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

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

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

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

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

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

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

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

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

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

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

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

In my world if a Plan has actual notice of an existing QDRO, they will: (i) put a hold on the account, (ii) advise the Participant that they will not put him in pay status unless they receive a certified copy of the QDRO, or an Order vacating the Order, and, (iii) in some case file as intervenor in the case where the QDRO is issued. Attorney for the Plan do not want to risk being required to make double payments. In Advisory Opinion No. 1999-13A , https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/1999-13a the IRS Division of Fiduciary Interpretation Office of Regulations and Interpretations was asked: "You have asked for an advisory opinion as to whether, and if so when, a plan administrator may investigate or question a domestic relations order submitted for review to determine whether it is a valid “domestic relations order” under State law for purposes of section 206(d)(3)(B) of ERISA." The response was as follows: "When a pension plan receives an order requiring that all or a part of the benefits payable with respect to a participant be paid to an alternate payee, the plan administrator must determine that the judgment, decree or order is a “domestic relations order” within the meaning of section 206(d)(3)(B)(ii) of ERISA — i.e., that it relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child or other dependent of the participant and that it is made pursuant to State domestic relations law by a State authority with jurisdiction over such matters. Additionally, the plan administrator must determine that the order is qualified under the requirements of section 206(d)(3) of ERISA. It is the view of the Department that the plan administrator is not required by section 206(d)(3) or any other provision of Title I to review the correctness of a determination by a competent State authority pursuant to State domestic relations law that the parties are entitled to a judgment of divorce. See Advisory Opinion 92-17A (Aug. 21, 1992). Nevertheless, a plan administrator who has received a document purporting to be a domestic relations order must carry out his or her responsibilities under section 206(d)(3) in a manner consistent with the general fiduciary duties in part 4 of title I of ERISA." "For example, if the plan administrator has received evidence calling into question the validity of an order relating to marital property rights under State domestic relations law, the plan administrator is not free to ignore that information. Information indicating that an order was fraudulently obtained calls into question whether the order was issued pursuant to State domestic relations law, and therefore whether the order is a “domestic relations order” under section 206(d)(3)(C). When made aware of such evidence, the administrator must take reasonable steps to determine its credibility. If the administrator determines that the evidence is credible, the administrator must decide how best to resolve the question of the validity of the order without inappropriately spending plan assets or inappropriately involving the plan in the State domestic relations proceeding. The appropriate course of action will depend on the actual facts and circumstances of the particular case and may vary depending on the fiduciary’s exercise of discretion. However, in these circumstances, we note that appropriate action could include relaying the evidence of invalidity to the State court or agency that issued the order and informing the court or agency that its resolution of the matter may affect the administrator’s determination of whether the order is a QDRO under ERISA.5(5) The plan administrator’s ultimate treatment of the order could then be guided by the State court or agency’s response as to the validity of the order under State law. If, however, the administrator is unable to obtain a response from the court or agency within a reasonable time, the administrator may not independently determine that the order is not valid under State law and therefore is not a “domestic relations order” under section 206(d)(3)(C), but should rather proceed with the determination of whether the order is a QDRO." So there are times when the Plan Administration should get involved, and one of these must be if they have actual knowledge of the existence of a QDRO. The PA has a fiduciary duty toward both the Participant and the Alternate Payee. See ALMA PARSONS v. BOARD OF TRUSTEES OF THE BOILERMAKER-BLACKSMITH NATIONAL PENSION TRUST, Civil Action No. 2:20-cv-00132, United States District Court, S.D. West Virginia, Charleston Division (April 20, 2020) setting forth the fiduciary duty owed by the Plan as a fiduciary vis a vis the Alternate Payee. You can find this case at https://scholar.google.com/scholar_case?case=12166270204191846086&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:14880692104701005079:AAGBfm2qi1_JaXLJvydb4f3quYTnTlLkbA Now go the the attached from DOL. DOL re QDROs.pdf Go to page 55, part of Appendix A and start reading at: "You have asked for an advisory opinion as to whether, and if so when, a plan administrator may investigate or question a domestic relations order submitted for review to determine whether it is a valid “domestic relations order” under State law for purposes of section 206(d)(3)(B) of ERISA." Lastly, many of the Plans with whom I deal have a form, an application, that a prospective retiree will submit in anticipation of retirement. The form will specifically ask is there is a pending QDRO or a claim by a former spouse for benefits under the Plan. You need to check for that. As Dirty Harry used to say, "Do you feel lucky?" I don't know a Plan Administrator that wants to find himself in the middle of an expensive lawsuit in Federal Court. Better to do nothing and let the parties and the state court resolve it. BTW, I have never seen a case where the remarriage of the parties, in and of itself, without more, resulted in a waiver of benefits from the prior divorce. Do you want to be in the middle of that issue? David

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

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

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

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

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

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

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