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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.

If you knew the full back story you might side with the Participant's desire not to give his ex-wife a dime and to take full advantage of the trial judge's lack of understanding of how pension law works and the incompetence of the ex-wife's attorney. So those of you are judgmental and who fight the facts are doing so with a total lack of appreciation for what motivates the parties in hotly contested divorce case. Wishing that the parties would be reasonable is not a solution. You cannot look at QDRO issues in isolation. It is often the case that the parties will agree, for example, that the Alternate Payee will pay for the cost of the survivor annuity, only to find out that the Plan will not allocate that cost but will merely take it "off the top". What do you do then? Courd the parties in this case sue the Plan Administrator or Fidelity as TPA? In Federal Court or in the local State Circuit Court? Incur enormous legal fees and years of delay? With an uncertain outcome? Note that I don't represent either party. I am just the poor slob asked to prepare a QDRO. I had no involvement anything that preceded the request that I get invoved. The question is whether or not the trial judge who ordered the Participant to pay $XXX from his defined contribution plan intended to limit the source of the payment to the Plan benefits, or intended to impose the obligation to pay on the Participant with the Plan benefit being merely the source of the payment. I suspect the latter. In this case decided before Howell v. Howell, Dexter v. Dexter, 105 Md.App. 678, 661 A.2d 171 (1995) [DOA after 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. The CSA accepted the fact that the wife could not receive a portion of the husband’s VA disability payment and decided the case solely on a breach of contract basis. Maybe the solution is the Gilmore approach. See attached Memo. There are many cases where people contract for an outcome that is impossible to accomplish by reason a mutual mistake of law or fact. There are cases in my jurisdiction where both parties agree that the court made a mistake and the court could not fix it. See Leadroot v. Leadroot, 147 Md. App. 672, 810 A.2d 526 (2002). So lighten up. You have all concerned by belief that while I should be able to prepare a shared interest QDRO that complies with ERISA, the folks at Fidelity are the problem. The Alternate Payee is going to have the wait until the husband reaches age 65 and then sue the Participant for the payment sue regardless of the source of the payments - from the Participant's pension benefit if he is in pay status, or from the Participant's pocket. David Gillmore Approach - 5-23-19.pdf

The divorce was granted in another state 13+ years ago and did not reserve jurisdiction to modify the Judgment of Divorce with provided unequivocally for a shared allocation of benefits. Even without the benefit of your vast wisdom on the subject, my first suggested solution was to implement a separate interest allocation of the Participant's benefits. He said, "No" for the reasons set forth below. End of discussion. The first thing we learn in law school is "don't fight the facts". You cannot take a shared interest agreement and turn it into a separate interest without making major changes - (i) the fact that a shared allocation is based on the life of the Participant while a separate allocation is based on the life of the Alternate Payee; (ii) the fact that if the Alternate Payee predeceases the Participant, the amount she is receiving will not revert to the Participant; (iii) the fact that the Alternate Payee can commence receive of her benefit prior to instead of contemporaneously with the Participant when the age 50 rule is met; (iv) the fact that in a separate interest allocation the Alternate payee will not benefit from the Participant's future promotions or increases in benefits (very much like the NDAA 2016 amendments applicable to divorces entered after December 23, 2016, with respect to a Military retirement that takes place after December 23, 2016 (frozen benefit treatment); (v) the fact that in my case, where there are no survivor annuity benefits, the Participant in a separate interest allocation will not have the ability to name a new spouse to receive a full survivor annuity, and more. When I present CLE seminars under the auspices of my State and County Bar Association, suggest that my students follow a shared (one canoe) v. separate (two canoe) analysis: (i) Use shared (one canoe) when - > The participant is in pay status, or > It’s a government plan - CSRS, FERS, Military, MSRPS, where there is no option for a separate interest, or >The case is litigated and you failed to opt out of Family Law Article 8-204(b)(2), or >The Participant wants a reversion upon Alternate Payee’s death, or >The Post-retirement benefit survivor annuity benefit “cost” is not a factor, or >The Alternate Payee does not care about naming a survivor annuitant of his/her share, or >The Participant is not concerned that Alternate Payee will share in future increases, raises, supplemental benefits and subsidies (even though such increases in benefits will be offset by a reduction in the coverture fraction as post martial time increases the denominator), or >The Alternate Payee wants a share of future increases, raises, supplemental benefits and subsidies (even though such increases in benefits will be offset by a reduction in the coverture fraction as post marital time increases the denominator). (ii) Use separate (two canoes) when - >The Participant is not in pay status, or >It’s a defined contribution plan, an individual account plan (or hybrid plan), or an employer sponsored defined benefit plan, or where the plan requires selection of a separate interest allocation; or >The Alternate Payee wants an early payout (see Age 50 Rule discussed elsewhere), or >The Alternate Payee wants to name beneficiaries, or [Note that most defined contribution plan do not permit the Alternate Payee name a beneficiary to receive her share of the Participant’s benefit following her death.] >The post-retirement survivor benefit cost is more than the actuarial cost for payout over the Alternate Payee’s life expectancy; or >The Participant is concerned that Alternate Payee will share in future increases, raises, supplemental benefits and subsidies, (even though such increases in benefits will be offset by a reduction in the coverture fraction as post martial time increases the denominator), or >Alternate Payee does not want to share in future increases, raises, supplemental benefits and subsidies, (even though such increases in benefits will be offset by a reduction in the coverture fraction as post martial time increases the denominator). If this were as easy as you seem to suggest, I would not be on this blog looking for somebody who has a good solution. I haven't heard that yes and suspect that there is not solution. It may be that the Alternate Payee will just have to wait until the Participant retires and, after he has failed to make payments of her share (the underlying obligation is HIS - it is implemented by the Plan) sue, get a judgment and try to collect it. And she will have to do this periodically since the court is not going to grant a judgment for payment not yet due and with respect to which there is not a default.

Mike Preston: In my previous responses to messages posted by other members I stated: "We are not dealing with a separate interest situation. The Judgment of Divorce does not award a separate interest and to do so would effectively create a survivor benefit for the Alternate Payee that would continue beyond the death of the Participant. And a separate interest to the Alternate Payee would not revert to the Participant if the Alternate Payee predeceases. Survivor benefits were not awarded. The Participant will not agree to a separate interest allocation so that is not an acceptable option/workaround." And I set forth of the very simple language of the relevant paragraph of the QDRO that: "The Alternate Payee's shared interest benefit payments shall commence on the date on which the Participant reaches 65 or on the closest payment date to his age 65, and will take prospective effect from and after that date." In have had many Plan Administrator qualify a QDRO where the Participant is in pay status at the time the QDRO is submitted, and where commencement of the Alternate Payee's share is deferred until a certain date or the happening of an event. In this case the Participant is not in pay status and may very well elect to commence his benefit until after age 65 or not at all. To spite the Alternate Payee? Maybe. But you don't know all the facts and should not be judgmental. This is not something I have encountered in my 31 years or preparing QDROs. I have researched the matter in Shulman's treatises and other texts dealing with QDROs, on the EBSA website, and on Westlaw, all without success. IRC 414(p)(2) sets forth what needs to be in an acceptable QDRO as follows: "(2) Order must clearly specify certain facts: 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." It would seem logical that the number of payments or periods to which such order applies could be defined by setting forth a starting date (in this case, the Participant's age 65), and an ending date (death of Participant or death of the Alternate Payee as set forth elsewhere in the QDRO). But no luck in finding a case or regulation saying that. David

According to the Judgment of Divorce, the Alternate Payee does not get her payment from the Participant's defined benefit plan until the Participant reaches his 65th birthday. But if the Participant is not in pay status at that time then there is no benefit to be paid to the Alternate Payee. An Alternate Payee in a shared payment allocation cannot get her share before the Participant starts to receive his benefit. In this case the Participant may choose never to commence his benefits and that will deprive the Alternate Payee of her share. If you want to be judgmental, go ahead, but it doesn't solve the problem. The question is that the TPA will not accept this language in a QDRO : "The Alternate Payee's shared interest benefit payments shall commence on the date on which the Participant reaches 65 or on the closest payment date to his age 65, and will take prospective effect from and after that date." The TPA says that since the Participant is not in pay status, this creates an uncertain start date and that the QDRO must say that the Alternate Payee will get her share when the Participant starts to get his share. But that is not the deal. If the Participant wants to commence receipt of his benefit at age 60, the Alternate Payee is not to start to receive her share until the Participant is 65. So I cannot do what the TPA wants me to do. So the question is how to word the QDRO so that it expresses the intention of the parties and is acceptable to the TPA? DSG

"Shared payment" and "separate interest" are defined at - https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/publications/appendixddraftingaqualifiedqdro ...and at https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/qdro-overview.pdf - see attached. In my neck of the woods phrase "shared interest" and "shared payments" mean the same thing. We are not dealing with a separate interest situation. The Judgment of Divorce does not award a separate interest and to do so would effectively create a survivor benefit for the Alternate Payee that would continue beyond the death of the Participant. And a separate interest tot he Altenate Payee would not revert to the Participant is the Alternate Payee predeceases. Survivor benefits were not awarded. The Participant will not agree to a separate interest allocation so that is not an acceptable option/workaround. The whole point of my post was that Fidelity has NOT qualified the QDRO for the reasons stated. And I am fully familiar with the problems created by Fidelity. Fidelity is not the "Plan Administrator", it is the "Third Party Administrator". Normal retirement age is 65. Early retirement age is 55. Participant is about 56. He no longer works for the sponsoring company but has no plans to "retire" and commence receipt of his benefits. The parties expect that when the Participant reaches age 65 the Alternate Payee will start to receive a fixed amount of $XXXX a month from the Participant's defined benefit plan retirement annuity benefit. But there is no guarantee that the Participant will elect to commence benefits at or before age 65. This expectation is based on the language of the Judgment of Divorce. Fidelity says that the commencement date is therefore uncertain, that the Alternate Payee's benefit can only commence at the same time the Participant's benefit commences. The Participant is not in pay status and may not elect commencement prior to age 65...many years away. I have not encountered this situation like this in 31 years of preparing QDROs. I cannot find any law or regs that addresses an uncertain retirement date, even though EVERY, "if, as and when" QDRO is an uncertain date. In this case the Participant does not want to retire prior to his age 65 and have the Alternate Payee start to get her share prior to his age 65. David QDROs Booklet from DOL.pdf

Husband in his mid 50s no longer working for his former employer. He has a defined benefit plan with them but has not yet elected to commence his benefits although he is eligible to do so. In the Judgment of Divorce, the trial court ordered that the wife will receive a fixed monthly payment from the Plan starting when the husband reaches age 65. This is incorporated into a QDRO - shared interest allocation, and sent to the Plan Administrator for approval. The is no option in the Plan to pay an Alternate Payee prior to the Participant being in pay status. Note that the husband may decide not to elect to commence his benefits at age 65. There is nothing in the Judgment of Divorce or the QDRO requiring him to do so, and he refuses to say that he will do so, and may not. Note that neither the Judge or the two attorneys (NOT ME) had a clue what they were doing. Note that survivor annuity benefits are not involved. Note that the parties are not amicable. The Plan Administrator, acting through its Third Party Administrator, Fidelity, says that the commencement of an Alternate Payee's benefits must coincide with the commencement of the Participants benefits and cannot be qualified if the conditioned is based on his age, or her age, or at a fixed date, because that makes the commencement date uncertain if he has not actually commenced his benefits. I have prepared QDRO where, for example, the husband is 65 and retired and the wife is 55 and still working, and both have DB retirement plans. They agree on reciprocal if, as and when payments to the other, but such payments shall not commence until the wife reaches age 65. QDROs accepted. Any thoughts, workarounds. Don't suggest alimony since husband will say no, and because that TCJA of 2017 has made the payment of alimony non-deductible by the payor and non-taxable to the payee, so there would have to be a reduction in alimony to account for his lost tax benefit. Thanks, David