fmsinc

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

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

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

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

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

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

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

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

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

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

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

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

In Advisory Opinion No. 1999-13A , the DOL, EBSA Division of Fiduciary Interpretation Office of Regulations and Interpretations. The full Opinion can be found at https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/1999-13a. The first line of the Opinion states "This is in response to your request on behalf of the UAL Corporation (UAL) and United Air Lines, Inc. (United) for an advisory opinion. Specifically, you ask how a plan administrator should treat domestic relations orders the plan administrator has reason to believe are "sham" or "questionable" in nature. Later in the Opinion it says: "You have asked for an advisory opinion as to whether, and if so when, a plan administrator may investigate or question a domestic relations order submitted for review to determine whether it is a valid “domestic relations order” under State law for purposes of section 206(d)(3)(B) of ERISA." The response was as follows: "When a pension plan receives an order requiring that all or a part of the benefits payable with respect to a participant be paid to an alternate payee, the plan administrator must determine that the judgment, decree or order is a “domestic relations order” within the meaning of section 206(d)(3)(B)(ii) of ERISA — i.e., that it relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child or other dependent of the participant and that it is made pursuant to State domestic relations law by a State authority with jurisdiction over such matters. Additionally, the plan administrator must determine that the order is qualified under the requirements of section 206(d)(3) of ERISA. It is the view of the Department that the plan administrator is not required by section 206(d)(3) or any other provision of Title I to review the correctness of a determination by a competent State authority pursuant to State domestic relations law that the parties are entitled to a judgment of divorce. See Advisory Opinion 92-17A (Aug. 21, 1992). Nevertheless, a plan administrator who has received a document purporting to be a domestic relations order must carry out his or her responsibilities under section 206(d)(3) in a manner consistent with the general fiduciary duties in part 4 of title I of ERISA." "For example, if the plan administrator has received evidence calling into question the validity of an order relating to marital property rights under State domestic relations law, the plan administrator is not free to ignore that information. Information indicating that an order was fraudulently obtained calls into question whether the order was issued pursuant to State domestic relations law, and therefore whether the order is a “domestic relations order” under section 206(d)(3)(C). When made aware of such evidence, the administrator must take reasonable steps to determine its credibility. If the administrator determines that the evidence is credible, the administrator must decide how best to resolve the question of the validity of the order without inappropriately spending plan assets or inappropriately involving the plan in the State domestic relations proceeding. The appropriate course of action will depend on the actual facts and circumstances of the particular case and may vary depending on the fiduciary’s exercise of discretion. However, in these circumstances, we note that appropriate action could include relaying the evidence of invalidity to the State court or agency that issued the order and informing the court or agency that its resolution of the matter may affect the administrator’s determination of whether the order is a QDRO under ERISA.5(5) The plan administrator’s ultimate treatment of the order could then be guided by the State court or agency’s response as to the validity of the order under State law. If, however, the administrator is unable to obtain a response from the court or agency within a reasonable time, the administrator may not independently determine that the order is not valid under State law and therefore is not a “domestic relations order” under section 206(d)(3)(C), but should rather proceed with the determination of whether the order is a QDRO." I concerns me that not all jurisdictions that have laws relating to QDROs are "States", e.g. the Virgin Islands, Puerto Rico, Guam, the Northern Marianas, American Samoa. Perhaps there is a regulation out there saying that "state" includes "territories" A wrinkle on this issue is the case of Brown v. Continental Airlines, Inc., 647 F. 3d 221 (5th Cir., 2011) - https://scholar.google.com/scholar_case?case=4019345202025914766&q=brown+v.+continental+airlines&hl=en&as_sdt=20000003 Continental alleged that a number of pilots and their spouses obtained "sham" divorces for the purpose of obtaining lump sum pension distributions from the Continental Pilots Retirement Plan that they otherwise could not have received without the pilots' separating from their employment with Continental. The pilots were allegedly acting out of concern about the financial stability of Continental and the fear that the Plan might be turned over to the PBGC and that their retirement benefits would be substantially reduced (exactly what did happen). By getting divorced, the pilots were able to obtain QDROs from state courts that assigned 100% (or, in one instance, 90%) of the pilots' pension benefits to their respective former spouses. The Plan provides that, upon divorce, if the pilot is at least 50 years old (as all the pilots in this case were), a former spouse to whom pension benefits are assigned can elect to receive those benefits even though the pilot continues to work at Continental. (Think “separate interest” annuity allocation.) The former spouses presented the QDROs to Continental and requested payment of lump-sum pension benefits. After the former spouses received the benefits, the couples remarried. Continental sought to obtain restitution under ERISA Section 502(a)(3). The Court of Appeals noted that ERISA § 206(d)(3) limits the QDRO qualification determination to whether the state court decree calls for benefit payments outside the terms of the Plan. It rejected Continental’s expanded reading of §206, concluding that plan administrators may not question the good faith intent of Participants submitting QDROs for qualification. But note that DoL EBSA Advisory Opinion 13A mentioned above, dealing with "sham" divorces, was not cited in Continental. The reason I suspect is because there is nothing in the law of most states that prevents the parties from obtaining a divorce if they have the grounds for divorce set forth in the applicable state Code, even though there may be an ulterior motive that may involve, for example, estate or tax planning, or, as in Continental, dealing with pension benefits that may be negatively impacted by the impending Bankruptcy of the Plan Sponsor. The reciprocal is also true. Many people remain married for a period of time in order to, for example, give the non-Military party the time necessary to obtain access to lifetime Military based health insurance under the 20/20/20 rule, or give the non-employee's spouse who is in the US pursuant to the employee's spouse's G-4 visa time to obtain a green card (especially important if they have children). I have been preparing QDROs since 1986, I have never failed to insert the name of the applicable state, and in most cases the actual statutory reference. Another thought occurs to me. In more than a few cases the parties may divorce in one state and one or both may move to another state. A certified copy of the divorce decree will be enrolled in the general jurisdiction court in the new state and the QDRO will issue from that state, but under the law of the state where the divorce was granted. Sometimes you are moving from a "marital property" state to a "community property" state where the law is different. The laws with respect to the allocation of pension and retirement benefits can vary from state to state. Under the law of some states if you fail to mention survivor annuity benefits in the Agreement or the court doesn't mention them in the divorce decree, the alternate payee with not receive them. Some states hold that a general agreement or court order to transfer "retirement benefits" includes both retirement and survivor annuity benefits. Some states hold that all disability retirement benefit (except Military) are marital property and can be divided between the parties. Other states hold that disability benefits are not marital property. Some states recognize common law marriages and others do not. In some states the court only has jurisdiction to enter a QDRO at the time of an annulment or absolute divorce (or thereafter). In other states a QDRO can be entered before the annulment or divorce decree is entered. David

The IRS website does have a page on this matter: https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-qualified-joint-and-survivor-annuity and see https://www.law.cornell.edu/cfr/text/26/1.401(a)-20 - Q.31. I have my doubts that a QDRO could provide for a QJSA for anyone other than a former spouse. Aside from the language of 29 U.S.C § 1055, I feel comfortable in suggesting that most state statutes only afford the court jurisdiction to transfer pension and retirement benefits from one party to the other in connection with the entry of an absolute divorce or an annulment. So if you are dealing with a divorce situation and a QDRO, you need to take a look at the state statute. 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." DSG

There are two issued. First is whether the trail court will enter a QDRO 12 years after the entry of the divorce? Second is whether or not, even if the QDRO can be entered, can benefits be lost due to the delay? There are some states that impose a statute of limitation on how long you have to submit a QDRO after divorce. There are some states that adhere to the doctrine of laches mentioned by by QDROPhile where there is a delay by one party that causes hardship to the other party. There are some states like my home state of Maryland that treat a QDRO as an enforcement tool, like a garnishment or an attachment, and there is no limit to when a QDRO can be entered. There are some states where the ability to file a late QDRO depends on whether or not the Judgment of Divorce reserved jurisdiction for the entry of QDROs. Aside from all of that, if the Plan involved falls under the Federal Law ERISA that covers most private company plans, and if you and your husband married and he then retired, then notwithstanding the entry of a QDRO, the survivor annuity benefits will not be enforceable since you, the new wife, will be entitled to such benefit. See See the 1997 decision of the US Court of Appeals, 4th Circuit, in Hopkins v. AT&T Global Information Solutions at http://scholar.google.com/scholar_case?case=9954117838131396049&q=hopkins+at%26T+global&hl=en&as_sdt=2,9 followed by the 5th Circuit in 1999 Rivers v. Central and South West Corporation at http://scholar.google.com/scholar_case?case=2296953953561556363&q=rivers+central+and+south+west&hl=en&as_sdt=2,9: Other cases following Hopkins are collected at: https://scholar.google.com/scholar?start=0&q="Hopkins+v.+AT%26T"&hl=en&as_sdt=20000006 See also Vanderkam v. PBGC, 943 F. Supp.2d, 130 (2013) setting forth a thorough discussion of this issue. And the 2015 case of Dahl v. Aerospace Employees' Retirement Plan, No. 1:15cv611 (JCC/IDD), United States District Court, E.D. Virginia, Alexandria Division. Depending on the nature of the Plan the former spouse may have lost survivor annuity benefits by reason of remarriage prior to a certain age, often 55 as in the Military and FERS and CSRS . In some plans, like the Military, the failure of a Former Spouse to file certain paperwork - DD-2656-10 - within 12 months after the divorce will result in a loss of survivor annuity benefits. Some plans may have failed and been taken over by PBGC where the amount of benefits is will be reduced. In come cases, if the Plan Administrator (OPM for example) knows about the Judgment of Divorce awarding pension benefits, even through no Order has been filed, the Plan will not start to Pay pension benefits to the Employee until the matter is resolved. The divorce is often communicated to the Employer as the reason for the Employee cancelling his health insurance coverage. We have approximately 175,000 pension and retirement plans in the USA, 163,000 are under ERISA and another 12,000 or so are under various Federal, State, County, City Municipal and International plans. They don't all have uniform rules and procedures. Federal law normally preempts state law, but not always. So to give you a more accurate answer, your lawyer will need to know the exact plan involved and have a detailed timeline. BTW, the ex-wife's lawyer is guilty of malpractice almost everywhere. Good luck.

You asked: "Can a participant claim that if the payment was made quicker, he would have received a higher lump sum?" Answer: Only if he will agree that if the market increased during the time frame in quetion he sould have given back the higher higher lump sum.

I don't understand. In what way did he "elect" a QJSA. I assume this did not happen in the context of a divorce. If he was married at the time of his retirement such an election would have been mandatory. Doesn't this explain it all? https://www.irs.gov/irm/part4/irm_04-072-009 Even in the context of a divorce, see Hopkins v. AT & T Global Information Solutions Company, 105 F.3d 153 (4th Cir. 1997) at - https://scholar.google.com/scholar_case?case=9954117838131396049&q=hopkins+at%26T+global&hl=en&as_sdt=2,9 where the Participant's surviving spouse benefits vested in his then current spouse immediately on his retirement and was not available to a former spouse who failed to obtain a QDRO prior to such retirement giving her such survivor benefits pursuant to an award of such benefits at the time of her divorce from the Participant. And in what sort of Plan is a lump sum payout the alternative to a QJSA? What am I missing?

The Plan Administrator is most likely fully aware of the Participant's true address. I agree that the Participant can use any mailing address she chooses, most likely a "care of" address. So you can put the "care of" mailing address in the Addendum to the QDRO that will only go to the Plan with the certified copy of the QDRO. The problem is that the Plan may send its determination letter to both parties at their real home addresses. So the Participant has to contact the Plan and change her mailing address before that happens. As far as signing the QDRO is concerned, nothing in ERISA § 206(d)(3)(C)(i) requires anyone to sign it. This is confirmed in the attached DOL re QDROs.pdf See question 1.2 where the answer is, inter alia, "There is no requirement that both parties to a marital proceeding sign or otherwise endorse or approve an order." Note: You can find Mattingly v. Hoge, 260 F. App’x 776 (6th Cir. Jan. 8, 2008) at https://casetext.com/case/mattingly-v-hoge The trial court found that the Divorce Judgment contained all of the information needed for it to be a QDRO. BUT that's FEDERAL law re: whether the DRO is a QDRO. A state may require a QDRO to be signed off by both parties or their attorneys. This is were the Maryland case of Rohrbeck v. Rohrbeck comes in handy in providing that a QDRO is nothing more than an tool to enforce the court's rulings, like a garnishment or an attachment. Does anyone sign a garnishment or attachment. In Maryland it's a matter of courtesy to send the other attorney on endorse form, not content. https://scholar.google.com/scholar_case?case=6821439692749566017&q=rohrbeck+v.+rohrbeck&hl=en&as_sdt=4,21

Read these cases: See Hurwitz v. Sher, 982 F.2d 778 (US Ct. of Appeals, 2nd Cir.1992) at http://scholar.google.com/scholar_case?case=1493388808681077082&q=waiver+erisa+benefits+%2Bantenuptial+marriage&hl=en&as_sdt=20000006 and Edmonds v. Edmonds, 184 Misc.2d 928?, 710 N.Y.S.2d 765 (2000) at - http://scholar.google.com/scholar_case?case=502938691408240494&q=waiver+erisa+benefits+%2Bantenuptial+marriage&hl=en&as_sdt=20000006 and from the US 4th Circuit Court of Appeals, Hagwood v. Newton, 282 F.3d 285 (2002) at - http://scholar.google.com/scholar_case?case=17880757291914522922&q=waiver+erisa+benefits+%2Bantenuptial+marriage&hl=en&as_sdt=20000006 See also 29 USC 1055 et seq., and Critchell v. Critchell, 746 A.2d 282 (2000),a DC case, at: http://scholar.google.com/scholar_case?case=13503809513407550709&q=waiver+retirement+pension+benefits+antenuptial+agreement+ante-nuptial+prenuptial&hl=en&as_sdt=20000006 In 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." In Brown v. Continental Airlines, Inc., 647 F. 3d 221 (5th Cir., 2011) - https://scholar.google.com/scholar_case?case=4019345202025914766&q=brown+v.+continental+airlines&hl=en&as_sdt=20000003, Continental alleged that a number of pilots and their spouses obtained "sham" divorces for the purpose of obtaining lump sum pension distributions from the Continental Pilots Retirement Plan that they otherwise could not have received without the pilots' separating from their employment with Continental. The pilots were allegedly acting out of concern about the financial stability of Continental and the fear that the Plan might be turned over to the PBGC and that their retirement benefits would be substantially reduced (exactly what did happen). By getting divorced, the pilots were able to obtain QDROs from state courts that assigned 100% (or, in one instance, 90%) of the pilots' pension benefits to their respective former spouses. The Plan provides that, upon divorce, if the pilot is at least 50 years old (as all the pilots in this case were), a former spouse to whom pension benefits are assigned can elect to receive those benefits even though the pilot continues to work at Continental. (Think "separate interest" annuity allocation.) The former spouses presented the QDROs to Continental and requested payment of lump-sum pension benefits. After the former spouses received the benefits, the couples remarried. Continental sought to obtain restitution under ERISA Section 502(a)(3). The Court of Appeals noted that ERISA § 206(d)(3) limits the QDRO qualification determination to whether the state court decree calls for benefit payments outside the terms of the Plan. It rejected Continental's expanded reading of § 206, concluding that plan administrators may not question the good faith intent of Participants submitting QDROs for qualification. But note that DoL EBSA Advisory Opinion 13A mentioned above, dealing with "sham" divorces, was not cited in Continental. The reason I suspect is because there is nothing in the law of most states that prevents the parties from obtaining a divorce if they have the grounds for divorce set forth in the applicable state Code, even though there may be an ulterior motive that may involve, for example, estate or tax planning, or, as in Continental, dealing with pension benefits that may be negatively impacted by the impending Bankruptcy of the Plan Sponsor. The reciprocal is also true. Many people remain married for a period of time in order to, for example, give the non-Military party the time necessary to obtain access to lifetime Military based health insurance under the 20/20/20 rule, or give the non-employee's spouse who is in the US pursuant to the employee's spouse's G-4 visa time to obtain a green card (especially important if they have children). In all events the Plan Administrator must follow the instructions set forth in the QDRO submitted. It is up to the parties to fight battles dealing with waiver in their own state courts. All of my Antenuptial Agreements come with an additional signature page designed to be executed after the marriage takes place. If a party doesn't do so, he/she may be subjected to injunctive relief or a very quick suit for divorce. How about a letter of thanks to Congress for once again creating a trap for the parties and their attorneys\.

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