a little section at the end that said, "No case shall the tried except upon a Summons containing an affirmation of the arresting officer." "Affirmation" means "I solemnly swear the that contents of this document are true and accurate to the best of my knowledge, information and belief". I looked at the stack of Summonses that my client had received and no such language was present. When the case was called I moved to dismiss the charges. The judge not only dismissed my client's charges, but all of the charges against the 100 or so people waiting for their trial. The MVA changed the form within a week and added the affirmation language. To avoid being charged again, my client left Maryland and never returned. [I know what a bad thing you think I did by helping this guy escape punishment for his many crimes. But that was MY JOB. Truth and justice is found in our adversary system, like it or not.] What you guys are talking about is what we learn in law school - "don't fight the facts". But that applies only to hypothetical situations presented for testing purposes. If you don't fight the facts in you own case you can be sure that your opponent will do so, and the Judge also. The concept underlying cross examination is to ask what, where, who, when, why, how, how much. Lawyers who don't do this are sued for malpractice and a violation of the Code of Professional Responsibility. In Howell v. Howell the Supreme Court held that a state court may not order a veteran to indemnify a divorced spouse for the loss in the divorced spouse's portion of the veteran's retirement pay caused by the veteran's waiver of retirement pay to receive service-related disability benefits. It was clear however that the Justices were wholly unfamiliar with divorce law. For example, they failed to clearly distinguish between "retired pay" as "property" and suggested that an adjustment could be made if "retired pay" was viewed as "income" that is, alimony, or that an adjustment could be make with respect to other marital property. Said the Court: ""We recognize, as we recognized in Mansell, the hardship that congressional preemption can sometimes work on divorcing spouses. See 490 U. S., at 594. But we note that a family court, when it first determines the value of a family’s assets, remains free to take account of the contingency that some military retirement pay might be waived,or, as the petitioner himself recognizes, take account of reductions in value when it calculates or recalculates the need for spousal support. See Rose v. Rose, 481 U. S. 619, 630–634, and n. 6 (1987); 10 U. S. C. §1408(e)(6)." (Emphasis supplied.) They also failed to distinguish between VA disability pay on he one hand and Combat Related Special Compensation and disability retirement pursuant to Chapter 61 of 10 USC §1201 et seq., on the other hand. Neither of the latter two would meet the criteria set forth by the Supreme Court in Howell. There are very many courts that have found loopholes in Howell. So I for one am not willing to assume that my interpretation of the law or your interpretation of the law is the final word on the subject. There will be a case, or an obscure section of ERISA or REA or the PPA, or a section in CFR, that will change the predicted outcome, sometimes for nonsensical reasons. Good lawyers never accept the proposition that 1 + 1 = 2 all the time. Yes, Kennedy dealt with Federal preemption of State law in a divorce situation. Here are 35 Federal opinions that address 29 USC 1104(a)(1)(D) - https://scholar.google.com/scholar?q="29+USC+1104(a)(1)(D)"+"surviving+spouse"&hl=en&as_sdt=20000003&as_ylo=2009&as_yhi=2020 In Metlife v. Akpele, the 11th Circuit Court of Appeals held: "This court likewise holds as mandated by the Supreme Court in Kennedy that a party who is not a named beneficiary of an ERISA plan may not sue the plan for any plan benefits. A party, however, may sue a plan beneficiary for those benefits, but only after the plan beneficiary has received the benefits. See Kensinger, 674 F.3d at 132." Based on this there would seem to be no claim against Fidelity. In IBEW v. Lee, the court stated: " Wayne identified Lois as his spouse, but the validity of that designation appears to be incorrect. Mississippi, the state in which Wayne and Lois married, observes a presumption in favor of the validity of a successive marriage, but that presumption may be overcome with evidence that the first marriage was not dissolved by divorce or annulment. Dale Polk Const. Co. v. White, 287 So.2d 278, 279 (Miss. 1973); United Timber & Lumber Co. v. Alleged Dependents of Hill, 84 So.2d 921, 924 (Miss. 1956). Washington and Tennessee maintain the same rule.[3] Wash. Rev. Code § 26.04.020(1)(a); Seizer v. Sessions, 915 P.2d 553, 559 n.22 (Wash. Ct. App. 1996), rev'd on other grounds, 940 P.2d 261 (Wash. 1997); Guzman v. Alvares, 205 S.W.3d 375, 381 (Tenn. 2006)." But IBEW v. Lee did cite Moore v. Philip Morris - https://scholar.google.com/scholar_case?case=5264085434229152959&q="29+USC+1104(a)(1)(D)"+"surviving+spouse"&hl=en&as_sdt=20000003&as_ylo=2009&as_yhi=2020 decided 15 years before Kennedy, where the decedent wife named her children as beneficiaries of her company sponsored life insurance with the intention of excluding her adulterous husband. The US Court of Appeals held: "In order to rectify certain inequities arising under ERISA regulated plans, REACT amended ERISA by, among other things, "providing for `automatic survivor benefits to the spouses of vested [ERISA plan] participants.'" Heisler v. Jeep Corp.-UAW Retirement Income Plan, 807 F.2d 505, 509 (6th Cir.1986) (quoting S.Rep. No. 575, 98th Cong., 2d Sess. 12, reprinted in 1984 U.S.Code Cong. & Admin. News 2547, 2558). REACT established the following criteria for waiver of benefits by the participant spouse: 29 U.S.C. § 1055(c)(2)(A)(i); see also 26 U.S.C. § 417(a)(2). "In this case, although Lillian D. Beard designated her three children as beneficiaries of the Philip Morris deferred profit sharing plan, James R. Beard, Lillian's husband, never gave his consent to that election. Thus, given the clear and unambiguous terms of the statute, we conclude that only he is entitled to the benefits of the plan. See Hurwitz v. Sher, 982 F.2d 778, 781 (2d Cir.1992) (applying plain meaning of REACT in holding that surviving spouse entitled to proceeds of ERISA plan absent properly executed consent), cert. denied, ___ U.S. ___, 113 S.Ct. 2345, 124 L.Ed.2d 255 (1993); Donohue v. Shell Provident Fund, 656 F.Supp. 905, 908-09 (S.D.Tex.1987) (same); Binks Mfg. Co. v. Casaletto-Burns, 657 F.Supp. 668, 671 (N.D.Ill.1986) (same), aff'd in part and dismissed in part, 822 F.2d 1090 (7th Cir. June 15, 1987)." 29 USC 1104 was not mentioned in the opinion and it appears that that section may not have been added until 2006 with the PPA (More research needed.) David FMS Message 3-28-2020.pdf

Will you agree that we don't actually know ALL of the facts necessary to formulate an intelligent and fully informed response? Will you agree that the "facts as presented to us" are not necessarily the facts that were presented to the attorneys for Fidelity, and that we don't know why Fidelity did what they did? Would you agree that it might be more prudent to wait until radublu finds out ALL of the facts before expressing an opinion? What exactly has this thread provided that might be useful to radublu? Any case law? Any statutes or CRF regs or learned treatises or law review articles? Who should be sued, and on that legal or equitable theories, and in what judicial system, and for what relief? You may be right about Kennedy and I will maintain an open mind; but I deal with the LAW as set forth in statutes and/or by the courts. I need something I can point to and hang my hat on. Hubert Humphrey once said that "The right to be heard does not include the right to be taken seriously." That applies to all of us. I want to see something authoritative from a Court or in the law before I concede and apologize, or gloat.

Do we have any idea why in the face of this magical beneficiary change that occurred on the participant's marriage Fidelity nevertheless paid out the money to the son? My point was that more facts are needed. My cynicism is born of 53 years of practicing law where it is inevitably true that there is more to be known about every situation before reaching a conclusion. Clients almost never tell their attorneys everything. AsI pointed out, we don't even know whether or not the parties had been married for a year at the time of the husband's death. As much as I hate working with Fidelity, I'm not willing to assume that they had sinister motives in paying the money to the son instead of the spouse. I'm not even willing to assume that the marriage between the parties was a valid marriage.

Your analysis of Kennedy is correct. It dealt with the preemption of state law by Federal law, ERISA. That is why I said: "But it is first important to note that this is not a clean analogy. The Kennedy case was premised on the preemption of state law by ERISA in the first instance. In the situation presented we are dealing with two competing ERISA provisions, one giving the spouse the entitlement to 401(k) Plan proceeds, and the other permitting the Plan Administrator to distribute the proceeds to the NAMED beneficiary." I have not located a case that addresses that exact situation. One section of ERISA says that the spouse is entitled to benefits on the death of the Participant. Kennedy says the Plan may pay the beneficiary named on the form sitting in the Plan's file. Which takes priority? There are plenty of questions that need to be addressed and answered: (i) Keeping in mind that we have multiple players: (i) the Plan Administrator; (ii) the Third Party Administrator acting as agent for the Plan Administrator; (iii) the surviving spouse; (iv) the son as named beneficiary, what court has jurisdiction to adjudicate the issue - State or Federal? What will be the anticipated cost of litigating this issue? (ii) Inasmuch as the surviving spouse has the ability to file a post distribution suit against the son to recoup the 401(k) proceeds that should have been paid to the surviving spouse, isn't the surviving spouse in a position to be made whole indirectly, thereby making the issue moot? A basic rule of appellate practice is that if the court doesn't have to decide an issue to resolve the case it will not do so. NB: Appellate court rulings don't generally take into account the difficulty or impossibility of the winning litigant to actually collect the damages to which he/she is entitled? For example, in Dexter v. Dexter, 105 Md.App. 678, 661 A.2d 171 (1995) [the essential holding of which was superseded by Howell] the husband signed an Agreement giving his ex-wife a portion of his military retired pay. Thereafter he waived a portion of that retired pay in order to receive tax free VA disability benefits. The CSA held that the husband had breached the Agreement and that the measure of damages was what the ex-wife would have received but for the breach. Not addressed was the need for the ex-wife to file multiple suits from time to time in order to obtain judgments on which she could execute, and the difficulty of collecting such judgments. (iii) On whom should we place the blame? Let's assume the Plan had 100,000 participants and that Fidelity had no idea that the Participant was married at the time of his death? What if the Fidelity form submitted by the son to Fidelity requesting payment did not ask whether the Participant was married at the time of his death? What if the Fidelity form did include such a question and the son said "no"? What if he said "no" because he didn't know his father had re-married? Let's assume the son opted for a direct taxable distribution (less withholding) and either secreted the money it in a bank in a numbered account in the Cayman Islands, or paid a visit to Las Vegas and lost it all at the craps table. Let's assume that the Participant intended to leave his 401(k) account to his son and that he and the spouse had discussed it and she said, "Of course honey. I understand your desire to take care of the child from your former marriage. That's okay with me", but never signed a consent or a waiver? Attached find a FAQ Sheet issued by the EBSA. It provides in pertinent part, "If you were single when you enrolled in the plan and subsequently married, it is important that you notify your employer and/or plan administrator and change your status under the plan." Why is this "important"? What if you don't do so? What does this mean? What are the consequences of not doing so? What is the applicable IRC or CFR provision that prompted this comment? Was there an antenuptial agreement, or a postnuptial agreement, or a marital settlement agreement, or a Joint Last Will and Testament, wherein waiver language might be found? Did Fidelity provide notice to anyone of the application be the son to receive the 401(k) account proceeds? Should the decedent get a pass for failing to change the beneficiary? Would it have mattered? There are lots of questions that need be answered before you can fault Fidelity for paying the 401(k) to the named beneficiary? Keep in mind that none of the QDRO or "former spouse" cases can be cited as authority for the issue at hand. In 32 years of preparing QDROs and acting as an expert witness I have never some across a case with this set of facts - surprising so. I would love to be directed to a case on point. The law should be clear. Too often it is not. One and one should always = 2. Sometimes it equals 3.25. ***One matter not addressed in the question presented was how long the parties had been married when the Participant died? Some retirement plans provide that a spouse of a participant will not be treated as married unless he or she has been married to the participant for at least a year. See 26 CFR 1.401(a): "Q-26: In the case of a defined contribution plan not subject to section 412, does the requirement that a participant's nonforfeitable accrued benefit be payable in full to a surviving spouse apply to a spouse who has been married to the participant for less than one year? A-26: A plan may provide that a spouse who has not been married to a participant throughout the one-year period ending on the earlier of (a) the participant's annuity starting date or (b) the date of the participant's death is not treated as a surviving spouse and is not required to receive the participant's account balance. The special exception described in section 417(d)(2) and Q&A 25 of this section does not apply." “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” ― John Adams David ESBA FAQ.pdf

In Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285, 299-304 (2009), the Supreme Court held that retirement plans may rely on the plan terms and beneficiary designation forms in determining the proper recipient of survivor benefits. The ruling resolved a split among the federal courts, many of which had ruled that plans had to recognize the validity of divorce decrees in which a surviving spouse had purportedly waived her right to a survivor benefit from her ex-spouse’s pension plan, even if she remained the designated beneficiary on plan forms after the divorce. Although the Court’s ruling leaves a number of questions unanswered, it does make clear that, in most situations, a plan administrator may now ignore such a divorce decree and pay out a survivor benefit in accordance with the plan’s terms and beneficiary designation forms on file. It would seem to follow logically that the Plan Administrator acting through Fidelity, most likely the Third Party Administrator, acted property in paying out the 401(k) Plan to the named beneficiary. But does the intended beneficiary have the right to pursue the named beneficiary to recoup amounts paid out to the named beneficiary. The Kennedy court stated 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.) Many appellate decisions have addressed such post distribution suits and have adopted a theory of constructive trust to justify a claim against the named beneficiary (not the Plan Administrator). But it is first important to note that this is not a clean analogy. The Kennedy case was premised on the preemption of state law by ERISA in the first instance. In the situation presented we are dealing with two competing ERISA provisions, one giving the spouse the entitlement to 401(k) Plan proceeds, and the other permitting the Plan Administrator to distribute the proceeds to the NAMED beneficiary. In Andochick v. Byrd, 709 F.3d 296 (2013), the United States Court of Appeals, Fourth Circuit, answered the question left open in the Kennedy case, this is, whether an action could be brought against the recipient of life insurance proceeds (or retirement benefits) by reason of having been the named beneficiary of a company plan covered by ERISA, and restore those benefits to the person who equitably should have received such benefits. The issue was stated by the Court as follows: “Scott Andochick brought this declaratory judgment action, asserting that ERISA preempted a state court order requiring him to turn over benefits received under ERISA retirement and life insurance plans owned by his deceased ex-wife, Erika Byrd. ERISA obligates a plan administrator to pay plan proceeds to the named beneficiary, here Andochick. The only question before us is whether ERISA prohibits a state court from ordering Andochick, who had previously waived his right to those benefits, to relinquish them to the administrators of Erika's estate.” The Court held: “Finally, as the Third Circuit recently explained when addressing facts nearly identical to those at hand, “the goal of ensuring that beneficiaries ‘get what's coming quickly’ refers to the expeditious distribution of funds from plan administrators, not to some sort of rule providing continued shelter from contractual liability to beneficiaries who have already received plan proceeds.” Estate of Kensinger v. URL Pharma, Inc., 674 F.3d 131, 136 (3d Cir.2012). Permitting a post-distribution suit against a plan beneficiary based on his pre-distribution waiver does not prevent the beneficiary from “get[ting] what's coming quickly.” Rather, as the district court noted, it merely prevents him from keeping what he “quickly” received. Thus, we conclude that permitting post-distribution suits accords with the ERISA objectives discussed in Kennedy.” (Emphasis supplied.) There are many other cases with similar holdings. The issue in the instant case may be whether or not Fidelity was deemed to be on notice that the Participant was married at the time of his death, or was required to make that inquiry before paying out the 401(k) account to the son. I think not. If the son is successful in secreting the funds in question in his brother-in-laws corporate account in Tierra del Fuego, then the case of 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 __ , (2016), may become pertinent. In that case 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. Is this applicable to the instant case? Who knows. An interesting situation. David

I could not locate anyone in Monroe County, but here are three names I found: Good luck. Brian J. Cali Dunmore Pennsylvania 18512-2431 Arthur F. Silverblatt Wilkes Barre Pennsylvania 18701-1704 Jeffrey M. Williams Doylestown Pennsylvania 18901-4332

Your situation is too difficult to be handled in this sort of forum. You need to hire a lawyer in the jurisdiction where the divorce was granted and make sure that lawyer understands how the system works in Pennsylvania and how your particular pension works as well. If no QDRO is entered she will not get her share, but it may accrue so you are wise to set aside a sum to pay her when and if the matter is resolved. Keep in mind that you are paying state and Federal taxes on the full amount you receive, so the amount you give to her will have to be reduced by the amount of taxes you paid on her share. You may need an accountant to help you figure that out. Where was the divorce granted?

I am coming late to this dance, but in my experience Plan Administrators will very often adjust for gains, losses and investment experience from the valuation date to the date of rollover, or distribution, or segregation of benefits to the Alternate Payee whether or not the QDRO requires it or not. In Maryland that result is implicitly mandated by the language of our statute authorizing the Court to transfer an "ownership interest" in a pension, retirement, profit sharing or deferred compensation plan from one party to the other.Gains, Losses, Ownership Interest and Constructive Trust.pdf The legal support is found in the attached Memo. Let me add that in 32 years of preparing QDROs I have never seen an Alternate Payee ask for an in-kind distribution or a Plan make a in-kind distribution.

SEE MY RESPONSES IN ALL CAPS BOLDED: My ex wife and I were married Sept. 1989, separated in March 2008 and were divorced in August 2009. I am a newly retired police officer and she is a nurse. We both have pensions. She is entitled to 25% of mine (I thought up to the date of separation which is 18 years). I ASSUME THAT YOU WERE NOT AWARDED A SHARE OF HER PENSION. PLEASE CONFIRM She was ordered by a judge to give me half of her 401k at the time, about $12,000 so I could roll it into an IRA that I opened. He told her not to touch it otherwise. I never got the money. YOUR LAWYER SHOULD HAVE PREPARED A QDRO, OR DIRECTED YOU TO SOMEONE WHO PREPARES QDROS, THAT WOULD HAVE ROLLED OVER YOUR $12,000 FROM HER 401(K) TO YOUR IRA. THAT SHOULD HAVE BEEN DONE IMMEDIATELY AFTER THE DIVORCE, NOT 11 YEARS LATER. IF SHE HAS LEFT HER EMPLOYMENT WHERE THE 401(K) ACCRUED, AND IF SHE REMOVED ALL OF THE 401(K) FUNDS, THEN A QDRO IS NOT GOING TO HELP YOU. YOU NEED TO SUE AND ASK THE COURT TO ENTER A JUDGMENT AGAINST HER FOR THE $12,000 DUE AND FIND ANOTHER WAY TO COLLECT IT. SHE STILL OWES YOU THE MONEY; YOU WILL HAVE TO FIND ANOTHER WAY TO COLLECT IT. ASK FOR LEGAL FEES AS WELL. YOU SHOULD ALSO ASK TO GAINS AND LOSSES AND INVESTMENT EXPERIENCE FROM THE DATE OF DIVORCE UP TO DATE, BUT THAT MAY BE DIFFICULT TO COMPUTE WITH HIRING AN EXPERT WITNESS. The judge required both of us to have a QDRO completed within 30 days following divorce. Neither of our attorneys followed through with our individual QDROs. Fast forward to now. I am retired and can’t collect my pension. I just had my QDRO done, but my ex refuses to do one. WHY WOULD ANYBODY DO A QDRO IF THE 401(K) FUNDS ARE GONE? She also says she recently took out whatever money was in that 401k, so the balance is zero. To top it off, the attorney who just did my QDRO says she is entitled to 25% of my entire career of 28 years plus $43,000 of the DROP ( which I paid into from 2017-present). Is this accurate? How can this be fair? Is she in violation of the court order if she doesn’t get a QDRO done? THE AMOUNT OF HER SHARE OF YOUR PENSION IS CUSTOMARILY COMPUTED BY TAKING 50% OF YOUR RETIREMENT BENEFIT EACH MONTH AND MULTIPLYING IT BY A FRACTION, THE NUMERATOR OF WHICH IS THE NUMBER OF MONTHS DURING THE MARRIAGE THAT YOU ACCRUED CREDITABLE SERVICE TOWARD RETIREMENT, AND THE DENOMINATOR OF WHICH IS THE TOTAL NUMBER OF MONTHS OF CREDITABLE SERVICE ACCRUED AT THE TIME OF RETIREMENT (THE "COVERTURE FRACTION"). UNLESS THE JUDGE MISSTATED THE FORMULA TO COMPUTE HER SHARE, SHE IS NOT ENTITLED TO A SHARE OF THE FULL 28 YEARS OF SERVICE. OFTEN THE COURT WILL SAY THAT SHE IS ENTITLED TO 50% OF THE "MARITAL PORTION" OF YOUR RETIREMENT. THAT LANGUAGE MEANS THE FORMULA I SET FORTH ABOVE. SO YOU NEED TO LOOK CLOSELY AT THE EXACT LANGUAGE USED BY THE JUDGE. AS FAR AS THE DROP IS CONCERNED, IN MARYLAND WHERE I PRACTICE THE DROP BENEFITS ARE CONSIDERED PART OF A POLICE RETIREMENT EVEN THOUGH NOT SPECIFICALLY ADDRESSED BY THE PARTIES OR BY THE COURT. AND IN MARYLAND IF THE COURT DID NOT ORDER THAT SHE RECEIVE SURVIVOR ANNUITY BENEFITS, SHE DOESN'T GET THEM....PERIOD. NOTE THAT MANY PLANS FOR POLICE, FIREFIGHTERS AND CORRECTIONAL OFFICERS DO NOT PROVIDE SURVIVOR ANNUITY BENEFITS FOR FORMER SPOUSES. YOU ARE GOING TO NEED A LAWYER IN PENNSYLVANIA TO RESEARCH THESE ISSUES. NORMALLY POLICE PLAN ARE NOT UNDER ERISA, THE FEDERAL LAW COVERING PRIVATE CORPORATIONS, NOR ARE THEY STATE PLANS UNLESS YOU WERE A STATE TROOPER. THEY ARE MOSTLY COUNTY PLANS AND EACH ONE MAY BE DIFFERENT. WHERE DO YOU LIVE. PERHAPS SOMEONE ON THIS BLOG CAN REFER YOU TO AN ATTORNEY. DAVID

In what state was the divorce granted? How is it that you and Fidelity are even talking about the entry of a QDRO? Certainly you did not ask for the entry of a QDRO. How did the conversation with Fidelity get started? Is Fidelity the third party administrator with respect to your pension? Did you apply for your pension and they will not commence benefits to you because they want to see a QDRO address the pension plan? How did they know there was a divorce? Has the 401(k) already been divided? Do they want a QDRO dealing with the 401(k), or the pension, or both? Are you trying to give your ex a share of your pension? (Phone number deleted)