fmsinc

Thank you Larry.

Trust me. If the husband has $600,000 in a 401(k) Plan, the wife will want her $300,000 in a lump sum rollover (or taxable distribution but no 10% penalty) as soon after the divorce as possible so that she can invest with her financial advisor as she deems appropriate. She is NOT going to want to wait for an annuitized payout that will commence at some uncertain point in the future (or can it be accelerated like a shared allocation of a defined benefit plan), perhaps long after the divorce is final. She is not going to be happy to find out that her ex-husband elected a life only annuity so that her share of the annuity will end on his death which might occur within a year or two leaving her with less than she is entitled to. (And what happens to the balance in the annuity "account"?) She is going to want to want QJSA and a QPRA elections, but if the husband made the election prior to the divorce and was not required to make those elections for his then current wife, and if the non-election cannot be changed by a QDRO, she will be in serious trouble. And she is also going to insist on being named as the death benefit beneficiary of the annuity if and to the extent that is an option. In the world of QDROs we almost never deal with annuity payouts of defined contribution plans. It's almost always cash at the time of divorce. I have seen a few cases where the Plan will reallocate the annuity between the parties making the adjustments necessary to account for each party life expectancy. Also note that pension and retirement accounts are deemed at law to be "property" and not income (even though when they are in pay status they look, feel and smell like income). Note also that court's don't generally have jurisdiction to award alimony as a substitute for property, although the parties have often done that as part of a settlement agreement - helped along by the fact that prior to January 1, 2019, the income tax consequences were the same in either case. Unfortunately, the TCJA of 2017 eliminated the deductibility of alimony by the payor and made it not taxable to the payee, so it is no longer possible to use alimony as a workaround that would have the same tax consequences as an annuity payout to each party of his/her share of a defined contribution plan. The malpractice exposure for family lawyers could be enormous. David

Thank you. Just what I needed. The fog has lifted. David

I am often asked, outside of a divorce context, whether or not a Participant in a defined contribution plan needs to notify and/or obtain consent from his spouse before: (i) making a loan; (ii) taking a hardship distribution; (iii) rolling over Plan benefits to an IRA or other qualified Plan account; or, (iv) taking a taxable distribution. I know how it works with a Federal TSP Plan, but I cannot find a definitive answer or a reference to any applicable statute as it relates to 401(k), profit sharing, 403(b), ESOP, or other form of defined contribution plan, or with respect to an IRA. . Much of what I see says that it depends on the Plan documents. Any ideas? David

No, Larry. The original DRO called for a lump sum and that was not an option. It seems that the only option NOW is a lump sum. But in all events a NEW QDRO will be required.

It is not clear from your narrative what happened to the QDRO when it was received by the TPA. They would normally have responded and rejected it. But whether that was done or not, I would contact the attorneys and the parties involved and tell them what has happened and suggest that they need to submit an Amended QDRO that conforms to the current options available under the Plan and the terms of their Agreement. I have never seen any law providing that a defective QDRO can suddenly become acceptable when there is a change in the Plan, especially when 14 years have elapsed from the date of the QDRO. There are many states where the Court lacks jurisdiction to issue an Amended QDRO, so the matter may be moot. I think that pursuant to 29 USC 1002(8) you have an affirmative duty to act as a fiduciary toward the Alternate Payee/beneficiary as well as the Participant, and you must make reasonable efforts to resolve the matter.

Your response does not address my question that will arise in a divorce context only. I am not concerned about the lifetime illustration. Ex: The parties are married but there are storm clouds on the horizon. Can the Participant husband elect an annuitized payout of his DC plan account BEFORE THE DIVORCE AND BEFORE HE RETIRES? If he can do so, will that election be superseded by a QDRO directing that the Alternate Payee wife receive a lump sum rollover or taxable distribution? Or must the QDRO provide the Alternate Payee with only one option, a portion of the annuity on an if, and when paid basis? Will a life annuity be the only option, or will some form of QJSA be available? The answer to these questions may profoundly change the way retirement assets are addressed in divorce cases.

The SECURE Act implements a new requirement on defined contribution plans, such as 401(k), profit sharing, and ERISA covered 403(b). The requirement states that a participant’s statement must not only provide the current value, it must also state the lifetime income that could be derived from the value by purchasing a lifetime annuity. The Department of Labor (DOL) still needs to finalize details on how this formula will work. This requirement will go into effect 12 months after the DOL issues guidance. So somebody out there is looking a the possibility of a payout in a form other than a lump sum. So I don't understand your distinction between an "investment" and a benefit.

The act provides in pertinent part: "SEC. 109. PORTABILITY OF LIFETIME INCOME OPTIONS. (a) In General.—Subsection (a) of section 401 of the Internal Revenue Code of 1986 is amended by inserting after paragraph (37) the following new paragraph: “(38) PORTABILITY OF LIFETIME INCOME.— “(A) IN GENERAL.—Except as may be otherwise provided by regulations, a trust forming part of a defined contribution plan shall not be treated as failing to constitute a qualified trust under this section solely by reason of allowing— “(i) qualified distributions of a lifetime income investment, or “(ii) distributions of a lifetime income investment in the form of a qualified plan distribution annuity contract, on or after the date that is 90 days prior to the date on which such lifetime income investment is no longer authorized to be held as an investment option under the plan." Will this result in a 401(k) Plan being treated like a defined benefit plan (with an annuitized payout to the Alternate Payee) rather than a defined contribution plan (with a lump sum rollover or distribution to the Alternate Payee)? If the former, will is look more like a separate interest allocation determined as of the date of the divorce (or some other specified date), or like a shared interest allocation if as and when the Participant goes into payout status? More questions. Will the Participant be able to take loans from his share? Will the Alternate Payee be able to take loans from her share? Will you Plan Administrators have to prepare for the possibility that you will inherit and have to deal with an entire new class of benefit recipients for a very long time in the future? You would have thought somebody would have given some thought to these issues. Oh....wait....there is no chance of that level of forethought. David

I suggested that the Participant might elect an annuity payout of his 401(k) before the divorce became final and before a QDRO was submitted to the Plan Administrator. There are a number of questions. First is whether the Alternate Payee would not have the right to receive a lump sum rollover or distribution. Second, is how do you compute the Alternate Payee's share if, for example, at the time of divorce the Participant has $100,000 in his 401(k) (all marital), and he continues to work another 10 years and by that time the value of his 401(k) is up to $200,000. Third, if the Alternate Payee will receive her share as an annuity, and she dies, what will happen to her unpaid share, and how can that be determined if it's a life annuity unless the plan creates a separate account for the Alternate Payee right at the beginning. Fourth, will the Alternate Payee have the right to commence her annuitized payments whenever she wants to , or will she be bound to wait if, and and when, the Participant starts to take his share. Fifth, will the Plan adjust the Alternate Payee's share for gains, losses and investment experience? Sixth, what type annuity options will be available to the Alternate Payee? Seventh, will the Alternate Payee be able to name a beneficiary for his/her unpaid share, or will it revert to the Plan? David

I have been searching in vain for discussions concerning the impact of the SECURE Act on the allocation of pension and/or retirement benefits. Ex: May a Participant in a 401(k) Plan elect an annuitized payout of his 401(k) Plan account prior to the divorce and thereby deprive the Alternate Payee of the ability to elect an immediate lump sum tax free rollover or a taxable distribution? Thanks, David

I think David is correct that you will need a second QDRO rather than an Amended QDRO. In Missouri a QDRO can be used to collect child support arrears. See the 4 cases cited at https://scholar.google.com/scholar?hl=en&lr=lang_en&as_sdt=4%2C26&as_vis=1&q=qdro+collection&oq= The other point you raise deals with the ability of the Court to enter a QDRO that orders the payment of more than the current amount due in order to cover future child support obligations. The answer will depend on the law in Missouri with respect to sequestration, that is, a request that additional funds over and above the amount then due be paid over to the Registry of the Court, or to the appropriate Child Support Collection Agency, for the purpose of making payments that will become due and payable in the future. We can do that in Maryland. The law in Missouri can be found at https://scholar.google.com/scholar?hl=en&lr=lang_en&as_sdt=4%2C26&as_vis=1&q="child+support"+sequestration&btnG= I will leave it to you research the answer to the question. David

The problem is that even though the QDRO's have not yet been entered for the pension and the 401(k) Plans, the law in many states holds that she actually is the beneficial owner of the interest awarded to her in these benefit plans, and that you hold them as constructive trustee for her benefit and have a fiduciary duty toward her. This also leads to the conclusion that she is entitled to the gains, losses and investment experience with respect to her original share of the 401(k) Plan. See the attached Memo that deals with both of these issues. Proving the increase in the value of the 401(k) is another issue. See 2 additional Memos attached. Note that these Memo's were prepared from the perspective of Maryland law and may or may not apply in your state. In Maryland a QDRO is viewed as an enforcement tool, like an attachment or garnishment that can be entered at any time, even many years after the entry of the Judgment of Divorce. Other states may view QDROs in a different light and impose a limitation that precludes their entry after a certain period of time (statute of limitations). Some jurisdictions may hold that the court loses jurisdiction to address the entry of a QDRO. Another problem is that when you retire, the Plan Administrator may ask you to fill out a form that asks (with respect to your pension) whether or not you have been divorced and whether or not there is a court order awarding retirement or survivor annuity benefits to a former spouse. In most jurisdictions, if you had a written Agreement with respect to the pension allocation, and if that Agreement is incorporated into the Judgment of Divorce, then the Agreement is deemed to be an Order of the Court and enforceable as such. If the Plan has knowledge of this it will become very nervous about paying out retirement benefits to you that may belong to your ex-wife and may refuse to pay any payments to you until the matter is resolved. Note that Plans are not required to do this, but they don't want to get drawn into court battles and find it easier to put pressure on you. Yet another issue is what will happen is you remarry and then retire and name your current spouse to receive your retirement annuity benefits. Under those circumstances (and if we are talking about an ERISA qualified plan), your new spouse becomes vested in your survivor annuity benefits and your former spouse will not receive them regardless of any subsequently issued QDRO. See, e.g., these cases: in Hopkins v. AT&T Global Information Solutions at http://scholar.google.com/scholar_case?case=9954117838131396049&q=hopkins+at%26T+global&hl=en&as_sdt=2,9 followed by the 5th Circuit in 1999 Rivers v. Central and South West Corporation at http://scholar.google.com/scholar_case?case=2296953953561556363&q=rivers+central+and+south+west&hl=en&as_sdt=2,9: “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 The bottom line is that burying your head in the sand and hope she predeceases may not make all of these issues go away. Even is YOU die before she does, the Pension Protection Act of 2006 will allow the Court to enter a post-mortem (after death) QDRO, so your estate may have to deal with these issues after your death. I have assumed that you are covered by a regular US business plan that is one of the 960,000 or so Plans subject to a Federal Law known as the Employee Retirement Income Security Act of 1974 - ERISA. If you are a participant in a Federal, state, county or municipal plan then ERISA will not apply but some features will be the same. So you need to find a lawyer in your jurisdiction who is conversant with this very esoteric area of law and who can tell you where you stand if you do nothing, and what you have to gain or lose if you proceed to have the QDROs prepared and submitted to the court. BTW, your ex-wife's lawyer is guilty of flagrant malpractice in failing to follow up on these QDROs, and is likely subject to sanctions by the governing Bar Association for violation of the Rules of Professional Conduct. See two more attachments discussing the liability of attorneys under these circumstances. Good luck. Gains, Losses, Ownership Interest and Constructive Trust.pdf 401(k) Tracing Marital Portiion See 3.3.3 & 3.3.4(i).pdf Tracing by DSG Memo.pdf JLG Article - It Ain't Over.pdf Malpractive - Lawyer Liability in QDRO Cases - Willick.pdf

You did not reply to my inquiry about the type of assets in the Plan. On January 3, 2020, I receive statements for the 12-31-19 value of my retirement and investment accounts. What in the world takes 9+ months to value?

The question is out of my area of expertise, but how can it take until October, 2020, to determine a value as of December 31, 2019. Am I missing something? What sort of assets are held by the Plan that take 9 months or more to value? That would result in the Participant losing whatever gains are made from December 31, 2019, through October, 2020, or conversely, the Plan having to pay out more than it should if there is a loss in value from December 31, 2019, through October, 2020, and more than it HAS as of the October 2020 valuation date. This issue was addressed in 2018 at

Nobody on this blog can give you any useful information without the FACTS, as follows: 1. In what state was the QDRO entered? 2. What is the exact name of the Plan? There are 40,000+ pension plans in the USA and it matters if the Plan is sponsored by a private corporation, or by a State, County or municipality, or by a union, or by a a church, or by the Federal government (FERS, CSRS, FSPS, the Military), or by an International organization. They all have different requirements and underlying rules. 3. Date the divorce was entered? 4. What was the exact language of the divorce judgment pertaining to survivor annuity benefits? 5. Date was the QDRO entered? 6. What was the exact language of the QDRO relative to survivor annuity benefits? 7. Date the QDRO was approved by the Plan? 8. What was the exact language of the Plan in correspondence approving the QDRO as it pertained to survivor annuity benefits? 9. Did you husband remarry? If so, what was the date of remarriage? 10. What was the date of your husband's death? Was it before or after his retirement? Was it before or after his remarriage? 11. What exactly did the Plan say in correspondence rejecting your request for survivor annuity benefits? 12. Did you have a lawyer representing you during the divorce? It is unlikely that the Plan would refuse to comply with a QDRO they have approved without a good reason. For example, if it was a Military Retired Pay Division Order dealing with a Military pension and you did not file at DD-2656-10 "deemed election" within 12 months after the divorce (and your ex husband did not file a DD-2656-1 within that time frame,) you lose the survivor annuity benefits. For example, if it was a FERS or CSRS or a Military Plan and you remarried before age 55 and had not been married to your ex-husband for 30 years+, you lose the survivor annuity benefit. For example, if your husband remarried and retired before the QDRO was approved, your husband's new wife would receive and survivor annuity and your rights to a survivor annuity would be permanently lost. For example, if your husband dies before the QDRO was approved, some plans will permit a post mortem (after death) QDRO to be prepared and enforced, and other plans will not. For example, if the QDRO provided for a survivor annuity payable if he dies AFTER his retirement and he dies BEFORE his retirement, then no pre-retirement survivor annuity will be paid because the QDRO didn't provide for it, and no post-retirement retirement annuity will be paid because he died before retirement. My guess is that there is a piece of information that you don't realize is important that may have led to your current situation. Provide more information and we may be able to help and perhaps refer you to an attorney that can help you. And by the way, who are you? The Alternate Payee/Former Spouse, or the attorney for one of the parties? DSG

I think it's a battle worth fighting. You have nothing to lose.

The portion of the JAD you sent refers to a Western Conference of Teamsters Retirement Account. I cannot find that Plan in the Department of Labor database. I did, however, find a WESTERN CONFERENCE OF TEAMSTERS PENSION PLAN. Generally the phrase "retirement account" refers to a defined contribution plan, like a 401(k), where a fixed dollar amount or percentage is transferred to the Alternate Payee at the time of divorce. The phrase "Pension Plan" refers to a defined benefit plan where the Participant retires at a certain age an received a multiyear payout (usually for life) base on his time in service and income history - and there is a survivor annuity available for a former spouse or current spouse. I cannot assume that the court just made a mistake. Maybe the court did not intend to give the a share of the "pension plan" to the Alternate Payee. I took about 30 seconds to find the following websites (assuming this is the correct plan): https://wctpension.org/participants/plan-summary https://wctpension.org/participants/plan-summary/other-information https://www.wctpension.org/forms-documents/plan-forms/instructions-and-explanation-model-qdro-provisions https://www.wctpension.org/forms-documents/plan-forms/model-provisions-qualified-domestic-relations-order and see the attached booklet. Call Mr. Gulia is an attorney in Pennsylvania and he can likely help you. Call him at 215-732-1552. WCTPT_Summary_Plan_Booklet.pdf

SEE MY RESPONSES IN ALL CAPS BOLDED: FIRST - WHAT ARE YOU? CURRENT WIFE I AM GUESSING? SECOND - WORDS MATTER. I CANNOT ANSWER A QUESTION WITHOUT CORRECT FACTUAL INFORMATION. You make clear exact references. But there was NO qdro ever started/completed at the time of the divorce in 2011. The language in the JAD is vague. I WOULDN'T KNOW IF IT'S VAGUE OR NOT SINCE NEITHER YOU NOR YOUR HUSBAND HAS BOTHERED TO SET FORTH THE EXACT LANGUAGE OF THE JAD, SO ANYTHING I MIGHT SAY IS LIKELY JUST AN EDUCATED GUESS. It was included that the ex wife was responsible to complete a qdro and to hire a qdro attorney if needed. She never did. The plan started paying only 50% of retirement to my husband. After 18 months passed , he inquired about the segregated portion but was denied any rights to the other 50% as it was intended for the AP if and when a qdro was received. WHAT ABOUT THE DISABILITY RETIREMENT WHAT YOUR HUSBAND SAYS IS NOT MARITAL PROPERTY IN YOUR STATE? I CANNOT COMMENT ON WHY THE PLAY PUT A FREEZE ON THE EX-WIFE'S SHARE OF THE PLAN BENEFITS UNLESS THEY DETERMINED THAT THEY NEEDED TO DO SO TO PROTECT THEIR OWN BUTT. The plan notified the APs divorce attorney to ask if they planned to complete a qdro. Her divorce attorney attempted to write a qdro himself . After getting this information my husband consulted with a qdro attorney that suggested he should complete the qdro process, as the ex wife and her attorney were negligent (7 years) in completing the qdro. And for the fact that a divorce attorney has no business attempting to write a qdro. My husband has a family law attorney as well as a qdro attorney retained to complete this process. The plan is active in trying to complete this as well , as there has been many bad decisions made on their part. We now have a draft , that includes language that’s conflicting. That gives AP her shared percentage of spouse benefits after participants death. THIS IS A SURVIVOR ANNUITY THAT MAY NOT HAVE BEEN AWARDED BY THE JUDGE. AS ABOVE. I WOULD NEED TO SEE THE ACTUAL JAD TO BE SURE. AND YOUR ATTORNEY WOULD HAVE TO CHECK THE LAW OF YOUR STATE TO SEE IF A SURVIVOR ANNUITY IS SUBSUMED INTO AN AWARD OF RETIREMENT BENEFITS....OR WHATEVER THE JAD SAYS. How can we proceed forward and accept this “proposed qdro” when it’s so misconstrued. When my husband questions his qdro attorney about his concerns, he was told he shouldn’t be so greedy. The plan is opening the door for continued issues in this case. Do we stop before signing and head to court ? IF YOU WANT ME TO LOOK AT THE JAD FAX IT TO ME AT 301-947-0501 AND INCLUDE A TELEPHONE NUMBER WHERE I CAN CALL YOU BACK.

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?