fmsinc

The fact that the Plan Administrator approved the QDRO means nothing. They will accept whatever if put in front of them if it reflects the implementation of the benefits provided in the Plan Documents. It is not ordinarily their job to look behind or investigate the QDRO and determine whether the court had proper jurisdiction or acted pursuant to State law. At OPM for example, in administering CSRS and FERS Orders 5 CFR § 838.101(a)(2) states: "In executing court orders under this part, OPM must honor the clear instructions of the court. Instructions must be specific and unambiguous. OPM will not supply missing provisions, interpret ambiguous language, or clarify the court's intent by researching individual State laws. In carrying out the court's instructions, OPM performs purely ministerial actions in accordance with these regulations. Disagreement between the parties concerning the validity or the provisions of any court order must be resolved by the court." But, re: ERISA, see Advisory Opinion No. 1999-13A the IRS Division of Fiduciary Interpretation Office of Regulations and Interpretations was asked: "You have asked for an advisory opinion as to whether, and if so when, a plan administrator may investigate or question a domestic relations order submitted for review to determine whether it is a valid “domestic relations order” under State law for purposes of section 206(d)(3)(B) of ERISA." The response was as follows: "When a pension plan receives an order requiring that all or a part of the benefits payable with respect to a participant be paid to an alternate payee, the plan administrator must determine that the judgment, decree or order is a “domestic relations order” within the meaning of section 206(d)(3)(B)(ii) of ERISA — i.e., that it relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child or other dependent of the participant and that it is made pursuant to State domestic relations law by a State authority with jurisdiction over such matters. Additionally, the plan administrator must determine that the order is qualified under the requirements of section 206(d)(3) of ERISA. It is the view of the Department that the plan administrator is not required by section 206(d)(3) or any other provision of Title I to review the correctness of a determination by a competent State authority pursuant to State domestic relations law that the parties are entitled to a judgment of divorce. See Advisory Opinion 92-17A (Aug. 21, 1992). Nevertheless, a plan administrator who has received a document purporting to be a domestic relations order must carry out his or her responsibilities under section 206(d)(3) in a manner consistent with the general fiduciary duties in part 4 of title I of ERISA." "For example, if the plan administrator has received evidence calling into question the validity of an order relating to marital property rights under State domestic relations law, the plan administrator is not free to ignore that information. Information indicating that an order was fraudulently obtained calls into question whether the order was issued pursuant to State domestic relations law, and therefore whether the order is a “domestic relations order” under section 206(d)(3)(C). When made aware of such evidence, the administrator must take reasonable steps to determine its credibility. If the administrator determines that the evidence is credible, the administrator must decide how best to resolve the question of the validity of the order without inappropriately spending plan assets or inappropriately involving the plan in the State domestic relations proceeding. The appropriate course of action will depend on the actual facts and circumstances of the particular case and may vary depending on the fiduciary’s exercise of discretion. However, in these circumstances, we note that appropriate action could include relaying the evidence of invalidity to the State court or agency that issued the order and informing the court or agency that its resolution of the matter may affect the administrator’s determination of whether the order is a QDRO under ERISA.5(5) The plan administrator’s ultimate treatment of the order could then be guided by the State court or agency’s response as to the validity of the order under State law. If, however, the administrator is unable to obtain a response from the court or agency within a reasonable time, the administrator may not independently determine that the order is not valid under State law and therefore is not a “domestic relations order” under section 206(d)(3)(C), but should rather proceed with the determination of whether the order is a QDRO."

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

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

You have a number of possible approaches. The first would arise if NYCERS is subject to ERISA. I don't think it is, but pursuant to the Pension Protection Act of 2006 ("PPA") a post mortem QDRO is acceptable. See 29 CFR 2530.206. It is possible that a plan not subject to ERISA may still permit post mortem QDROs under state law. See for example the Maryland case of Robinette v. Hunsecker, 212 Md.App. 76, 66 A.3d 1093, 293 Ed. Law Rep. 892, (2013) involving a Plan under the auspices of the Maryland State Pension and Retirement System and not subject to ERISA or to the PPA. In other jurisdictions the approach is to allow the entry of a nunc pro tunc QDRO in a manner that backdates the QDRO to a date prior to the Participant's death. See, e.g., Rivera v. Lew, District of Columbia Court of Appeals, On Certification from the United States Court of Appeals for the District of Columbia Circuit, Case No. 14-SP-117, 99 A.3d 269 (2014). See also Patterson v. Chrysler Group, LLC, Case No. 15-10563, United States District Court, E.D. Michigan, Southern Division (February 17, 2016) - https://scholar.google.com/scholar_case?case=17997658400954740315&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt. Holding that a nunc pro tunc QDRO entered by a State court trumps ruling of Plan Administrator that the “QDRO” submitted did not satisfy ERISA requirements so as to make it acceptable as a valid QDRO that the Plan was required to implement during the lifetime of the Participant. This case was reversed on other grounds by the US District Court of Appeals, 6th Circuit, 845 F.3d 756 (2017), but the opinion is worth reading. You can find it at https://scholar.google.com/scholar_case?case=17591176685277926266&q=patterson+v.+chrysler&hl=en&lr=lang_en&as_sdt=4000800000000000000ffffffffffffe04&as_ylo=2017&as_vis=1

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

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

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

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

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

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

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

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

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

In Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285, 299-304 (2009), the Supreme Court held that retirement plans may rely on the plan terms and beneficiary designation forms in determining the proper recipient of survivor benefits. The ruling resolved a split among the federal courts, many of which had ruled that plans had to recognize the validity of divorce decrees in which a surviving spouse had purportedly waived her right to a survivor benefit from her ex-spouse’s pension plan, even if she remained the designated beneficiary on plan forms after the divorce. Although the Court’s ruling leaves a number of questions unanswered, it does make clear that, in most situations, a plan administrator may now ignore such a divorce decree and pay out a survivor benefit in accordance with the plan’s terms and beneficiary designation forms on file. It would seem to follow logically that the Plan Administrator acting through Fidelity, most likely the Third Party Administrator, acted property in paying out the 401(k) Plan to the named beneficiary. But does the intended beneficiary have the right to pursue the named beneficiary to recoup amounts paid out to the named beneficiary. The Kennedy court stated in footnote 10, " ""Nor do we express any view as to whether the Estate could have brought an action in state or federal court against Liv to obtain the benefits after they were distributed. Compare Boggs v. Boggs, 520 U.S. 833, 853, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997) ("If state law is not preempted, the diversion of retirement benefits will occur regardless of whether the interest in the pension plan is enforced against the plan or the recipient of the pension benefit"), with Sweebe v. Sweebe, 474 Mich. 151, 156-159, 712 N.W.2d 708, 712-713 (2006) (distinguishing Boggs and holding that "while a plan administrator must pay benefits to the named beneficiary as required by ERISA," after the benefits are distributed "the consensual terms of a prior contractual agreement may prevent the named beneficiary from retaining those proceeds"); Pardee v. Pardee, 2005 OK CIV APP. 27, ¶¶ 20, 27, 112 P.3d 308, 313-314, 315-316 (2004) (distinguishing Boggs and holding that ERISA did not preempt enforcement of allocation of ERISA benefits in state-court divorce decree as "the pension plan funds were no longer entitled to ERISA protection once the plan funds were distributed")." (Emphasis supplied.) Many appellate decisions have addressed such post distribution suits and have adopted a theory of constructive trust to justify a claim against the named beneficiary (not the Plan Administrator). But it is first important to note that this is not a clean analogy. The Kennedy case was premised on the preemption of state law by ERISA in the first instance. In the situation presented we are dealing with two competing ERISA provisions, one giving the spouse the entitlement to 401(k) Plan proceeds, and the other permitting the Plan Administrator to distribute the proceeds to the NAMED beneficiary. In Andochick v. Byrd, 709 F.3d 296 (2013), the United States Court of Appeals, Fourth Circuit, answered the question left open in the Kennedy case, this is, whether an action could be brought against the recipient of life insurance proceeds (or retirement benefits) by reason of having been the named beneficiary of a company plan covered by ERISA, and restore those benefits to the person who equitably should have received such benefits. The issue was stated by the Court as follows: “Scott Andochick brought this declaratory judgment action, asserting that ERISA preempted a state court order requiring him to turn over benefits received under ERISA retirement and life insurance plans owned by his deceased ex-wife, Erika Byrd. ERISA obligates a plan administrator to pay plan proceeds to the named beneficiary, here Andochick. The only question before us is whether ERISA prohibits a state court from ordering Andochick, who had previously waived his right to those benefits, to relinquish them to the administrators of Erika's estate.” The Court held: “Finally, as the Third Circuit recently explained when addressing facts nearly identical to those at hand, “the goal of ensuring that beneficiaries ‘get what's coming quickly’ refers to the expeditious distribution of funds from plan administrators, not to some sort of rule providing continued shelter from contractual liability to beneficiaries who have already received plan proceeds.” Estate of Kensinger v. URL Pharma, Inc., 674 F.3d 131, 136 (3d Cir.2012). Permitting a post-distribution suit against a plan beneficiary based on his pre-distribution waiver does not prevent the beneficiary from “get[ting] what's coming quickly.” Rather, as the district court noted, it merely prevents him from keeping what he “quickly” received. Thus, we conclude that permitting post-distribution suits accords with the ERISA objectives discussed in Kennedy.” (Emphasis supplied.) There are many other cases with similar holdings. The issue in the instant case may be whether or not Fidelity was deemed to be on notice that the Participant was married at the time of his death, or was required to make that inquiry before paying out the 401(k) account to the son. I think not. If the son is successful in secreting the funds in question in his brother-in-laws corporate account in Tierra del Fuego, then the case of In Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, 136 S. Ct. 651, 193 L. Ed. 2d 556, 577 US __ , (2016), may become pertinent. In that case the Supreme Court held that pursuant to 502(a)(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”), a Plan Administrator may not recover overpayments from a Participant’s general assets. The decision impacts both retirement and health and welfare plans. Is this applicable to the instant case? Who knows. An interesting situation. David

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

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

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

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

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

Nobody on this message board can provide helpful answers when you clearly don't understand the facts of your case, use incorrect terms, confuse 401(k) plans with pension plans, and are simply unable to explain your situation. This is not your fault since you are a lay person and not expected to understand this very complicated area of the law. That was your attorney's job. You are using an acronym "DRO" that is a term of art for us. It means "Domestic Relations Order" to us, but we have no idea what it means when you use it. One thing is clear. If the court did not award you part of the other party's pension, you are not going to get it. A QDRO is a method of enforcing a previous court order such as a Judgment of Divorce, or an agreement of the parties incorporated into the Judgment of Divorce. Whether it was a mistaken omission likely doesn't matter at this late date. The underlying document should have spelled out out the terms in detail and not just referred to "all retirement plans". It should have identified the exact names of each plan and the formula to be used by the Plan Administrator to compute your share. I cannot imagine why your ex would agree at this late date to give you anything that he was not required to give you. I cannot even figure out what YOUR retirement in 2020 has to do with your entitlement to your ex's share of his/her pension. You need to hire a lawyer who knows about pension and retirement allocations in divorce cases and can give you an answer to your individual situation. There are no one size fits all answers to be found here.

David is correct. It was in the same thread and sounded like the same issue. I didn't notice the difference in names.

There are two matters. It sounds like he had a RETIREMENT ANNUITY that would pay him a retirement benefit WHILE HE IS ALIVE. If and when he is dies, the RETIREMENT ANNUITY stops. If you were receIving a share of his RETIREMENT ANNUITY, or if you were supposed to receive a share of his RETIREMENT ANNUITY, then your share STOPS AT THE TIME OF HIS DEATH. So you can stop talking about his retirement annuity. One more time - it ended at his death. It cannot be revived by your agreement or by the QDRO. The second matter is a SURVIVOR ANNUITY that pay you AFTER HE DIES. In most cases the SURVIVOR ANNUITY is going to be 50% ot the total amount of the RETIREMENT ANNUITY. So if his RETIREMENT ANNUITY was $1000 a month, then the SURVIVOR ANNUITY will be $500 a month. Do you know what you are getting? Is it the survivor annuity? Are you actually receiving payments every month? You have said "Also divorce states I get half of the pension plan. We also both agreed I get half of his annuity." These terms have no meaning to me or to the other person who responded to you. You were asked to explain and you did not. I am not willing trying to figure out what you are talking about when you obviously can't understand the language. I am pretty sure you have received correspondence from the Plan that explains everything to you. So, once again I suggest you HIRE A LAWYER who can help . . I offered to try to find someone for you if you tell me where you live, but you did not take me up on that offer. You can contact me at my email - marylandmediator@gmail.com if you wish. It does matter what you and your husband agreed, or what the QDRO said about his retirement annuity. After his death the retirement annuity goes away; it stops, and there is nothing more to talk about. At that point the survivor annuity kicks in. The survivor annuity is based either on the QDRO setting forth the Plan's obligations to you as a FORMER SPOUSE, or the Federal Law setting forth the Plan's obligation to you under ERISA and without regard to the QDRO. It may be that the QDRO was superseded your remarriage. DSG

There are about 200,000 pension and retirement plans in the US. They do not all have the same provisions. David is correct that you have not explained the difference between his pension and his annuity. Very often defined contribution plans refer to their benefits "annuities". This is an incorrect use of that term. Annuities are generally associated with defined benefit plans. Union plans are frequently guilty of this mistake. A QDRO is not a document that is used to waive pension and retirement benefits. It is a document that is used to award pension and retirement benefits. Since you husband has died, there are no pension or annuity benefits to discuss or receive. If he had awarded you a share of his pension benefits they would have terminated on his death. There are only SURVIVOR ANNUITY benefits that are designed to continue to pay benefits to you as his former spouse after his death . If you were married to him at the time of his death, and it this is and ERISA qualified plan (rather then a Federal government plan or a State, County or municipal plan where the rules might be otherwise), you would be entitled by law to a survivor annuity benefit and in many cases the default is 50% of the amount of the pension he was receiving while he was alive. So if you are receiving 50% of what his pension has been, they you are receiving the correct amount. This would have nothing to do with the divorce. If for example the Judgment of Divorce or the QDRO did not award you a survivor annuity, the your right to that survivor annuity would terminate a the time of the divorce; but it would be reinstituted at the time of your remarriage. And all of the foregoing may depend on whether he died before or after his retirement. So unfortunately, since you are unable to articulate and explain the exact situation, there is nothing at all that we can do to assist you. You need to find an attorney with some familiarity with this complex area of the law. Tell me where you look and I will try to find someone to help you.

I was indeed being totally sarcastic. Reading the Code and Regs so many decades ago ended by thoughts of becoming a CPA. The law suited me better, but reading Revenue Rulings, as I occasionally must, brings back the nightmares. David

Now I understand: Glad I don't have to deal with this stuff. I assume this is the guideline for what you need to do in order to avoid having a QJSA in connection with a defined contribution plan? 第一部分 第401节-合格的退休金，利润分享和股票红利计划 （同样§§401（a）（11），417; 26 CFR 1.401（a）-20。） 在确定的供款计划下将遗属年金要求应用于延期年金合同。 Rul牧师2012 –3 问题 当延期年金适用于《内部税收法》第401（a）（11）和417条中所述的合格联合和遗属年金（“ QJSA”）和退休前遗属合格年金（“ QPSA”）规则如何适用在下述情况下，根据利润共享计划购买了合同？ 情况1 公司A赞助计划X，这是一项符合以下条件的获利分享计划 §401（a）具有合格的现金或§401（k）中所述的递延安排。计划X的任何部分都不是员工持股计划。计划X规定了选举延期和匹配供款。 计划X的参与者被允许在计划可提供的任何投资选择（包括由保险公司签发的递延年金合同）中指导其选择性递延和匹配供款账户的投资。该计划按投资和捐款来源分别核算所有金额。 计划X下没有其他年金选项，该计划不是另一计划的资产或利益的直接或间接受让方。 计划X参与者在延期年金合同中的投资金额在投资时用于购买合同，该合同规定从第一个月的第一天开始付款，该月的付款从参与者退休或达到年龄的较晚日期开始65岁以下的人（除非是拥有5％所有权的参与者，否则规定了较早的开始日期） §416，在70½岁之后退休）。递延年金合同下的应付金额固定为在第一期的第一天的第一天，该天根据合同支付了该金额（年金起始日期）。递延年金下的应付金额 年金起始日的合同取决于该日合同下的累计金额，以及用于确定该日年金购买率的精算假设（包括利率和死亡率假设），但要遵守最低购买率保证集在合同中。在延期年金合同中投资的金额可以在年金开始日期之前的任何时间转移到其他投资中。 通常，计划X下的延期年金合同以多种寿险年金形式之一支付给付，这些寿险年金形式可以在年金开始日结束的180天期间内选择，但参加者可以在年金开始日之前的任何时间选择日期，以单笔付款。如果参加者在年金开始日期未结婚，并且是50％的共同年金和遗属年金（尚存的配偶作为共同年金），则如果不选择其他形式，则付款方式为终身纯年金。 ）在精算上等同于 在该日期已婚的参与者的情况。如果参加者在年金开始日期结婚，并且参加者选择了与共同生还者作为共同年金的共同年金和幸存者年金形式不同的终身年金表，并且获得者的年金不少于联合年金金额的50％或100％以上。因此，例如，如果参与者选择满足第417（g）条所述合格合格的遗属年金（“ QOSA”）定义的年金，则无需配偶同意。 计划X规定，如果参与者在延期年金合同下的年金起始日期之前去世，则该参与者的尚存配偶（或者，如果没有尚存配偶，则该参与者的指定受益人）将获得与不可撤销的应计福利相等的死亡利益。根据合同规定，截至死亡之日。递延年金合同项下的不可剥夺的应计收益是合同价值，其中考虑了100％的选举递延款项和对等供款。如果是已婚参加者，则死亡抚恤金将以年金的形式支付给在世的配偶，以其在世的终身（除非该在世的配偶选择单笔付款）。 对于未投资在延期年金合同中的金额，计划X规定，在参与者死亡时，应在以下情况下支付参与者的不可没收的应计收益（由计划由于持有的未偿还的参与者贷款而持有的任何抵押权益减少）。参加者的尚存配偶全额（或，如果没有尚存的配偶或尚存的配偶经公证，则为指定的受益人）。 参与者P投资了部分计划X的延期选修和