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A little knowledge is a dangerous thing. So with that preface: >>It may be that the Participant had retired before the Plan received the QDRO and had elected a single life annuity. That is permissible in many non- ERISA qualified plans (e.g. all Maryland State Retirement and Pension System Plans) and the subsequent QDRO would not have been able to award a QJSA. I am purposely being loose with the language since in Maryland it would have been a Eligible DRO and the way to implement a survivor annuity would have been to select one of 4 statutory options. >>It may be that the Participant remarried and then retired before the QDRO as approved and his new wife became irrevocably vested in the survivor annuity benefit. There are plenty of cases on that situation. See, Hopkins v. AT&T Global Information Solutions at http://scholar.google.com/scholar_case?case=9954117838131396049&q=hopkins+at%26T+global&hl=en&as_sdt=2,9 followed by the 5th Circuit in 1999 Rivers v. Central and South West Corporation at http://scholar.google.com/scholar_case?case=2296953953561556363&q=rivers+central+and+south+west&hl=en&as_sdt=2,9: “This Circuit agrees with the Fourth Circuit's decision in Hopkins and adopts its rationale. Rivers failed to protect her rights in Franklin's pension plan by neglecting to obtain a QDRO prior to Franklin's retirement date. Consequently, Franklin's pension benefits irrevocably vested in Mrs. Franklin on the date of his retirement and Rivers is forever barred from acquiring an interest in Franklin's pension plan.” To the same effect see Dahl v. Aerospace Employees’ Retirement Plan, a 2015 case from the U.S. District Court for the Eastern District of Virginia (and cases cited therein) - https://scholar.google.com/scholar_case?case=3487596170773082469&q=dahl+v.+aerospace&hl=en&lr=lang_en&as_sdt=20000003&as_vis=1 Other cases following Hopkins are collected at: https://scholar.google.com/scholar?start=0&q="Hopkins+v.+AT%26T"&hl=en&as_sdt=20000006 See also Vanderkam v. PBGC, 943 F. Supp.2d, 130 (2013) setting forth a thorough discussion of this issue. And the 2015 case of Dahl v. Aerospace Employees’ Retirement Plan, No. 1:15cv611 (JCC/IDD), United States District Court, E.D. Virginia, Alexandria Division. >>It may be that the Participant was a police office, firefighter or corrections office in one of many plans where survivor annuity benefits are not available for FORMER spouses....only to current spouses. But if the QDRO was entered by the Court, and if a certified copy was received by the Plan, and it the Plan "qualified" the QDRO, that is, approved it (as they must have done since you received a portion of his retirement annuity) , and if none of the foregoing sort of problems existed, and if the Plan did not implement a QJSA for you, then you need to find a lawyer who can sue the Plan on your behalf. It is the job of the Plan to follow the instructions in the QDRO. The instruction to the Participant to elect a QJSA is tantamount to a direction to the Plan to make that election on his behalf. And if someone else is receiving the survivor annuity that you should have received, then you can sue that person under a number of theories including constructive trustee. See, e.g., Andochick v. Byrd, 709 F.3d 296 (2013), and a recent California case, In re: Marriage of Stine, No. A154972, Court of Appeals of California, First District, Division One, - Filed November 22, 2019, and Hennig v. DIDYK, Tex: Court of Appeals, 5th Dist., No. 05-13-00656-CV, (2014). Good luck.

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

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

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

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

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

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

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

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

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

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

Luke Bailey: 26 CFR 1.401(a)(3)(b)(1) does provide: "(b) No assignment or alienation - (1) General rule. Under section 401(a)(13), a trust will not be qualified unless the plan of which the trust is a part provides that benefits provided under the plan may not be anticipated, assigned (either at law or in equity), alienated or subject to attachment, garnishment, levy, execution or other legal or equitable process." But if you click on the link imbedded at the word "benefits", you get a reference to 26 CFR § 1.414(f)-1: "4) Benefits. The plan provides that the amount of benefits payable with respect to each employee participating in the plan is determined without regard to whether or not his employer continues as a member of the plan. If benefits accrued as a result of the participant's service with his employer during a period before such employer was a member of the plan, this requirement does not apply to the amount of those benefits, except that this requirement does apply to the amount of those benefits (i) which are accrued benefits derived from employee contributions, or (ii) which are accrued under a plan maintained by an employer prior to the time such employer became a member of the plan to which the requirements of this paragraph (a) are applied." A basic rule of statutory construction is that, if the legislature had intended to include alternate payees, they could very simply have said "alternate payees", and that the omission of those two words is evidence that they did not intend to preclude alternate payees from alienating their derivative benefits. And see 26 USC 1056(d)(1) providing that "Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated." And 26 USC 1056(d)(3)(A) providing: "Paragraph (1) shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order, except that paragraph (1) shall not apply if the order is determined to be a qualified domestic relations order. Each pension plan shall provide for the payment of benefits in accordance with the applicable requirements of any qualified domestic relations order." So it looks to me that they have abrogated ALL antialienation requirements with respect to a transfer pursuant to a QDRO. It is hard to argue that they only abrogated the antialienation provisions with respect to Participants while keeping such a restrictions on Alternate Payees, but failed to mention that simple fact. But, you say, the Alternate Payee's benefits are merely part of the Participant's benefit and logic dictates that they be treated the same. That may be true of a shared interest allocation, but not a separate interest allocation. But, you say, doesn't the Alternate Payee's share of the Participant's benefits terminate on the death of the Alternate Payee and cannot be assigned by the Alternate Payee to another beneficiary? Under FERS and CSRS the Alternate Payee/Former Spouse can leave her share to her estate (or others) per 5 CFR 838.237. And see this article at - https://corporate.findlaw.com/human-resources/transferring-the-alternate-payee-s-retirement-benefits-at-death.html#:~:targetText=In practice%2C this allows an,the alternate payee and participant. One of the most interesting observations in the above article is that "Although ERISA provides that an alternate payee under a QDRO is considered a beneficiary under the plan, nothing in ERISA prevents a plan from granting an alternate payee the same or similar rights as a participant." So why can't a Plan afford the Alternate Payee to provide for a survivor annuity as one form of alienation? The Shelstead case discussed in the above article was discussed by the Court of Special Appeals of Maryland in Eller v. Bolton at - https://scholar.google.com/scholar_case?case=14971316948354987133&q=eller+v.+bolton&hl=en&lr=lang_en&as_sdt=4,21&as_vis=1 In also discussed other cases where the question considered was whether an Alternate Payee can transfer benefits to a subsequent beneficiary. See, Divich v. Divich, 665 N.W.2d 109 (S.D.2003), and Seal v. Raw, 954 S.W.2d 681 (Mo.Ct.App.1997). The point, of course, is that the person who posted the query, who is in pay status, might be able to transfer a portion of his pension annuity to an Alternate Payee, who could then use that entitlement as collateral for a loan. N'est-ce pas? Suppose he is happily married and has no children, you ask? Well he could get divorced, get the QDRO approved by the Plan, and remarry his spouse. FRAUD!! A SHAM!! you indignantly proclaim. Not so. Read Brown v. Continental Airlines, Inc., 647 F. 3d 221 (5th Cir., 2011) https://scholar.google.com/scholar_case?case=4019345202025914766&q=brown+v.+continental+airlines&hl=en&as_sdt=20000003 one of my favorite cases. David

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

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

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

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

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

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

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

If you will provide the name of the Plan somebody in this blog might be able to respond to your question. You have suggested that your husband's plan offers a 100% survivor annuity plan with a pop-up. The term "pop-up" is most often found in state, county or municipal defined benefit plans, not in ERISA qualified plans. On the other hand most state, county or municipal plan do not provide an option for a separate interest allocation of benefits. And most non ERISA plans do use the term QPSA or QJSA. They are almost always limited to a shared allocation payable if, as and when the Participant retires and starts to draw his pension. So it is hard to understand what you are talking about. If your stipulation said "shared", then that's the deal you made and you are stuck with it. It doesn't matter if your lawyer was competent of not, that is the deal you are made. It may be the best option. But it may not. But in all events you cannot insist that it be changed to a separate interest allocation. There are pros and cons to each. See the attached Memo - Shared v. Separate - that also discusses the other attached Memo that addresses your right to ask that he be required to pay you your share of his retirement when he is eligible to retire even though he chooses NOT to retire. See the attached Memo - Gilmore Approach. The law varies from state to state. Tell me where you case is pending and perhaps someone can direct you to a competent practitioner in your jurisdiction. David Goldberg Gillmore Approach - 5-23-19.pdf Shared v. Separate v. Lump Sum v. Gilmore, and more.pdf

There a 4 options for accomplishing what you seek to determine. (i) Determine the value of the account at the date of marriage and compute gains and losses to bring it forward to the date of divorce. This will give you the non-marital portion. The balance will be the marital portion. It is sometimes not possible to find the records of the value at the date of divorce, and many Plan Administrators and most IRA custodians do not have the ability to bring these balances up to date for you. Some Plans like TIAA-CREF and TSP have detailed historical records of the monthly changes in the value of their respective investment options. (ii) In a shorter term marriage, pull the tax returns and W-2s and determine the contributions made during the marriage and compute gains and losses to bring them forward to the date of divorce. The same problems exist as are outlined in “(i)” above. (iii) Take the value of the account as of the date of marriage and use an average of, e.g. the Dow Jones Industrials, the NASDAQ, the S&P 500 and the Moody’s bond rate as of the date of marriage and as of the current date. Apply the yearly percentage changes to the value at the date of marriage and the result is the non-marital share. The balance is the marital portion. The same approach can be taken with respect to the amounts contributed each year from the date of marriage to the date of divorce. (iv) Use the (Maryland) - Bangs/Pleasant formula. Multiply the account balance at the time of divorce by the coverture fraction where the numerator is the number of months during which the party made contributions to his/her IRA or 401(k) during the marriage, and the denominator is the total number of months during which the party made contributions to his/her IRA or 401(k) as of the date of divorce. The result will be the marital portion to be divided. This has been criticized as unreliable since: (i) it assumes equal contributions to the Plan during the entire period set forth in the denominator of the coverture fraction, and, (ii) it assumes equal increases/decreases in value of the Plan assets during the entire period set forth in the denominator set forth in the coverture fraction; and, (iii) it fails to adjust for inflation/deflation from the date of marriage to the date of divorce; and, (iv) it assumes that the mix of investments remains the same. But, it’s better than nothing. And it better than, (i) concluding that premarital and post-marital contributions to the account resulted in a commingling of funds that renders the entire account as “marital”; or, (ii) that all post marital increases or decreases in value from the date of marriage forward should be disregarded. So the problem is the assumption that "earned during the marriage" has a meaning and is easily capable of determining. To see the problems that can be created by using option (iv) to allocate defined contribution plan benefits, see Granger v. Granger, No. 20140196-CA, Court of Appeals of Utah (2016) that you can find at: https://scholar.google.com/scholar_case?case=1223294215352864252&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt. And see Dutille v. Dutille, 52 Misc.3d 303, 28 N.Y.S.3d 813, 2016 NY Slip Op 26109 (2016) that you can find at - https://scholar.google.com/scholar_case?case=13824837295212223034&q=dutille&hl=en&as_sdt=4,21,33 In a 2018 decision in Kabasan v. Kabasan - https://scholar.google.com/scholar_case?case=13034137486072388695&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt the Court of Appeals of North Carolina held that the use of the coverture fraction formula by the trial court was not error when determining the marital portion of the husband’s TSP, an annuity, and an IRA. And the recent Maryland case, Reynolds v. Reynolds, 216 Md. App. 205, 85 A. 3d 350 (2014), noteworthy in that it discusses the proof necessary to demonstrate the increase in the value of the non-marital share from the date of marriage to the date of divorce. See also a recent case from Virginia, Mann v. Mann at: http://scholar.google.com/scholar_case?case=2795450834253640273&q="marital+portion"+401(k)+%2Bcommingled&hl=en&as_sdt=ffffffffffffe04 The basis of this decision was that passive appreciation of non marital property is itself non marital. Bottom line is that you need to give the Plan a dollar amount (or percentage) as of a Valuation Date and that dollar amount will be adjusted by gains, losses and investment experience from that Valuation date to the date of rollover or distribution, as the case may be, to the Alternate Payee. See attached re: Gains and Losses - Gains, Losses, Ownership Interest and Constructive Trust

For what purpose do you need to define "vested balance"? For purposes of allocation a defined contribution account in connection with a divorce?

Thanks for your comments. I regularly lecture my colleagues about the dangers of using model QDROs and send them excerpts from Gary Shulman's treatises. The lawyer on the other side is a very well regarded QDRO practitioner who actually creates pension plans and acts a TPA for some of them. She ought to know better. When she speaks I usually listen. I thought I was going crazy. And while that may be true in other contexts....not this time. The problem is the cost of taking the Plan and/or Fidelity to Court. Thanks to all of you. David

Since my Memo's keep getting truncated (are we run by Twitter?), I have attached a portion of my post in PDF. Goldberg Memo.pdf And here is my last paragraph.... Bottom line is that the Alternate Payee in the case at issue can be awarded a share of the retirement annuity via a QDRO, but the 75% survivor annuity for the Alternate Payee cannot be changed except by a waiver, and I think that ship has sailed. It might be possible to mollify the ex-husband in this case by reducing the Alternate Payee's share of the retirement annuity to a percentage less than 50% in order to allocate 1/2 of the cost of the survivor annuity to her. That would be fair. David Goldberg