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David is correct, of course. Unfortunately it is common to call the document submitted to the Court a QDRO even through it is not yet "qualified" by the Plan. In the Federal arena many practitioners title their FERS and CSRS Orders as a "Court Order Acceptable for Processing" even before it has not been accepted by OPM. The language in this area is complicated enough without having the explain this distinction without a meaningful difference to lay clients. Bottom line, the "Q" in QDRO means "qualified", and "qualified" means "approved" by the Plan and not by the Judge or by the parties or anyone else.

See my responses in ALL CAPS BOLDED: YOU SAID IT'S A TEAMSTERS PLAN, BUT THERE ARE MANY SUCH PLANS: TEAMSTER AFFILIATES PENSION PLAN TEAMSTERS - FOOD INDUSTRY SUPPLEMENTAL INCOME SECURITY PLAN TEAMSTERS 401K PLAN TEAMSTERS ALLIED PENSION FUND OF MARYLAND TEAMSTERS CONSTRUCTION INDUSTRY & MISC PENSION FUND TEAMSTERS EMPLOYERS LOCAL 945 PENSION FUND TEAMSTERS INDUSTRIAL EMPLOYEES PENSION FUND TEAMSTERS JOINT COUNCIL 41 SERVERANCE PLAN TEAMSTERS JOINT COUNCIL NO 10 ANNUITY PLAN TEAMSTERS JOINT COUNCIL NO 16 PENSION FUND TEAMSTERS JOINT COUNCIL NO 53 RETIREMENT TRUST TEAMSTERS JOINT COUNCIL NO 73 PENSION & TRUST FUND TEAMSTERS JOINT COUNCIL NO 83 OF VIRGINIA PENSION FUND TEAMSTERS LOCAL 11 PENSION FUND TEAMSTERS LOCAL 142 PENSION TRUST FUND TEAMSTERS LOCAL 179 401K SAVINGS & RETIREMENT PLAN TEAMSTERS LOCAL 211 PENSION FUND TEAMSTERS LOCAL 237 SAVINGS AND INVESTMENT PLAN AND TRUST TEAMSTERS LOCAL 237 WELFARE FUND PENSION PLAN TEAMSTERS LOCAL 264 VAN DRIVERS PENSION FUND TEAMSTERS LOCAL 277 PENSION FUND TEAMSTERS LOCAL 284 IBTC & HA RETIREMENT PLAN TEAMSTERS LOCAL 301 PENSION PLAN TEAMSTERS LOCAL 344 OFFICERS BUSINESS AGENTS & EMPLOYEES SEVERANCE PAY PLAN TEAMSTERS LOCAL 346 SAVINGS & 401K PLAN TEAMSTERS LOCAL 381 - VANDENBERG AFB 401K PLAN TEAMSTERS LOCAL 408 ANNUITY FUND TEAMSTERS LOCAL 408 PENSION PLAN TEAMSTERS LOCAL 418 PENSION PLAN TEAMSTERS LOCAL 445 - CONSTRUCTION DIVISION ANNUITY PLAN TEAMSTERS LOCAL 445 CONSTRUCTION DIVISION PENSION FUND TEAMSTERS LOCAL 456 ANNUITY FUND TEAMSTERS LOCAL 469 PENSION PLAN TEAMSTERS LOCAL 575 PENSION FUND TEAMSTERS LOCAL 617 PENSION FUND TEAMSTERS LOCAL 639- EMPLOYERS PENSION TRUST TEAMSTERS LOCAL 641 PENSION FUND TEAMSTERS LOCAL 676 AND EMPLOYERS ANNUITY FUND TEAMSTERS LOCAL 786 VENDING EMPLOYEES PENSION PLAN TEAMSTERS LOCAL 814 ANNUITY FUND TEAMSTERS LOCAL 814 PENSION FUND TEAMSTERS LOCAL 830 LAUNDRY DIV & THE PHILA TEXTILE MAINTENANCE & OTHER INDUSTRIES PEN PL TEAMSTERS LOCAL 830 RETIREMENT SAVINGS PLAN TEAMSTERS LOCAL 878 - FLEXSTEEL ASSOCIATES 401K SAVINGS PLAN TEAMSTERS LOCAL 929 SUPPLEMENTAL INCOME PLAN TEAMSTERS LOCAL 945 HEALTH & WELFARE WORKERS SALARY SAVINGS PLAN TEAMSTERS LOCAL NO 348 401K RETIREMENT PLAN TEAMSTERS LOCAL NO 35 PENSION PLAN TEAMSTERS LOCAL NO 377 H&W FUND EMPLOYEE BENEFIT PLAN AND TRUST TEAMSTERS LOCAL NO 469 ANNUITY FUND TEAMSTERS LOCAL UNION 299 MULTI-EMPLOYER 401K PLAN TEAMSTERS LOCAL UNION 500- SEVERANCE TRUST FUND TEAMSTERS LOCAL UNION 777 SEVERANCE AND RETIREMENT TEAMSTERS LOCAL UNION NO 134 PENSION AND DEATH BENEFIT PLAN TEAMSTERS LOCAL UNION NO 572 RETIREMENT BENEFIT PLAN TEAMSTERS LOCAL UNION NO 716 PENSION PLAN TEAMSTERS LOCAL UNION NO 727 PENSION PLAN TEAMSTERS MANAGED ANNUITY TRUST FUND TEAMSTERS NEGOTIATED PENSION PLAN TEAMSTERS PENSION TRUST FUND OF PHILADELPHIA & VICINITY TEAMSTERS UNION LOCAL 293 PENSION PLAN TEAMSTERS UNION LOCAL 331 SEVERANCE TRUST FUND TEAMSTERS UNION LOCAL 970 REVISED PENSION PLAN - METAL MATIC INC TEAMSTERS UNION LOCAL 970 REVISED PENSION PLAN - SICO AMERICA TEAMSTERS UNION LOCAL NO 52 PENSION FUND TEAMSTERS UNION LOCAL NO 73 PENSION PLAN TEAMSTERS-FOOD PROCESSORS MONEY PURCHASE PENSION TRUST TEAMSTERS-NATIONAL 401K SAVINGS PLAN TEAMSTERS/UPS NATIONAL 401K TAX DEFERRED SAVINGS PLAN I am frustrated at the fact that the QDRO is prequalified by the plan to be considered qualified once signed by a Judge. WRONG. "QUALIFIED" IS A TERM OF ART THAT MEANS THAT THE QDRO SIGNED BY THE JUDGE IS APPROVED BY THE PLAN ADMINISTRTOR. The JAD made no mention of survivorship benefits , however I suppose that because 7 years has passed since the divorce , the qdro attorney assumes that survivorship “should be” included. IF THE JAD DID NOT MENTION SURVIVOR BENEFITS IT IS ARGUABLE THAT THERE WAS NO INTENTION TO GRANT SURVIVOR BENEFITS. THE PASSAGE OF TIME WILL NOT CHANGE THAT. The spouse pension section reads similar to this: THE SPOUSE PENSION SECTION OF WHAT DOCUMENT? If alternate payee survives participant , the alternate payee shall be entitled to the alternate payees shared interest in the spouse pension. Payment of the spouse pension will end with the last payment before the current spouses death. THIS RELATES TO A SHARING OF THE RETIREMENT ANNUITY PAYABLE TO THE PARTICIPANT DURING HIS LIFETIME. IT DOES NOT RELATE TO THE SURVIVOR ANNUITY PAYABLE TO THE ALTERNATE PAYEE AFTER THE DEATH OF THE PARTICIPANT. How is this ok ?? I feel betrayed by the plan as well as the Qdro attorney. Am I misinterpreting this ? THE PLAN IS REQUIRED TO FOLLOW THE INSTRUCTIONS SET FORTH IN THE QDRO, NOTHING MORE. A QDRO CAN DEAL WITH THE ALLOCATION OF THE RETIREMENT ANNUITY, AND WITH SURVIVOR BENEFITS PAYABLE IF THE PARTICIPANT DIES BEFORE RETIREMENT, AND WITH SURVIVOR BENEFITS PAYABLE IF THE PARTICIPANT DIES AFTER RETIREMENT. THERE IS NO REQUIREMENT THAT IT DEAL WITH ALL THREE. IF THE JAD DIDN'T MENTION SURVIVOR ANNUITY BENEFITS, IT'S NOT THE JOB OF THE PLAN ADMINISTRATOR TO PROVIDE SUCH BENEFITS. Why would a qualified qdro attorney write this , and why would plan admin be ok with it? I’m I missing something? THE PROBLEM GOES BACK TO THE LAWYER YOU HAD AT THE TIME OF THE DIVORCE. IT SOUNDS LIKE YOU DIDN'T HAVE A WRITTEN MARITAL SETTLEMENT AGREEMENT AND THAT THE JUDGE MADE THE DECISION ABOUT WHETHER OR NOT TO WERE TO RECEIVE A SURVIVOR ANNUITY AFTER THE DEATH OF THE PARTICIPANT. YOUR LAWYER SHOULD HAVE ASKED FOR THAT AT THE TIME OF THE DIVORCE HEARING. IF YOU DIDN'T HAVE A LAWYER, THEN YOU ARE THE ONE AT FAULT. I HOPE YOU HAVE A LAWYER NOW. THIS HAS NOTHING TO DO WITH THE ATTORNEY WHO PREPARED THE QDRO. THE QDRO SHOULD HAVE BEEN PREPARED AT THE TIME OF THE DIVORCE HEARING AND SIGNED BY THE JUDGE AT THE SAME TIME THE JAD WAS SIGNED AND IMMEDIATELY SENT TO THE PLAN ADMINISTRATOR FOR APPROVAL. THE LANGUAGE YOU QUOTE MAKES IT CLEAR THAT THE NEW QDRO BEING PREPARED DOES NOT INCLUDE SURVIVOR BENEFITS. MY PREVIOUS MEMO WAS INTENDED TO MAKE IT CLEAR THAT THE PARTICIPANT'S NEW SPOUSE IS LIKELY TO BE ENTITLED TO THE SURVIVOR BENEFIT AND THAT YOU CANNOT NOW RECEIVE SUCH BENEFITS UNDER ANY CIRCUMSTANCES. YOU CANNOT FIND THE ANSWERS YOU WANT ON THIS BLOG. YOU NEED A COMPETENT ATTORNEY IN YOUR JURISDICTION WHO SPECIALIZES IN QDRO MATTERS.

The question is what is the language of the underlying written Agreement, or if none, the language of the Judgment of Absolute Divorce. In most jurisdictions if the Agreement or the JAD don't award a survivor annuity, the Alternate Payee cannot get it. In other words, the DRO must track the language of the Agreement or the JAD. It is an enforcement tool, like an attachment or a garnishment, designed to enforce the terms of the Agreement that is normally incorporated into the JAD. On top of everything else, you may have statute of limitation or laches (sleeping on one's rights) issues, or the request for the new QDRO may be outside of the applicable Court Rule that requires a motion to modify or revise a previous court order to be filed within a limited period of time, 30, 60, or 90 days. Unless this is a FERS or CSRS Federal Government Plan, (you didn't tell me what sort of plan it was) I don't know of any plan that will agree to pay a shared survivor annuity. The cost of a survivor annuity is the actuarial reduction in the retirement annuity to fund payments of benefits over 2 lifetimes, the Participant's and the Alternate Payee's. The Plan is not required to make payments over 3 lifetimes. So when you ask if it's legal, I am not sure what you mean. If you mean is it legal for the Plan to pay out a shared annuity, the answer is likely no because it is not required by ERISA and the Plan documents don't permit it - so it's not legal and it's not possible. I have never heard of a "shared survivor annuity" in a allocation in a QDRO except under FERS or CSRS, so the QDRO being prepared will not be accepted by the Plan. If you are asking whether or not the current spouse widow can voluntarily agree to pay a share of her survivor annuity to the former spouse, certainly that is "legal", but the current spouse widow will pay income taxes on the amount she receives and that will have to be addressed in computing the amount paid to the former spouse. If the current spouse widow agrees to this you should nominate her for sainthood. In all events the payments would stop on the death of the current spouse widow. And what would be the consideration for such an Agreement?? If the Participant remarried and retired before the QDRO was approved by the Plan, and if it's an ERISA plan, then the new spouse becomes vested in the survivor annuity and the former spouse cannot get it, PERIOD, end of story. There is plenty of law on this. See, e.g., 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: The new QDRO will be effective to provide the Alternate payee with her share of the retirement annuity, but if payments have already been paid out to the Participant by the Plan, the Play will not make retroactive payments to the Alternate Payee, and any arrears will have to be recovered by a separate lawsuit. But if your state law does not provide for the allocation of disability retirement benefits as marital property, then the amounts that you say are being held by the Plan should be paid to the Participant to the extent that they became due prior to age 65 or whatever age. [I hope you are talking about disability retirement benefits and not workers' comp benefits.] Note that there are cases that provide that even though state law may not provide that certain benefit are not marital and cannot be the subject of a QDRO, nevertheless the parties can agree to share such benefits, but such sharing will have to be implemented in another way. Good luck.

You are combining and conflating multiple issues. In one sentence you are presumably talking about the Participant's retirement annuity, and in the next you are talking about the Participant's survivor annuity. It is unclear whether you are referring to an ERISA qualified Plan or a state or local Plan of some sort. At one point you are referring to an "Alternate Payee" which by definition relates to a former spouse who can be awarded a share of a retirement and/or survivor annuity via a QDRO, and then you are talking about a current spouse who cannot be awarded a share of a retirement annuity but can be named as the recipient of a survivor annuity following the death of the Participant. It is unclear if the former spouse was awarded the survivor annuity in the QDRO and if the QDRO was approved by the Plan before or after the Participant: (i) remarried and named his new spouse as the beneficiary of the survivor annuity; and (ii) retired. If it not even clear if the new QDRO has been approved by the Plan. You seem to suggest that the QDRO has not yet been prepared, let alone approved. And you refer to the QDRO as being prepared as a "shared" allocation - as opposed to a "separate" allocation? Assuming the Former Spouse is actually entitled to a survivor annuity benefit per the QDRO, then how would you propose that she "share" that annuity with the current spouse? What do you mean by "is it legal'? The only plans I know of where a survivor annuity can be shared between a former and a current spouse are FERS and CSRS Federal plans. And how would you work out the tax burden between the parties? Without a clear timeline of all of the events stated above, and without knowing what sort of Plan you are dealing with, there is not much I can do to assist you unless I try to guess the status of the matter. It would also be nice to know what role you play in the matter.

Sun Life Assurance Company v. Jackson, Case No. 3:14-cv-41, United States District Court, S.D. Ohio Western Division (September 19, 2018) available at - https://scholar.google.com/scholar_case?case=1364917141727116905&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:17102308171145443235:AAGBfm2dXJvPo0nUQKlDLqIPUBXxyXMitw An excellent case dealing with the guidelines for an award of attorney fees against an ERISA qualified Plan to a participant, beneficiary or fiduciary. Also, a good discussion of pre-judgment interest. You have a right to sue the Plan. A fiduciary such as the Plan Administrator owes an obligation to both the Participant and to the Alternate Payee as a beneficiary under 29 USC 1002(8). Under 29 USC 1132(a)(1)(B) a Participant or an Alternate Payee (who is classified as a beneficiary), can sue "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;" Under 29 USC 1132(e)(1) it states that: "(e)Jurisdiction (1)Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, fiduciary, or any person referred to in section 1021(f)(1) of this title. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under paragraphs (1)(B) and (7) of subsection (a) of this section." (Emphasis supplied) A 2008 case from the US Court of Appeals for the 1st Circuit, Geiger v. Foley Hoag LLP Retirement Plan, held as follows: "Geiger [the party complaining about the QDRO] argues that state courts do not have jurisdiction to determine whether domestic relations orders are QDROs . . .Geiger cites no cases in support of his position. Instead he relies on what he calls the "unambiguous language" of ERISA, specifically, 29 U.S.C. §1132(e)(1), which provides that federal courts "have exclusive jurisdiction over civil actions under this subchapter brought by a . . . participant," with the exception that state courts have concurrent jurisdiction over actions brought to recover benefits or enforce or clarify rights under a plan. 29 U.S.C. §1132(a)(1)(B). In Geiger's view, this is the beginning and the end of the inquiry. His view, however, has been rejected by several courts. See e.g., Scales v. Gen. Motors Corp., 275 F. Supp. 2d 871, 876-77 (E.D. Mich. 2003) ("tate courts have concurrent jurisdiction regarding the interpretation of QDROs . . . and are fully competent to adjudicate whether their own orders are QDROs."); In re Marriage of Oddino, 939 P.2d 1266, 1272 (Cal. 1997) (action to qualify domestic relations order is an action to "obtain or clarify benefits claimed under the terms of a plan," and thus within state courts' jurisdiction); Robson v. Elec. Contractors Ass'n Local 134, 727 N.E.2d 692, 697 (Ill. App. Ct. 1999) ("tate and federal courts have concurrent subject matter jurisdiction to construe the ERISA provisions relating to a QDRO . . . ."); Eller v. Bolton, 895 A.2d 382, 393 n.6 (Md. App. 2006) ("State and federal courts have concurrent jurisdiction to review a plan's qualification of a state domestic relations order . . . .")." "Geiger acknowledges the one-sidedness of the caselaw, but argues that the rationale set forth by those decisions both violates ERISA's plain language and is "logically senseless." We do not agree. In our view, it is significant that Congress has expressly exempted QDROs from ERISA's general preemption of state law. 29 U.S.C. 1144(b)(7). We are further persuaded that, "separate litigation of the QDRO issue in federal court presents the potential for an expensive and time-consuming course of parallel litigation . . . in the two court systems." Oddino, 929 P.2d at 1274-75. And finally, we share the view of the Oddino court that: Congress, having given state courts the power to issue orders determining and dividing marital rights in retirement plans, would require a separate federal court proceeding to decide whether the order is a QDRO. This would cause undue hardship, expense and delay to the affected party, and impose an unnecessary workload on already overburdened federal courts." Similar decisions came from the 9th Circuit - Mack v. Kuckenmeister, 619 F. 3d 1010 (9th Cir. 2010); Langston v. Wilson McShane Corp., 776 N.W.2d 684, 693 (Minn. 2009), Jones v. Am. Airlines, Inc., 57 F. Supp. 2d 1224, 1232 (D. Wyo. 1999), and see Turner, Equitable Distribution of Property, §6:19 n.11. If you attorney's head spins around like Linda Blair in The Exorcist, find another attorney. Bottom line: File suit in the nearest court of general jurisdiction or in the US District Court if it is reasonably close by, and, among other things, ask that the Plan pay 100% of your attorneys fees and costs of litigation. If your description of the situation is accurate, you should prevail. The concern of every lawyer is that you may have inadvertently left out some important little fact that will turn a good case into a loser. Tell me what city in Pennsylvania the divorce was granted and I will see if I can find someone for you to talk to. DSG

You need a lawyer familiar with QDRO matters. In what state was the divorce granted and the QDRO issued?

A little knowledge is a dangerous thing. So with that preface: >>It may be that the Participant had retired before the Plan received the QDRO and had elected a single life annuity. That is permissible in many non- ERISA qualified plans (e.g. all Maryland State Retirement and Pension System Plans) and the subsequent QDRO would not have been able to award a QJSA. I am purposely being loose with the language since in Maryland it would have been a Eligible DRO and the way to implement a survivor annuity would have been to select one of 4 statutory options. >>It may be that the Participant remarried and then retired before the QDRO as approved and his new wife became irrevocably vested in the survivor annuity benefit. There are plenty of cases on that situation. See, 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: “This Circuit agrees with the Fourth Circuit's decision in Hopkins and adopts its rationale. Rivers failed to protect her rights in Franklin's pension plan by neglecting to obtain a QDRO prior to Franklin's retirement date. Consequently, Franklin's pension benefits irrevocably vested in Mrs. Franklin on the date of his retirement and Rivers is forever barred from acquiring an interest in Franklin's pension plan.” To the same effect see Dahl v. Aerospace Employees’ Retirement Plan, a 2015 case from the U.S. District Court for the Eastern District of Virginia (and cases cited therein) - https://scholar.google.com/scholar_case?case=3487596170773082469&q=dahl+v.+aerospace&hl=en&lr=lang_en&as_sdt=20000003&as_vis=1 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. >>It may be that the Participant was a police office, firefighter or corrections office in one of many plans where survivor annuity benefits are not available for FORMER spouses....only to current spouses. But if the QDRO was entered by the Court, and if a certified copy was received by the Plan, and it the Plan "qualified" the QDRO, that is, approved it (as they must have done since you received a portion of his retirement annuity) , and if none of the foregoing sort of problems existed, and if the Plan did not implement a QJSA for you, then you need to find a lawyer who can sue the Plan on your behalf. It is the job of the Plan to follow the instructions in the QDRO. The instruction to the Participant to elect a QJSA is tantamount to a direction to the Plan to make that election on his behalf. And if someone else is receiving the survivor annuity that you should have received, then you can sue that person under a number of theories including constructive trustee. See, e.g., Andochick v. Byrd, 709 F.3d 296 (2013), and a recent California case, In re: Marriage of Stine, No. A154972, Court of Appeals of California, First District, Division One, - Filed November 22, 2019, and Hennig v. DIDYK, Tex: Court of Appeals, 5th Dist., No. 05-13-00656-CV, (2014). Good luck.

I think you are confused. A "shared" interest allocation provides for payments to the Alternate Payee if, as and when payments begin to be paid to the Participant. On the death of the Participant a survivor annuity becomes payable to the Alternate Payee. With a "separate" interest allocation the Alternate Payee is awarded a share of the Participant's accrued benefit as of the date of the divorce. There is no need for a survivor annuity since the Alternate Payee's share of a "separate" interest continues throughout her lifetime. In a "separate" interest allocation it is as though the Alternate Payee had worked for the Employer and earner her own separate benefit. One of the major differences is that with a "separate" interest allocation the Alternate Payee does not have to wait until the Participant retires before the Alternate Payee can start to receive her share. If the Participant is over age 50 and is eligible for retirement (age 50 rule under ERISA may or may not be applicable), then the Alternate Payee can elect to begin to receive her share regardless of whether or not the Participant has retired. Another difference is that the payments to an Alternate Payee in a "shared" allocation will be measured by the life expectancy of the Participant and then followed by a survivor annuity benefit, while the payments to an Alternate Payee in a "separate' interest allocation will be measured by the life expectancy of the Alternate Payee. Much will depend on whether the plan you are dealing with is a State, Count or Municipal Plan where the standard would be a "shared" interest allocation and where there is no option for a separate interest allocation. If the Plan is a union plan. they often will offer the option for shared or separate. Police pensions often don't have survivor annuity benefits for former spouses - only for current spouses. The difference between the two QDROs is not just a word or two. The language is completely different. Also, if the Participant is retired when the QDRO is submitted, the only option is the "shared" interest approach. So your statement that the QDRO was drafted as "a Separate Interest (with Survivorship)" does not make sense. The fact that you cannot get your share until her retires is a feature of a "shared" interest allocation and NOT a "separate" interest allocation, and the separate interest does not allow for survivorship since it is built in. So you are stating it backwards. The bottom line is that the nature of the allocation of benefits is dependent on the language of the separation agreement or the language in the Judgment of Absolute Divorce ("JAD"). If the Agreement or the JAD uses words such as "if, and and when", then it's a "shared" allocation. If the Agreement or the JAD refers to "vested benefit" at the time of divorce or "earned during the marriage", it's a "separate" interest allocation. Normally a QDRO can be changed from shared to separate, or vice versa, prior to the retirement of the Participant. Once the Participant retires the only option is normally sharing. Other factors that can create havoc would be the remarriage of the Participant followed by his retirement (if it's an ERISA qualified Plan which State, County and Municipal plans are generally not but Union plans may be), or the death of the Participant prior to approval of the QDRO and the ability of the QDRO to be entered post mortem per the Pension Protection Act of 2006 if it's a ERISA Plan, or if you are in a state where State, County and Municipal Plans can be entered post mortem even if ERISA does not apply, like Maryland. Just to be clear. The Plan doesn't approve a QDRO as a shared interest if it is not. The QDRO cefines what it is, and the Plan Administrator approves or not. You can call a fish a bird, but that doesn't make it so. Here is a Memo I prepared earlier this year re: shared v. separate. Look at the one canoe/two canoe section showing the possible benefits/detriments of one over the other. Show this message to your attorney. If he/she doesn't have a clue what I am talking about, get another attorney. David Goldberg Shared v. Separate For Pam.pdf

Unfortunately, Destiny, I cannot help you because your recitation the the facts make no sense. You said it a "contribution" plan, and by that I assume it's a DEFINED CONTRIBUTION plan like a 401(k). In my experience your comments about 18 months have nothing whatever to do with your problems. As I noted above, the plan has 18 months from receipt of the QDRO and to approve it. That's the only significance of the 18 months language. And almost all plans don't take that long. There is no 18 month waiting period for you to receive a transfer of your share once the QDRO is approved. Once the Plan has approved the QDRO they should normally offer you the option of rolling it over to you own IRA, or making a taxable distribution to you. And there may be other options. I suspect you didn't have a lawyer or didn't have a lawyer who know how these matters were handled. You need to find an attorney who can help you. There is likely more involved, but we cannot be of assistance if we cannot understand what happened that resulted in matters not proceeding in the usual way.

I don't disagree with your concerns. It's difficult to respond to a questioner who doesn't have a clue what's going on. The same is likely true of his/her attorney and the judge as well. I see this (and worse) regularly on this blog and on my own DSGfamily listserv here in Maryland/DC/Virginia with about 1500 members where attorneys are inquiring about QDROs never prepared/signed/submitted/qualified in connection with a divorce that took place in the 80s and 90s, and now somebody has died/remarried/retired/moved to Tierra del Fuego, or the Plan is not under the supervision of the PBGC. Maryland has a "discovery" rule with regard to legal malpractice, that is, the statute of limitations does not expire in 3 years; it expires 3 years after the client knew or in the exercise of reasonable care should have known of the attorney's violation of the standard of care. That can be years in the future. Tip for us all - buy the extended reporting endorsement (tail) to your errors and omissions coverage when you retire.

She talked about her share being put into an "interest bearing account". That sounds like an defined contribution plan to me.

See my comments in ALL CAPS BOLDED. Scenario - A pension plan was joined to a divorce back on June of 2016; WHAT DOES THAT MEAN? JOINED? after the case was filed back on July of 2015 . WHO ARE YOU? THE PARTICIPANT? ALTERNATE PAYEE? PLAN ADMINISTRATOR? ATTORNEY FOR ANY OF THE FOREGOING? In August of 2016, alternate payee receives an audit letter from the plan , to put up her community share in an interest-bearing account , until the divorce is final . WHAT GENERATED THAT "AUDIT LETTER" FROM THE PLAN. IN YOUR STATE DOES THE ALTERNATE PAYEE HAVE A RIGHT TO DIRECT HER COMMUNITY PROPERTY, OR MUCH THAT AWAIT THE ISSUANCE BY A QDRO AND ITS APPROVAL BY THE PLAN. IN EQUITABLE DISTRIBUTION STATES "MARITAL PROPERTY" DOES NOT EXIST EXCEPT IN CONNECTION WITH A DIVORCE. IS THAT TRUE IN YOUR STATE WITH REGARD TO COMMUNITY PROPERTY? I ASSUME THE SEGREGATION OF FUNDS WAS INTENDED TO PROTECT THE ALTERNATE PAYEE'S SHARE. The plan received a certified QDRO in July of 2018. DID THE PLAN APPROVE/QUALIFY THE ORDER? WHEN? IF IT IS APPROVED IT SHOULD BE PAID TO THE ALTERNATE PAYEE IMMEDIATELY. Do the plan hold the funds that were set- up in the interest barring account mentioned in the audit letter , back in 2016, in a 18-month segregation period, required by erisa , or when they are joined to the divorce ?? IF THE PENSION (THAT I SUSPECT IS A DEFINED CONTRIBUTION PLAN AND NOT A PENSION) IS COMMUNITY PROPERTY, WOULDN'T THE FULL AMOUNT BE DIVIDED, THAT IS, NOT LIMITED TO THE AMOUNT THAT WAS SEGREGATED? OR DID THE COURT FREEZE THE AMOUNT AS OF A CERTAIN DATE? If so, 18- months will expire soon ... under erisa when are they required to release the retroactive benefit to the alternate payee ? THE PLAN HAS 18 MONTHS FROM THE DATE IT RECEIVES THE QDRO TO APPROVE IT. THAT WOULD ACCOUNT FROM JULY, 2018. START AT PAGE 4 OF THE FOLLOWING - https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/qdro-determining-qualified-status-and-paying-benefits.pdf

You are still entitled to your share, since there seems to be a new employer and a new plan, you may need a new QDRO. You delay of over 20 years is the source of your problems. I cannot imagine why the Plan did not make an immediate rollover to you in 2003 when they received the Order. Here is a link to you rights as a former spouse under CalPers. https://www.calpers.ca.gov/docs/forms-publications/community-property.pdf I doubt that anyone will be able to determine gains and losses and investment experience from 11/9/97 to date. DSG

On the death of the Alternate Payee the defined benefit plan would become a non-issue unless the Plan and the Agreement of the parties or the JAD permitted the Alternate Payee to pass her share of the Participant's retirement annuity to her estate similar to what can be accomplished in FERS and CSRS per 5 CFR 838.237 that you can find at https://www.law.cornell.edu/cfr/text/5/838.237 As far as the 401(k) Plan is concerned the Pension Protection Act of 2006 provides for the possibility of a post mortem QDRO, so the death of the Alternate Payee would make no difference. But I would be hesitant to use her signature. I would ask the court to enter the QDRO without her signature, or with the signature of her Executor/Personal Representative. There are also a number of cases that address the issues by the use of a nunc pro tunc QDRO. Yale-New Haven Hospital v. Nicholls, 788 F.3d 79, 85 (2d Cir. 2015) where the Court held that two nunc pro tunc Orders issued after the death of the Participant were valid QDROs. Said the Court: “Domestic relations orders entered after the death of the plan participant can be QDROs. In the Pension Protection Act of 2006, Congress made clear that a QDRO will not fail solely because of the time at which it is issued, see Pub. L. No. 109-280, § 1001, 120 Stat. 780 (2006), although several of our sister circuits had already reached that conclusion, see, e.g., Files v. Exxon Mobil Pension Plan, 428 F.3d 478, 490-91 (3d Cir. 2005) (finding that a posthumous order constituted a QDRO), cert. denied, 547 U.S. 1160 (2006); Patton v. Denver Post Corp., 326 F.3d 1148, 1153-54 (10th Cir. 2003) (same); Hogan v. Raytheon Co., 302 F.3d 854, 857 (8th Cir. 2002) (same); Trs. of Dirs. Guild of Am.-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 421-23 (9th Cir. 2000) (same).” I have a number other citations on this issue that I can furnish you if you need them. Let me know. In many states, including Maryland, a QDRO is merely an enforcement tool like a garnishment or an attachment designed to implement another court order, i.e. the JAD (incorporating the Agreement). What follows is from a Memo on the subject: Neither Maryland or Federal law requires that both parties or their respective counsel consent to the entry of a Qualified Domestic Relations Order (or other similar Court orders for non ERISA Plans). See Rohrbeck v. Rohrbeck, 318 Md. 28, 566 A.2d 767 (1989), where the Court of Appeals recognized the use of appropriate pension orders as an enforcement tool. The Court held that, "As is evident from this discussion, the QDRO has become an order of high significance in State domestic relations practice. An attempt to cause pension plan benefits payable to one party to be paid to an alternate payee, whether through an attachment in aid of a support obligation or pursuant to the Marital Property Disposition Act (Md. Fam.Law Code Ann. § 8-205) can succeed only through the mechanism of a QDRO. See Fox Valley & Vicinity Const. Workers v. Brown, 879 F.2d 249, 252 (7th Cir.1989): "[E]RISA preempts any attempt to alienate or assign benefits by a domestic relations order if that order is not a QDRO." See also Cummings Techmeier v. Briggs & Stratton, 797 F.2d 383 (7th Cir.1986). Absent such a qualified order, not only will the pension plan administrator refuse to implement the court's decision, but, given the anti-alienation provisions extant in both the labor and tax codes, coupled with the preemption provision of ERISA § 514 (29 U.S.C. § 1144), there is at least a reasonable argument that a non-qualified order may be invalid even as between the parties." * * * * ". . . .we therefore expressly recognize the ability of a party otherwise entitled to a QDRO to obtain one as an aid to enforcing a previously entered judgment." (Emphasis supplied.) A Qualified Domestic Relations Order? is in the same category as an attachment, garnishment or other enforcement mechanism found in the Maryland Rules, including, for example, a writ of execution, charging order, or sequestration, and does not require the approval of the party against whom such Order is sought. It is nonsensical to suggest that to be the case. How easy it would be for an unhappy litigant to frustrate the intent of the parties in an Agreement, or of the Court in it's JAD, by simply refusing to sign off on the QDRO. Delays in the entry of a QDRO can be fatal if, for example, the Participant in a 401(k) or TSP terminates his/her employment and withdraws all of the money in such an account. Or if the Participant dies without an Order in place and (in non ERISA cases where a post mortem or nunc pro tunc Order cannot be obtained pursuant to the Pension Protection Act of 2006, or in the case of the Maryland State Retirement and Pension System per Robinette v. Hunsecker, 439 Md. 243?, 96 A.3d 94 (2014)), the Alternate Payee/Former Spouse will receive nothing. Or if the Participant in an ERISA qualified Plan remarries and retires before a QDRO is in place, thereby permanently divesting the Alternate Payee from survivor annuity benefits (per Hopkins v. AT&T Global Information Solutions Co., 105 F.3d 153 (4th Cir. 1997)). As for the Federal view, see this DOL pamphlet attached, and you can find it at - https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/publications/qdros.pdf - Go to Question 1.2, 6th paragraph on page 15 where it says, "There is no requirement that both parties to a marital proceeding sign or otherwise endorse or approve an order." [ERISA §§ 206(d)(3)(B)(ii), 514(a), 514(b)(7); IRC § 414(p)(1)(B)] See also Engel v. Sambrana, No. 1886, September Term, 2012 (unreported) affirming the Rohrbeck case. Even if the view that both parties need to sign the QDRO is correct, see Marquis v. Marquis, 175 Md.App. 734, 931 A.2d 1164 (2007), where the husband was held in contempt by the trial court for his refusal to sign the proposed Constituted Pension Order dividing his Military pension. And there was nothing to prevent a Court from appointing a "trustee" to sign the QDRO on behalf of the husband. Hope this helps. David

I ask for the name of the Plan so I can determine if we are dealing with a defined benefit plan or a defined contribution plan or a cash balance plan, or with an ERISA qualified plan or a Federal, State, County or Municipal Plan, or with a church plan or a Railroad Retirement Plan, or even perhaps with an international plan. A layman is normally not going to have a clue what sort of plan he is dealing with. If he doesn't want to post it on this blog he can find my email and send it to me and I will be happy to give him my thoughts.

I assume that this was a defined benefit plan, that is, a pension. If it was a defined contribution plan like a 401(k), your wife would have received a lump sum payout of her share shortly after the divorce and your share would be available to you at retirement in a lump sum unless you chose to take it as an annuity. [Unless they overpaid your former spouse and that's the problem?] I will assume it was a defined benefit plan. That being the case, I don't understand what the date of divorce and the issuance of a QDRO had to do with an error made by the Plan Administrator when you retired in 2018. If there was an error it would have been made at the time of your retirement and might have been the result of an error in determining your years of service, or your compensation history, or your age, or your life expectancy. So you are not providing the facts necessary for us to understand what happened. More details are necessary including the exact name of the Plan. DSG

I agree with you that the odds are not good. BUT, here in Maryland (and in may other states as well) the courts have determined that survivor annuity benefits are a separate item of marital property, and that unless a party specifically asks for survivor annuity benefits in his/her Complaint, or unless the written Agreement of the parties or the Judgment of Absolute Divorce specifically addresses/awards survivor annuity benefits, the Alternate Payee does not get them. There is no logic to this since, among other reasons, the survivor annuity benefits arise from the same Plan document as does the entitlement to retirement annuity benefits, and cannot exist or be defined except with reference to the retirement annuity benefits. So I don't trust the courts not to use twisted logic to come up with a result that nobody could predict. On the other hand, in one case, Blaine v. Blaine, 336 Md. 49, 646 A. 2d 413 (1994), the Court of Appeals that, “Even where the language of a statute is plain and unambiguous, we may look elsewhere to divine legislative intent; the plain meaning rule is not rigid and does not require us to read legislative provisions in rote fashion and in isolation. Motor Vehicle Admin. v. Shrader, 324 Md. 454, 463, 597 A.2d 939 (1991).” Not what we learned in law school about statutory interpretation. One would hope for a more reasoned approach from Federal Courts, but you never know. David

Luke Bailey: 26 CFR 1.401(a)(3)(b)(1) does provide: "(b) No assignment or alienation - (1) General rule. Under section 401(a)(13), a trust will not be qualified unless the plan of which the trust is a part provides that benefits provided under the plan may not be anticipated, assigned (either at law or in equity), alienated or subject to attachment, garnishment, levy, execution or other legal or equitable process." But if you click on the link imbedded at the word "benefits", you get a reference to 26 CFR § 1.414(f)-1: "4) Benefits. The plan provides that the amount of benefits payable with respect to each employee participating in the plan is determined without regard to whether or not his employer continues as a member of the plan. If benefits accrued as a result of the participant's service with his employer during a period before such employer was a member of the plan, this requirement does not apply to the amount of those benefits, except that this requirement does apply to the amount of those benefits (i) which are accrued benefits derived from employee contributions, or (ii) which are accrued under a plan maintained by an employer prior to the time such employer became a member of the plan to which the requirements of this paragraph (a) are applied." A basic rule of statutory construction is that, if the legislature had intended to include alternate payees, they could very simply have said "alternate payees", and that the omission of those two words is evidence that they did not intend to preclude alternate payees from alienating their derivative benefits. And see 26 USC 1056(d)(1) providing that "Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated." And 26 USC 1056(d)(3)(A) providing: "Paragraph (1) shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order, except that paragraph (1) shall not apply if the order is determined to be a qualified domestic relations order. Each pension plan shall provide for the payment of benefits in accordance with the applicable requirements of any qualified domestic relations order." So it looks to me that they have abrogated ALL antialienation requirements with respect to a transfer pursuant to a QDRO. It is hard to argue that they only abrogated the antialienation provisions with respect to Participants while keeping such a restrictions on Alternate Payees, but failed to mention that simple fact. But, you say, the Alternate Payee's benefits are merely part of the Participant's benefit and logic dictates that they be treated the same. That may be true of a shared interest allocation, but not a separate interest allocation. But, you say, doesn't the Alternate Payee's share of the Participant's benefits terminate on the death of the Alternate Payee and cannot be assigned by the Alternate Payee to another beneficiary? Under FERS and CSRS the Alternate Payee/Former Spouse can leave her share to her estate (or others) per 5 CFR 838.237. And see this article at - https://corporate.findlaw.com/human-resources/transferring-the-alternate-payee-s-retirement-benefits-at-death.html#:~:targetText=In practice%2C this allows an,the alternate payee and participant. One of the most interesting observations in the above article is that "Although ERISA provides that an alternate payee under a QDRO is considered a beneficiary under the plan, nothing in ERISA prevents a plan from granting an alternate payee the same or similar rights as a participant." So why can't a Plan afford the Alternate Payee to provide for a survivor annuity as one form of alienation? The Shelstead case discussed in the above article was discussed by the Court of Special Appeals of Maryland in Eller v. Bolton at - https://scholar.google.com/scholar_case?case=14971316948354987133&q=eller+v.+bolton&hl=en&lr=lang_en&as_sdt=4,21&as_vis=1 In also discussed other cases where the question considered was whether an Alternate Payee can transfer benefits to a subsequent beneficiary. See, Divich v. Divich, 665 N.W.2d 109 (S.D.2003), and Seal v. Raw, 954 S.W.2d 681 (Mo.Ct.App.1997). The point, of course, is that the person who posted the query, who is in pay status, might be able to transfer a portion of his pension annuity to an Alternate Payee, who could then use that entitlement as collateral for a loan. N'est-ce pas? Suppose he is happily married and has no children, you ask? Well he could get divorced, get the QDRO approved by the Plan, and remarry his spouse. FRAUD!! A SHAM!! you indignantly proclaim. Not so. Read 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 one of my favorite cases. David

Query: It is clear that a Participant cannot alienate his interest in a defined benefit plan except via a QDRO. But can an Alternate Payee alienate her interest is a defined benefit plan by pledging it as collateral or otherwise? It seems to be that the antialienation exemption under 26 USC 401(a)(13)(B) applies to the right of a Participant to transfer benefits to an Alternate Payee pursuant to a QDRO, but it doesn't address the right of the Alternate Payee to alienate the benefits received from the Participant.

If it was forfeited it doesn't exist and I don't know of any state where property that no longer exists can be classified as marital property. It is no different from the loss of equity in real property caused by a drop in market value - it's just gone. Unless the forfeiture was due to your affirmative and purposeful dissipation of the funds in the account (for the purposes of depriving your wife of her share of your marital assets), in which event the court could treat it as extant, then there is no rational argument she can make against assets that no longer exist.

Follow up. Tell your attorney to check out Stinner v. Stinner, 554 A.2d 45, 48 (Pa. 1989) on the issue of whether the QDRO is an enforcement tool. And tell him/her to read Rohrbeck v. Rohrbeck, 566 A.2d 767, 774 (Md. 1989) (expressly recognizing the ability of a party entitled to a QDRO to obtain one to enforce a previously entered judgment); In re Marriage of Thomas, 789 N.E.2d 821, 831 (Ill. App. Ct. 2003) ("[W]e hold that ERISA permits a trial court's entry of a QDRO to assign pension and other retirement benefits to a former spouse to satisfy a judgment for past-due maintenance and child support payments."); Hogle v. Hogle, 732 N.E.2d 1278, 1281 (Ind. Ct. App. 2000) ("It is well-established that, under certain circumstances, a pension may be attached or garnished as a means of satisfying a support arrearage."); Baird v. Baird, 843 S.W.2d 388, 392 (Mo. Ct. App. 1992) ("ERISA permits QDROs to be used to enforce an earlier entered support judgment and collect delinquent maintenance and child support payments against a pension fund."). And see Kesting v. Kesting, Docket No. 42875, 2016 Opinion No. 35, Supreme Court of Idaho (March, 2016).

In many states (like Maryland) a QDRO is an enforcement tool, like a garnishment or an attachment, the purpose of which is for the court to enforce its Orders. As such is does not have to be signed by the parties, only by the Judge. A certified copy will then be sent to the Plan Administrator for approval. Ask the Plan Administrator if they require the QDRO to be signed by the parties. If not, have your lawyer submit the QDRO to the Court for signature without further ado. Note, the language of the QDRO should not have obligated you to take a lump sum distribution to pay him his share. You need to talk to your lawyer about this. I hope the QDRO preparation company knew what it was doing. There are a great number of such QDRO preparers who charge minimal amounts and are truly incompetent. The fact that they called it a QDRO is a bad sign since the word "Qualified" does not apply and since the booklet sent my Mr. Gulia refers to it as a "DRO".

What is your role/title? What type of plan? Is it a qualified plan? Are you under the impression that you can set up an IRA for someone who you cannot locate? Are you under the impression that you can send funds into an unclaimed state fund before the expiration of 5 years? What is the source of your 5 year limitation? Have you hired a private investigator to locate the beneficiary? Does the plan provide for an alternate beneficiary such as the estate of ???

Were the REIT plans part of your ex's 401(k) Plan or part of your ex's IRA? Was the QDRO signed by a judge and was a certified copy sent to the Plan administrator of the 401(k) or the custodian of the IRA? Did you receive a "determination letter" of some other document from the 401(k) or the IRA approving the QDRO and explaining what they were planning to do? Did you set up an IRA to receive the REITs? Do you have written statements showing that the REITs were in YOUR IRA at some point? You are not giving us all the details necessary to help you. If the REITS were transferred from your ex's retirement accounts to your own IRA, there is no way they can be somehow transferred back without explanation. You must have received a written explanation from somebody. Supply more information, including a copy of the QDRO and maybe someone can help you. Did you have a lawyer handle the divorce on your behalf? Have you consulted him/her?

If you are divorced, in almost all cases your right to his pension and retirement benefits ends with the divorce, but is promptly reinstated with a QDRO. The exception is that if your ex-husband retired while you were still married and elected you to receive his survivor annuity (as would be required under Federal law - ERISA - unless you waived it), then the divorce would have no impact on your entitlement to that survivor annuity and it would be payable to you even without a QDRO. You didn't say what sort of plan you were dealing with, whether it's a defined contribution plan like a 401(k) Plan, or a defined benefit plan - that is, a pension. If it is a defined contribution plan and someone else was named as the beneficiary, then you are likely out of luck. If the 401(k) Plan did not have a named beneficiary, or it it was a defined benefit plan then you should be able to obtain a post mortem (after death) QDRO that the Plan Administrator will have to accept and enforce, and in that case you would receive your share of the 401(k) or a survivor annuity, as the case may be. If it was a pension plan (defined benefit), if your husband remarried and retired and named his new wife to receive the survivor annuity benefit, then you will be out of luck and a QDRO will not help. You can see that this is not a simple matter and you have not provided the information necessary to give you a better answer. It was your attorney's responsibility to make sure that the QDRO was prepared at the time of the divorce and to forward a certified copy to the Plan Administrator immediately after the divorce. You and he should never have left it to your ex-husband. DSG