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If I, as the attorney for the Alternate Payee, send you, the Plan Administrator, a copy of the written Agreement of the parties, and/or a copy of the Judgment of the Absolute Divorce, what will you do? Suppose in my cover letter I tell you that the terms of the Agreement were incorporated into the JAD and that the language of the Agreement or the JAD satisfies the requirements of 29 U.S.C. §1056(d)(3)(c) and may be considered to be a QDRO, but that I and opposing counsel are working on a QDRO - and I send you and unsigned draft of the QDRO and suggest that it will be forthcoming shortly. I also suggest that you should take whatever actions are necessary to protect the Alternate Payee's interest from any actions by the Participant that would deprive the Alternate Payee of the benefits assigned in the Agreement/JAD/proposed QDRO, and that your failure to do so may involve you in a lawsuit for damages sustained by the Alternate Payee, breach of fiduciary interest, etc. First, I think the 18 months begins to run and the Plan has to make a determination of whether the Agreement or JAD in fact constitute a QDRO. Attached find a MSPB case dealing with a situation where the Former Spouse applied for a survivor annuity benefit under CSRS after the death of her former husband and without any COAP having ever been submitted to OPM before his death. It is not an ERISA case but demonstrates the lengths to which judicial tribunals have gone to protect the rights of Former Spouses/Alternate Payees. Before this case those of us who prepared CSRS and FERS Orders were of the opinion that if the COAP was not in OPM's hands prior to the death of the Employee, the Former Spouse would be SOL. This is no longer true. And keep in mind that under the Pension Protection Act of 2006 post mortem ERISA QDROs can be enforced despite not having existed prior to the death of the Participant. If I were a Plan Administrator, Files v. ExxonMobil Pension Plan, 428 F. 3d 478 (2005), that you can find at - https://scholar.google.com/scholar_case?case=16381733883965097154&q=Files+v.+ExxonMobil+Pension+Plan,+428+F.+3d+478+&hl=en&lr=lang_en&as_sdt=20003&as_vis=1 would make me very nervous. As in the Eagles song, Hotel California, "They stab it with their steely knives, but they just can't kill the beast". Second, I think that if I were advising my client I would say that under the circumstances, I would not take any action. I would not want to see the client become the test case to determine the time and circumstances under which the Plan Administrator must put a freeze on the Participant's interest. I had a case recently where the parties were divorced in 2004. The wife was to get a share of her ex-husband's defined contribution plan and a survivor annuity benefit. No QDRO was ever submitted to the court. She found out in 2016 that he was planning to retire and wrote a letter to the Plan Sponsor with a copy of the JAD asking about the amount of her share. The Plan advised the Participant that they would not make any distributions to him unless and until they had a certified copy of a QDRO in hand. This is not an uncommon occurrence. Petrimoulx case (1).pdf

If it helps, here is a Memo I prepared for the members of my DSGfamily listserv dealing with the issue of when a Judgment of Absolute Divorce (with or without an incorporated Marital Settlement Agreement) can constitute a valid QDRO. See attached. David JAD = QDRO.pdf

A number of the posts in this thread seem to focus on the question of whether or not the amount awarded from a defined contribution plan will be subject to gains, losses and investment experience from the "valuation date" to the date of transfer to the Alternate Payee (via tax free rollover or taxable distribution, as the case may be) or the segregation of the Alternate Payee's benefits by the Plan before such transfer. Here is a Memo I prepared for my colleagues here in Maryland. Gains, Losses, Ownership Interest and Constructive Trust.pdf

Here's how you can make the husband happy and save him some money. First, the Plan is not going to distribute anything to anybody now that they know there is an Agreement that I assume was incorporated in the Judgment of Absolute Divorce. They will insist on a QDRO so like it or not a QDRO will be necessary. Second, if the QDRO is issued by the Court giving 50% to his ex-wife then at that point he can take out his 50%. BUT, the ex-wife's 50% will be taxable income to her but will not be subject to the 10% early distribution penalty. AND, his half will be taxable income to him and, if he is under 59-1/2. it WILL be subject to the 10% penalty. Third: Assuming he is under 59-1/2 and therefore subject to the 10% penalty, the parties should amend the Agreement to give her 100% ot the 401(k) and provide that she will divide the net after tax amount she received 50/50 with the husband. That will save both of them the 10% penalty. And there are no tax consequences to the transfer from her to him. I have done this on may occasions to get money into the hands of the Participant penalty free. And the law is clear that the Plan Administrator is not required, or even allowed, to look behind the motivations of the parties. My favorite case is In Brown v. Continental Airlines, Inc., 647 F. 3d 221 (5th Cir., 2011) https://scholar.google.com/scholar_case?case=4019345202025914766&q=brown+v.+continental+airlines&hl=en&as_sdt=20000003 Continental alleged that a number of pilots and their spouses obtained "sham" divorces for the purpose of obtaining lump sum pension distributions from the Continental Pilots Retirement Plan that they otherwise could not have received without the pilots' separating from their employment with Continental. The pilots were allegedly acting out of concern about the financial stability of Continental and the fear that the Plan might be turned over to the PBGC and that their retirement benefits would be substantially reduced. By getting divorced, the pilots were able to obtain QDROs from state courts that assigned 100% (or, in one instance, 90%) of the pilots' pension benefits to their respective former spouses. The Plan provides that, upon divorce, if the pilot is at least 50 years old (as all the pilots in this case were), a former spouse to whom pension benefits are assigned can elect to receive those benefits even though the pilot continues to work at Continental. (Think “separate interest” annuity allocation.) The former spouses presented the QDROs to Continental and requested payment of lump-sum pension benefits. After the former spouses received the benefits, the couples remarried. Continental sought to obtain restitution under ERISA Section 502(a)(3). The Court of Appeals noted that ERISA § 206(d)(3) limits the QDRO qualification determination to whether the state court decree calls for benefit payments outside the terms of the Plan. It rejected Continental’s expanded reading of § 206, concluding that plan administrators may not question the good faith intent of Participants submitting QDROs for qualification. But the opposite may be true in U.S. v. Brazile, No. 4:18CV56 RLW, United States District Court, E.D. Missouri (2018) - that you can find at - https://scholar.google.com/scholar_case?case=10011356851935590761&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:14880692104701005079:AAGBfm2qi1_JaXLJvydb4f3quYTnTlLkbA, where Steven Brazile was convicted of securities fraud and, as part of his plea agreement with the Government, he acknowledged owing restitution in the amount of $3,902,880.85. The Government imposed a lien against his property and rights to property under 18 U.S.C. § 3613(c). It seems that among Steven’s assets was a pension plan. Steven’s wife, Lorraine, filed suit for divorce and as part of the settlement the parties agreed to the entry of a QDRO transferring 100% of the plan benefit to Lorraine, thereby putting this asset unavailable for Steven’s restitution obligation. “ In September 2017, probation officers conducted a home visit at Defendants' home and discovered that Steven Brazile and Lorraine Brazile are living together with their children and are raising their kids together as a "family." (Id. at ¶ 28) The Government contends that this demonstrates that the Defendants entered into a "sham divorce" to transfer assets to Defendant Lorraine Brazile that could have been used to pay victim restitution. (Id. at ¶ 29) On January 12, 2018, the Government filed a three count civil Complaint against Defendants alleging fraudulent transfer in violation of 28 U.S.C. § 3304. (Id. at ¶¶ 30-44).” The case came before the court on Steven and Lorraine’s motions to dismiss or for summary judgment. The judge allowed the case go forward.

One of the leading experts in QDRO matters, Marshal Willick, practices in Las Vegas. Maybe he will take a look at your case without charging you. You can find him at https://www.willicklawgroup.com/marshal-s-willick-esq/ Mention my name. The following may help. I am attaching a Memo I prepared for the Bar in Maryland that confirms the proposition that it is not necessary for both parties to consent to the entry of a QDRO. One of the documents I reference is a Department of Labor pamphlet dealing with QDROs where it states at Question 1.2, 6th paragraph on page 5: "There is no requirement that both parties to a marital proceeding sign or otherwise endorse or approve an order." [ERISA §§ 206(d)(3)(B)(ii), 514(a), 514(b)(7); IRC § 414(p)(1)(B)] The law in Nevada may be the same,. See Mack v. Estate of Mack, that you can find at - https://scholar.google.com/scholar_case?case=2457338442981582706&q=must+both+parties+sign+qdro&hl=en&as_sdt=4,29 where in 2009 the Supreme Court of Nevada approved an oral QDRO which obviously was not and could not have been signed by the parties. In fact, The language of the Court was: " The district court issued a valid QDRO during Charla's lifetime. In the January 9 hearing, Judge Weller stated that within 48 hours, "a QDRO will be executed which will transfer to Mrs. Mack the sum of five hundred thousand dollars with any appreciation that is distributed to that five hundred thousand dollars and more or less equal installments over a period of five years." Here, the court issued a QDRO, because Judge Weller's oral order created a recognized existence in Charla, the right to receive a portion of Darren's ERISA pension plan. See id. § 1056(d)(3)(B)(i)(I). Because the district court issued a DRO, which was qualified, and it recognized Charla as an alternate payee with the right to receive a $500,000 payment from Darren's ERISA pension plan, we conclude that the QDRO was valid and affirm the order of the district court." So if the impediment in your case is the need to have the QDRO signed by both parties, the foregoing should be evidence that it is not necessary. Once again, the purpose of the QDRO is to IMPLEMENT the written Agreement of the parties, or, if they parties did not agree, the Order of the Court allocating pension and retirement benefits must likely issued in the Judgment of Divorce. Good luck David QDROs by DOL.pdf DSG Memo - SIGNATURE OF BOTH PARTIES ON QDRO.pdf

In Kari E. Kennedy, Executrix v. Plan Administrator for Dupont Savings and Investment Plan, 129 S.Ct. 865 (2009) which you can find at - https://scholar.google.com/scholar_case?case=16253581861885772265&q=KENNEDY+V.+DUPONT&hl=en&lr=lang_en&as_sdt=20003&as_vis=1 the Supreme Court of the United States held that you don't need a QDRO to waive an interest in a Plan, but that, in fact: "In fact, a beneficiary seeking only to relinquish her right to benefits cannot do this by a QDRO, for a QDRO by definition requires that it be the "creat[ion] or recogni[tion of] the existence of an alternate payee's right to, or assign[ment] to an alternate payee [of] the right to, receive all or a portion of the benefits payable with respect to a participant under a plan." 29 U.S.C. § 1056(d)(3)(B)(i)(I). There is no QDRO for a simple waiver...." So the waiver you seek should be set forth in the Marital Settlement Agreement, and in your case, it wouldn't hurt if the Judgment of Absolute Divorce contained language that would provide the Plan Administrators with something to put in their files to show such a waiver if needed for the unique laws of California re: community property. If the JAD doesn't contain that language, just furnish a certified copy to the Plan Administrators, explain the situation and ask if they need anything else. Normally any ERISA entitlements that one party has in the pension or retirement benefits of a Plan Participant die with the marriage unless preserved in a QDRO, or unless a party has retired prior to divorce and the Alternate Payee's survivor benefit rights have been confirmed. See Hopkins v. AT&T Global Information Solutions Co., 105 F.3d 153 (4th Cir. 1997) A "QDRO" is not required for a transfer of IRA funds since IRA are not a Plan under ERISA. The proper name is a "Retirement Benefits Order", but most (but not all) IRA custodians feel that NO Court Order is required. The are satisfied if the parties fill our their forms and provide a copy of the JAD and the MSA. But be careful, some states, including Maryland, do not authorize a transfer of retirement account balances except in connection with and incident to a divorce or annulment. Just because Federal law permits a transfer to a "spouse or former spouse" (IRC 401(d)(6)) does not mean that the court has the jurisdiction to do so. The tax and penalty risks if a transfer is made without proper jurisdiction are all on the IRA account holder. So check your state law. David Goldberg

I fear that your situation is simply too complicated to give you advice in this sort of forum. You need to find an attorney in your jurisdiction who deals with these matters. I know you are trying hard to explain what has happened, but in order to advise you an attorney would have to know the laws and procedures of your state and county, the history of the case, and review all of the documents in the file and correspondence. If you tell me the state and county in which the the case if pending, maybe somebody on this blog can recommend someone to you. Sorry I cannot be more helpful.

I have a QDRO that has been submitted to Plan Administrator and was approved as a good QDRO and mailed back to my Attorney as well as the defense in April of 2016. It needed the signature of the Judge and while it was held by the Defense attorney stating he thought it had a lot of errors in it and needed some questions answered. WHY WAS THE QDRO NOT SUBMITTED TO THE JUDGE FOR THE PAST 3 YEARS? I have over the 3 years with proof of it, asked for this QDRO to be signed. SIGNED BY WHO? Court ordered in August 2018, for it to be signed. SIGNED BY WHO? and we had 60 days. Now that I sent a letter last week to my Union asking AGAIN about the 18 month rule and that I wanted this rule to be explained and then acted YOU DON'T NEED TO WORRY ABOUT THIS RULE. WHEN THE PLAN ADMINISTRATOR GETS A CERTIFIED COPY OF THE QDRO SIGNED BY THE JUDGE IT WILL ACT ON IT PROMPTLY. on as I am financially not able to hire any more attorneys to fight the defense but found that maybe the DOL THE DOL DOES NOT HELP IN THIS SORT OF SITUATION. YOU NEED TO HAVE THE QDRO SIGNED BY THE COURT AND A CERTIFIED COPY SENT TO THE PLAN ADMINISTRATOR. THAT'S IT. could help and if that would help to get this QDRO released and pay us. NOW, a new QDRO was submitted SUBMITTED TO WHO? August 20, 2019 and approved APPROVED BY WHO? but I asked for only a date change not a new QDRO which states exactly word for word the same thing as the QDRO that has already been approved by the plan administrator. YOU NEED TO GET THE QDRO SIGNED BY THE COURT. WHO PREPARED THE QDRO FOR YOU? DID YOU HAVE AN ATTORNEY? This is a 401(a) Money Purchase Plan. IN MOST JURISDICTIONS A QDRO IS MERELY AN ENFORCEMENT TOOL TO FACILITATE THE COURT'S AWARD OF PENSION OR RETIREMENT BENEFITS FROM ONE PARTY TO THE OTHER. IT DOES NOT HAVE TO BE SIGNED BY THE PARTIES. THE JUDGE CAN SIGN IT IN THE SAME WAY THAT IT WOULD SIGN A GARNISHMENT OR ATTACHMENT ORDER.

See new Revenue Ruling 2019-19 - attached. And see comment from Blankrome also attached. rr-19-19.pdf RR 2019-19 Uncashed Distributions.pdf

I have had many 401(k) Plan Administrators tell me that the amount transferred to the Alternate Payee must be taken proportionally, that is, on a prorata basis, from all investment options, accounts, sub-accounts, funds and investment sources in the Participant’s account. The account could contain all or any of the following accounts: mutual fund accounts of varying risk, rollover accounts, pre-tax accounts, after-tax accounts, company stocks, cash accounts, matching employer contribution accounts, unallocated accounts, and loan repayment accounts with different tax consequences. Talk to the Plan Administrator and find out their policy on this issue.

New IRS revenue ruling on this very matter. See attached rr-19-19.pdf

It is impossible to respond to your questions since you do not understand what you are asking. It seems like it is you ex-wife that will benefit from the QDROs, so the burden to get them done rests on her. Stock option plans are not subject to enforcement via a QDRO, so I am pretty sure you don't have that type of plan. It could be a Employee Stock Ownership Plan (ESOP) but that's a different type of plan and is enforceable via a QDRO. You have spoken of "pension" and "money pension" accounts. These are terms of art. Are you in the Seafarers International Union? Are you eligible for Military benefits? What sort of disability retirement did you receive? From what employer? The bottom line is that you are not capable of getting the help you need on this blog. If you are in Nevada you need to contract Marshal Willick to represent you. His web site is at https://www.willicklawgroup.com/marshal-s-willick-esq/ Good luck.

I read Hopkins the same way, but I was looking for someplace in ERISA or the REA or in the PPA of 2006 or on the DOL website or somewhere in CFR or in Shulman's treatises, for a more formal definition of "retirement". These sources certainly define everything else ad nauseum. It is sort of disconcerting to find that the word "retirement" is defined at all, even in an exclusionary way. I believed that, as concluded, when the Participant enters pay status. Thanks for your encouraging and confirmatory comments. David

They refer to "retirement", but don't define what it is. It has always been my impression that retirement occurs when you enter pay status. Take a look Hubbard v. OPM, 247 F.3d 1236 (Fed.Cir. 2001) - a case that dealt with an Employee under CSRS. In this case the parties divorced and an appropriate COAP was prepared and forwarded to and approved by OPM. It contained standard provision setting forth the Former Spouse’s entitlement to a survivor annuity at the time of the Employee’s death. Mr. Hubbard left his employment with the Federal Government but did not apply for retirement benefits. He died and his Former Spouse applied for survivor annuity benefits. OPM denied her claim holding that since, at the time of his death, Mr. Hubbard was no longer an “employee” or an “annuitant”, no survivor annuity benefits could be paid his Former Spouse. The Court relied on 5 U.S.C. §8341(h)(1). CSRS is not under ERISA, but it does show that OPM and the statute quotes drew a distinction between leaving one's job and actually applying for retirement benefits. This issue no longer exists under FERS. The CSRS statute, 5 U.S.C. §8341(h)(1) says: “(h)(1) Subject to paragraphs (2) through (5) of this subsection, a former spouse of a deceased employee, Member, annuitant, or former Member who was separated from the service with title to a deferred annuity under section 8338(b) of this title is entitled to a survivor annuity under this subsection, if and to the extent expressly provided for in an election under section 8339(j)(3) of this title, or in the terms of any decree of divorce or annulment or any court order or court-approved property settlement agreement incident to such decree.” But 5 USC §8445(a) relating to FERS says: “(a) Subject to subsections (b) through (e), a former spouse of a deceased employee, Member, or annuitant (or of a former employee or Member who dies after having separated from the service with title to a deferred annuity under section 8413 but before having established a valid claim for annuity) is entitled to an annuity under this section, if and to the extent expressly provided for in an election under section 8417(b), or in the terms of any decree of divorce or annulment or any court order or court-approved property settlement agreement incident to such decree.” David

Many thanks to all for you insightful thought on this problem case. David

You can find all of the cases citing Hopkins at https://scholar.google.com/scholar?start=0&q=%22Hopkins+v.+AT%26T%22&hl=en&as_sdt=20000006 I think you are referring to Carmona at https://scholar.google.com/scholar_case?case=18397822866838499359&q=%22Hopkins+v.+AT%26T%22&hl=en&as_sdt=20000006 The closest I got to a definition of "retirement" was a sentence in REA dealing with "early retirement" where that phrase was followed by "and apply for benefits". The actual language was: ""(3) EARUEST RETIREMENT AGE.—The term 'earliest retirement age' means the earliest date on which, under the plan, the participant could elect to receive retirement benefits." Your views are very helpful. Thank you.

Participant's employment is terminated. He does not apply to for his pension annuity benefits, that is, to enter payout status? Has he "retired"? Does it matter if he has or has not reached early retirement age of 55 at the time of termination. I have an Hopkins v. AT&T situation (see link to case below) where at the time of divorce the husband had terminated his employment and had previously elected his wife to receive his survivor annuity benefits, but the court did not award her survivor annuity benefits. Under Hopkins retirement prior to divorce would lock ex-wife into survivor annuity benefits. Wife's attorney says that his termination of employment was tantamount to retirement and locked in the wife as survivor beneficiary per Hopkins. Husband's attorney say termination and retirement are two different things and he has not yet retired and since the court did not award survivor annuity benefits to the wife she doesn't get them. I cannot find a clear definition of what "retirement" means. Hopkins can be found at https://scholar.google.com/scholar_case?case=9954117838131396049&q=hopkins+v+at+%26+t+global+information+solutions+co&hl=en&lr=lang_en&as_sdt=20003&as_vis=1 Thanks.

Thanks for your reply. From an actuarial point of view the cash balance part of a CB plan is normally much less than the computed present value of the stream of future payments in a traditional annuitized payout of a defined benefit plan. The problem of course is that the present value computation makes dubious assumptions with respect to COLA rates, the applicable discount rate projected far into the future, the age of the Participant's retirement, and the life expectancy of the Participant, and assumes sub silentio, that the Alternate Payee's will live at least until the death of the Participant in order to receive his/her share of the Participant's retirement annuity benefit during the Participant's life expectancy. So for the Alternate Payee the choice is to take a share of the cash balance that may prove to be less (if the Participant exceeds his life expectancy ) or more (if the Participant dies before his projected life expectancy or if the pension plan fails and falls under the trusteeship of PBGC), or take a chance that the Employer will survive and thrive and that the Participant will live a long and healthy life and move up to become a senior executive with a far greater pension annuity than expected . By separate interest I am talking about taking 50% of the marital portion of the Participant's defined benefit (not the cash balance value) accrued during the marriage and assigning it to the Alternate Payee as his/her sole and separate property interest, with all of the requirements including adjustment of the amount paid per the life expectancy of the Alternate Payee (rather then the life expectancy of the Participant) , compliance with the age 50 rule, inclusion of early retirement subsidies - or not, etc. I guess another related question might be whether or not a separate interest awarded to the Alternate Payee carries with it the right of the Alternate Payee to take the cash balance of his/her separate interest rather than an annuitized payout? In all events my research confirms the options for shared and separate interest allocations, but nothing is said that about interplay, if any, with a cash balance plan. Maybe I am just overthinking the matter. Attached find a Memo prepared with respect to the decision to go with a shared v. a separate interest annuity, or to ask for a lump sum payment, and the Gillmore approach and the financial and practical considerations and consequences. David Shared v. Separate v. Lump Sum v. Gilmore, and more.pdf

If a company changes from the ERISA qualified defined benefit plan to a cash balance plan, the Participant and the Alternate Payee have the option of taking an annuitized payout as a shared interest allocation, if, as and when, using a coverture fraction based formula, or as a lump sum from the cash balance component. See https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/fact-sheets/cash-balance-pension-plans. But the question I have is whether there is an option under a cash balance plan for the Alternate Payee to take separate interest allocation? The attached article seems to say "yes". What do you think? David AdministeringCashBalancePensionPlanstoConformWithQDROs.pdf

I should have been more precise in my language. What I meant to say is that judges will sign pretty much anything the parties put in front of them by consent, whether it's an original QDRO or an Amended QDRO or a Revised QDRO or a Supplemental QDRO. An Amended, Revised or Supplemental could revise the amount to be paid "less amounts previously transferred by the Plan pursuant to a previous QDRO enterd by the Court on ____________, 2017." There is no reason why a second original QDRO could not address account balances remaining in the Participant's account after funds were removed via another/previous QDRO. A second QDRO could be used to recover "alimony" or "child support" arrears rather that an allocation or marital property. To my knowledge, neither ERISA or state laws require that only one QDRO be used per case. Creativity is required. In cases where the Alternate Payee wants to take a taxable distribution rather than a rollover, I have on a number of occasions used two QDROs for the purpose of having one transfer made in the year in which the divorce is granted and the second transfer made in the following year, thereby reducing the amount paid in each year and lessening the tax burden by keeping the Alternate Payee in a lower tax bracket in each year. In Maryland and in many other states a QDRO is viewed as an enforcement tool, like a garnishment or an attachment. There is no limit on the number of garnishments or attachments that a judgement creditor can file, nor is there any limit to the number of QDROs that can be issued. See The Rohrbeck case at - https://scholar.google.com/scholar_case?case=6821439692749566017&q=rohrbeck&hl=en&lr=lang_en&as_sdt=20006&as_vis=1 You might want to review these 6 cases that cite Rohrbeck. https://scholar.google.com/scholar?q=+Rohrbeck+v.+Rohrbeck,+318+Md.+28,+566+A.2d+767,+774+(1989)&hl=en&lr=lang_en&as_vis=1&as_sdt=fffffffdffffe04 Note that many courts have been creative in issuing nunc pro tunc QDROs that could modify the original QDRO. If it's by consent, this should not be a problem. As far as the court's jurisdiction is concerned, I have seen cases where courts have used the statute of limitations to preclude the collection of pension or retirement benefits via a QDRO. But other courts have said that the S/L does not begin to run until the payment of benefits is due, so, if you are dealing with a defined benefit plan, the Participant's benefit commencement date can be years after the divorce and the S/L does not begin to run until that time. I have prepared D/B QDROs for cases where the divorce was as far back as 1982. I have never had a problem (except for the Court's ability to locate in the file).

In 32 years of preparing QDROs I have never seen a judge refuse to enter a Consent Amended QDRO. Most of the judges don't know what they are looking at anyway. If for some reason the law of the forum state will not permit the original divorce case to be reopened, then file a new case. There is nothing in ERISA that requires a QDRO to issue from the original divorce court. I have prepared plenty of QDRO for cases where the divorce was entered in another state, then enrolled in Maryland where I practice, and the QDRO was issued by the Maryland court. The amount left in the Plan account is available for transfer to the Alternate Payee via QDRO. It will be taxable income and 20% will be withheld (not sure if the Alternate Payee has the ability to opt out of withholding by checking Line 1 on W-4P). Since it's incident to the divorce ,the distribution will not be subject to the 10% early withdrawal penalty. Remember, you can discharge almost all of your obligations in bankruptcy, except for what you owe the IRS.

I have been told by at least 3 Plan Administrators that a QDRO transfer to an Alternate Payee cannot be rolled over into that Alternate Payee's own 401(k) Plan regardless of whether it is at the same Employer of the Participant or to another Employer for whom the Alternate Payee works. The attached, they say, applies only to a transfer from a one account in which a party is a Participant to another Plan in which that same party is a participant. They all say that the attached chart does not apply to QDRO transfers. I cannot cite the applicable Code or Regs. The exception is a TSP where, if both parties work for the Federal Government they will permit a rollover from the Participant's TSP account to the Alternate Payee's TSP account. IRS Rollover Chart.pdf

I was willing to afford you the benefit of the doubt and assume that you were not as big a schmuck as you appeared to be from reading your responses to my messages. But I was wrong. I wonder why the moderator of this message board has not removed you given your rude and unprofessional conduct. I am the founder and moderator of a listserv with over 1,460 family law attorneys here in Maryland. Nobody in the 8 years of our existence has ever posted the sort of offensive attacks you have made on me....someone you don't even know. Why would you be a member of this message board if your goal is not to help people who ask for assistance? To insult them? You are sorely lacking in people skills, a basic smart ass.

Thank you for "humouring" me. I take it you are originally from the UK. In your world as an actuary you live or die by the numbers. One plus one must always equal two. I am here to tell you from 52 years of practicing every aspect of family law that one plus one often equals 3.25. In most cases the outcome is inexplicable, illogical, unreasonable, and unfair. But it's just the way the law developed. We have an expression that trying to figure out what might happen in family court is like nailing Jello to the wall. Family lawyers know that their clients are going through a period of temporary insanity. The first topic we cover in mediation training are the emotions they experience and how to deal with them. The class makes a list - fear, deprivation, anger, pessimism, denial, defenselessness, disbelief, naivety, depression, weakness, dejection, abandonment, despair, powerlessness, isolation, rejection, ambivalence, dishonored, indecisive, guilty, gloomy, melancholy, despondent, frustrated, sadness, isolation, anxiety, seclusion, shame, spitefulness, relief, disillusionment, failure, grief, hurt, wounded, resentment, loss, insecurity, hopelessness, vulnerability, inadequacy, embarrassed, helplessness, humiliation, insulted, loneliness, tormented, vengefulness, misunderstood, disappointed, disgusted, exhausted, shocked, foolish, apprehensive, outraged, indignant, exasperated, rejected, discouraged, downhearted, disgraced, anguished, indignant, hostile, and just plain hateful. Add to that is the fact, for example, that 19 of the 26 Circuit Court Judges in my County here in Maryland (population 1 million+) did not practice family law, before becoming a judge, know almost nothing about pension and retirement issues or QDRO, and are for the most part unwilling to take the time to learn. They were prosecutors, criminal defense lawyers, insurance defense lawyers, lawyers who specialized in real estate, corporate, tax or administrative law. Whatever your qualifications as an actuary, your suggestion that the parties or a court can just work it out 13 years after the divorce shows a lack of experience with the real world of divorce law and litigation. I am reminded of a professor in college who pointed out that statisticians believe that if you put your left foot in ice water and your right foot in boiling water, on the average you're comfortable. You prepare present value computations that are speculative in every parameter - COLAS, discount rates, expected date of retirement, and life expectancies of the Participant and the Alternate Payee. In a case many years ago an actuary on the stand in court suggested that my client, age 55 with a history of 3 heart attacks, had a Government pension with a present value of approximately $500,000. This was based on the assumption that he would retire at age 65 and had life expectancy of whatever was indicated by the mortality tables he was using. I asked him if his mortality tables had a column for a 55 year old man with a history of 3 heart attacks. He laughed and admitted that he did not, that his tables were for the "generic man" and really did not apply to my client. The judge handed down the first "if, and an when" shared interest awards in our County, and the Legislature changed the law to make "if, as and when" the default. In all events your bottom line analysis is probably correct - wait until the Participant is 65 address the matter then.