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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

This firm keeps popping up and is highly rated online. I don't know them and cannot comment. But give them a call. If they cannot help they should be able to refer you to someone who can. https://www.petroskelaw.com/long-island-qdros-lawyer/

I will get back to you in a day or so.

If you tell me in what city and state you live I will see if I can find someone to help you. David

I don't understand who you are. You say in the first sentence that the "Participant was a non-union truck driver". Are you the Participant? If the QDRO was approved by the Plan Administrator and is still sitting in the 401(k), you don't need a financial planner to roll over the money. You would just contact the Plan Administrator and ask how they handle that. Generally they will have a form for you to fill out telling them where they are to send the money. Normally that will be an IRA account, but if you have an existing 401(k) you can roll the money into that existing IRA. The rollover transfer will be tax free. You will also have the option to request a taxable distribution, that is, money paid directly to you instead of a rollover. You will pay taxes on the rollover, but no 10% early withdrawal penalty. The Plan will withhold 20% for Federal tax purposes and that amount will be on the tax returns filed for the year in which you received the distribution. Another issue is whether you get only the amount listed in the QDRO, or do you receive gains, losses and investment experience on your share from the date of the Agreement (if any) or the date of the Judgment of Divorce through the date the funds are transferred to you by rollover or distribution. If this is covered in the QDRO, that's good news. If not, there is plenty of law that says that an adjustment for gains, losses and investment income is implicit. See attached. The next question will be whether the Plan Administrator can track those gains, losses and investment experience. Most 401(k) Plan can do so, but some limit how far back they can go. Good luck. David Goldberg Gains, Losses, Ownership Interest and Constructive Trust.pdf

Is this a QDRO for an ERISA qualified plan? Or are you using "QDRO" as a generic term? There are about 980,000 pension and retirement plans in the US. Most are ERISA qualified, but there are thousands of Federal, State, County and Municipal plans, and International agency plans as well, that are not controlled by ERISA. So it would be helpful if you would identify the Plan you are dealing with - full name please (Lockheed has 25+ plans and a few are not qualified under ERISA but the company chooses to enforce them as if they were and even used ERISA lingo.) Whether it's a defined benefit plan or a defined contribution Plan, either (i) the estate of the intended Alternate Payee will need to make a claim for pension or retirement benefits not taken by the decedent; or (ii) you will have to file an interpleader action, deposit the unclaimed retirement benefits into the registry of the court, and let the parties fight it out.

1) All references are to Ohio jurisdiction besides ERISA; WE DON'T TALK ABOUT SPOUSES OR EX SPOUSES. THE PROPER TERMS TERMS ARE PARTICIPANT AND ALTERNATE PAYEE. 2) Divorce of 20 years was finalized in 2007 with each waiving rights to each others pension;survivor rights were not stipulated in decree; SURVIVOR BENEFITS UNDER ERISA DO NOT SURVIVE THE DIVORCE UNLESS A QDRO IS SUBMITTED TO THE PLAN ADMINISTRATOR. A QDRO WILL NOT BE SIGNED BY THE COURT UNLESS IT IS AUTHORIZED BY THE AGREEMENT OF THE PARTIES OR WAS ORDERED BY THE COURT IN THE DECREE OF DIVORCE. IF BOTH PARTIES WAIVED CLAIMS, THEN THERE ARE NO SURVIVOR BENEFITS TO BE AWARDED. IF SURVIVOR BENEFITS ARE NOT ADDRESSED IN THE DIVORCE DECREE, THEN THEY ARE NOT AWARDED. 3) Ex husband passed in July 2018 with exspouse naming me as beneficiary for all benefits including 401k, pension, etc; WHO IS EX SPOUSE? THE DEAD PARTICIPANT? WHERE ARE YOU NAMED AS BENEFICIARY? IN THE PLAN BENEFICIARY DESIGNATION? WAS THE PARTICIPANT RETIRED AT THE TIME OF HIS DEATH? WAS HIS RETIREMENT ANNUITY BEING REDUCED BY THE ACTUARIAL COST OF PROVIDING A SURVIVOR ANNUITY? THIS IS NOT AN UNCOMMON EVENT, BUT THE RULE IS THE SAME - A PARTICIPANT FAILS TO CHANGE HIS/HER BENEFICIARY. IF YOU WERE NOT AWARDED THE SURVIVOR ANNUITY YOU DON'T GET IT. IF HE DIED BEFORE RETIREMENT, THEN THERE IS NO POST RETIREMENT SURVIVOR ANNUITY, ONLY PRE-RETIREMENT BENEFITS THAT ARE USUALLY RATHER MEAGER. 4) Former employer refuses to provide application for survivor benefits stating that since ex was not married at time of death, there are no survivor benefits to be paid and the plan does not allow for payments to dependent children (two children-currently 15 and 21); SOUNDS RIGHT. 5) In December 2018, I was appointed the administrator of estate in order to resolve estate on behalf of children and subsequently requested copy of employment file. Employer responded with an incomplete file and has failed to respond to subsequent requests; 6) It is my understanding that if our domestic court judge approved a QDRO designating me or children as estate designated survivor then former employer would be required to honor QDRO. "IF" IS A BIG WORD. ON WHAT BASIS WOULD THE COURT APPROVE THE QDRO LONG AFTER THE DIVORCE IF BOTH PARTIES WAIVED THEIR RIGHTS? QDROS DON'T PROVIDE SURVIVOR BENEFITS TO CHILDREN. THEY EXIST AND ARE DESIGNED TO TRANSFER PENSION BENEFITS (RETIREMENT AND SURVIVOR ANNUITY BENEFITS) BETWEEN SPOUSES IN CONNECTION WITH DIVORCE PROCEEDING. IF THERE ARE BENEFITS PAYABLE TO THE CHILDREN, THEN THAT WOULD BE UNDER ANOTHER SECTION OF THE PLAN HAVING NOTHING DO TO WITH QDROS. However, I do not know how to proceed on unraveling and pursue a claim on behalf of myself or estate. I know that I need an attorney but I dont know if I need an ERISA, domestic court or probate attorney or all of the above. YOU NEED TO FIND A LAWYER THAT UNDERSTANDS ERISA. THE FIRST THING YOU NEED IS A COPY OF THE PLAN. DON'T RELY ON THE FACT THAT THE PARTICIPANT FAILED TO REMOVE YOU AS THE BENEFICIARY OF THE SURVIVOR ANNUITY. ALL OF THE ABOVE WILL NOT APPLY TO THE 401(K). IF THE PARTICIPANT NEVER REMOVED YOU AS BENEFICIARY OF THE 401(K) YOU MAY BE ENTITLED TO RECEIVE THE ACCOUNT BALANCE. OR IT MAY PASS TO THE PARTICIPANT'S ESTATE AND PASS TO HIS TESTAMENTARY BENEFICIARIES UNDER HIS WILL, OR, IN THE ABSENCE OF A WILL, ACCORDING TO THE LAWS OF INTESTACY TO HIS STATUTORY HEIRS. IT SHOULD ALL BE COVERED IN THE PLAN DOCUMENTS. Any guidance would be appreciated. Thank you Survivor

I didn't say if the ex-spouse is the Participant or the Alternate Payee. I will assume the ex-spouse is the Participant. If it these are ERISA qualified plans, you can submit a post mortem QDRO and it will be entered per the Pension Protection Act of 2006, sent to the Plan Administrator, and be enforceable with respect to the 401(k) and the survivor annuity, if any, provided in the defined benefit plan. David

1. Some states have statutes of limitations with respect to submitting QDROs. 2. Some states have statutes of limitations that don't apply if the Judgment of Absolute Divorce reserves jurisdiction to enter QDRO. 3. In an ERISA defined benefit plan if the Participant remarries and retires, the new spouse will receive the survivor annuity benefit and the former spouse will lose that benefit. 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=11696898122265878951&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt Other cases following Hopkins are collected at: http://scholar.google.com/scholar?q=%22Hopkins+v.+AT%26T%22+divorce&btnG=&hl=en&as_sdt=20000006 See also Vanderkam v. PBGC, 943 F. Supp.2d, 130 (2013) setting forth a thorough discussion of this issue. There are multiple outcomes depending on the state where the Judgment of Divorce was entered. In Maryland, for example, a QDRO is an enforcement tool, like a garnishment or an attachment and can be entered at any time. It if blatant malpractice for the attorney for the Alternate Payee not to submit the QDRO to the court at the time of the final hearing and to make sure it is entered and a certified copy sent to the Plan Administrator immediately after the divorce is granted.

Here is what a comprehensive QMCSO should look like. Use it as you deem appropriate. QMCSO - 01-07-12 in Word.doc

Your question is unclear. We don't value QDROs. We value defined benefit plans in most cases using the PBGC 4044 discount rates at https://www.pbgc.gov/prac/interest/ida. But we also have to assume a COLA rate, assume the age at which the Participant will retire, and use mortality tables like the UP-94 to determine the Participant's life expectancy. These valuations are generally made by actuaries. I am not aware of any actuaries that use the 417(e) mortality rates. Attached find a publication from the American Academy of Actuaries dealing with actuarial mortality assumptions. In most cases the computation are very speculative and State law will prefer an if, and and when allocation of pension benefits via a QDRO. David Actuarial Mortality Assumptions.pdf

The Plan Administrator is required to pay out the 401(k) to the named beneficiary. See the Supreme Court case of Kari E. Kennedy, Executrix v. Plan Administrator for Dupont Savings and Investment Plan, 129 S.Ct. 865 (2009) which you can find at - http://scholar.google.com/scholar_case?case=9882751476618008595&q=kennedy+dupont&hl=en&as_sdt=4,60 The factual statement does not say that the former spouse has a QDRO giving her rights to the 401(k) - so she is out of the picture, and the existing spouse does not have any superior rights in the 401(k) just by virtue of her being the surviving spouse. But neither would matter since ERISA does not give a spouse an automatic right to be the beneficiary of a 401(k). The Plan documents may make the spouse the default beneficiary, but that would be superseded by the actual beneficiary designation. Don't confuse the ERISA requirements with respect to QJSA and QPSA that are applicable only to defined benefit plans. If you have it, please post statutory or case law providing that a still married widow (not former spouse) is entitled to be the beneficiary of a defined contribution plan when the decedent has named another beneficiary.

Employer provided life insurance is subject to ERISA. I only know of a few states that have laws permitting a trial court to order a Participant to continue to carry life insurance for the benefit of an Alternate Payee. See: Rollins v. Metropolitan Life Insurance Company, 863 F.2d 1346 (7th Cir., 1988) - Indiana Head v. Metropolitan Life Insurance Company, 449 N.W.2d 449 (Minn., 1990) Perkins v. Stuemke, 223 Ill.App.3d 839, 585 N.E.2d 1125, 166 Ill.Dec. 103 (1992) Life insurance in generally agreed to by the parties to guarantee that the obligations of the agreement are fulfilled, e.g. payment of alimony and child support, college for the children, and also as a potentially cheaper substitute for a defined benefit plan. (Premiums are usually less than the actuarial cost of a defined benefit plan and the proceeds are tax free.) I have spent 32 years involved in preparing QDROs and studying ERISA as well as the laws and regulations governing all of the other Federal, State, County, City, and International agency Plans. There are over 980,000 pension and retirement plans in the USA. About 960,000 are covered by ERISA. You would do well to advise your client to work out a settlement.

In fact my dear friend, a company provide life insurance policy IS covered by ERISA. A little knowledge is a dangerous thing.

You have wasted my time by failing to state the fact clearly and correctly. I have no idea what you are talking about. And it's pretty clear that you did not read the materials I sent to you. https://youtu.be/dFaG8sKS3eg

What legal research have you done? Let me know the state in which the QDRO was issued, and the state in which you now live.

SEE MY RESPONSES IN ALL CAPS BOLDED. For the argument sake, IF "IFS AND BUTS" WERE CANDY AND NUTS WHAT A MERRY CHRISTMAS WE WOULD HAVE wife 2 also has obtained a QDRO to split the asset. But plan administrator refuse to approve. Nothing in ERISA says QDRO cannot be done while still married. THAT IS TRUE, BUT: (I) A QDRO DISTRIBUTION TO A SPOUSE CAN PRODUCE ENORMOUS ADVERSE TAX CONSEQUENCES - FULL TAXES PLUS 10% EARLY DISTRIBUTION PENALTY IF THE PARTICIPANT IS UNDER AGE 59 AND 1/2; AND, (II) THE ENDEAVOR TO MAKE A TRANSFER TO A CURRENT SPOUSE UNDER THESE CIRCUMSTANCES WOULD BE VIEWED AS A FRAUDULENT CONVEYANCE TO AVOID THE CLAIMS OF CREDITORS (THE FORMER SPOUSE) AND WOULD BE SET ASIDE; AND, (III) IN MANY STATES, INCLUDING MY HOME STATE, THE COURT HAS NO AUTHORITY/JURISDICTION TO ISSUE A QDRO EXCEPT IN CONNECTION WITH THE ENTRY OF A JUDGMENT OF ABSOLUTE DIVORCE, THE ENTRY OF A QDRO FOR A CURRENT SPOUSE THAT IS NOT INCIDENT TO THEIR DIVORCE IS NOT POSSIBLE EVEN THOUGH THEORETICALLY POSSIBLE UNDER ERISA. Instead, it expressly says a spouse could have a QDRO. I don’t see any reason why she should give up her right. In addition, the property right came from marriage, not from QDRO, which merely a mechanism to split marital assets or pre-existing right to the property. THE CONCEPT OF MARITAL PROPERTY DOES NOT EXIST IN THE ABSTRACT. IT COMES TO LIFE AND EXISTS ONLY IN CONNECTION WITH A DIVORCE AND AT THAT POINT EVERYTHING THE PARTIES HAVE ACQUIRED DURING THE MARRIAGE IS ON THE TABLE TO BE DIVIDED INCLUDING PENSION AND RETIREMENT BENEFITS. IF THE HUSBAND AND NEW WIFE DIVORCE, THEN THE NEW WIFE WILL HAVE A CLAIM TO A SHARE OF MARITAL PROPERTY (OR COMMUNITY PROPERTY AS IT IS KNOWN IN 8 STATES). Also, preparation of QDRO requires a basis. And one of the limitation is QDRO cannot ask for more than husband deserves. I DON'T KNOW WHERE YOU GET THIS. THE COURT ISSUING THE QDRO DECIDED WHAT THE FORMER SPOUSE WAS ENTITLED TO. IF YOU WANT TO CHALLENGE IT GO BACK TO THAT COURT. IF THE HUSBAND'S THEORY IS THAT YOUR NEW WIFE HAS SOME INTEREST IN THE 401(K) PLAN, YOU ARE GOING TO LOSE. Thus, husband has no right to his wife’s property and ex cannot have more that what husband has. NICE THEORY, BUT UNTRUE. Therefore, protection of wife 2’s interest fully comply with ERISA. WRONG. NEW WIFE HAS NO INTEREST, ONLY AN EXPECTANCY AS A BENEFICIARY IF THE HUSBAND DIES, AND IN MOST STATES THERE IS NO PRESUMPTION THAT IN THE EVENT OF A DIVORCE THE INTEREST OF THE HUSBAND WILL BE HALF OR ANY PARTICULAR PERCENTAGE. AND IN MOST STATES THE COURT IS NOT EVEN REQUIRED TO RECOGNIZE OR AWARD A MARITAL INTEREST OR RECOGNIZE A NON MARITAL INTEREST. Further, if you argue wife 2 has no right to the 401k, then we are getting into the area of constitutional property rights and equal protection. After all ERISA never says that wife 2 has only survivorship rights, but quite the opposite. EVEN IF WHAT YOU SAID HAS MERIT, WHICH IT DOES NOT, FIRST IN TIME IS FIRST IN RIGHT. THE FIRST LENDER WHO FILES A DEED OF TRUST/MORTGAGE AT THE COURTHOUSE HAS A FIRST CLAIM ON THE PROCEEDS OF THE SALE OF THE UNDERLYING PROPERTY. THE SECOND LENDER WHO FILES A SECOND DEED OF TRUST/HELOC STANDS BEHIND THE FIRST PARTY. IN YOUR CASE IT LOOKS LIKE THE EX-WIFE GOT TO THE COURTHOUSE FIRST SO THERE IS NOTHING LEFT FOR THE 2ND WIFE NO MATTER THAT THEORY YOU WISH TO PUT FORTH.

You are fighting a losing battle using concepts that have no application to how alimony arrears are collected using QDROS. Attached find a publication from the DOL. You will find that when a Plan Administrator receives a QDRO and is making a determination of whether to approve ("qualify") the QDRO: "Based on the foregoing, when a pension plan receives an order requiring that all or a part of the benefits payable with respect to a participant be distributed to an alternate payee, the plan administrator must determine that the judgment, decree or order is a "domestic relations order" within the meaning of section 206(d)(3)(B)(ii) of ERISA -- i.e., that it relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child or other dependent of the participant, and that it is made pursuant to a State domestic relations law by a State authority with jurisdiction over such matters. Additionally, the plan administrator must determine that the order is qualified under the requirements of section 206(d)(3)(B)(i) of ERISA. It is the view of the Department that the plan administrator is not required by section 206(d)(3) or any other provision of Title I to review the correctness of a determination by a competent State authority that an individual is a "spouse," "former spouse," "child," "other dependent" or “surviving spouse” of the participant under state domestic relations law." So the Plan Administrator is not required to consider any of your arguments...and they don't because they don't want to get drawn into a lawsuit. Your belief that the new wife has an "interest" in the husband's 401(k) plan just because she is named as a beneficiary is not correct. At best she has a possible contingent future expectancy, and that does not rise to the level of an "interest". There is lots of case law on this subject. Sorry the news is bad, but the new spouse has no interest in the 401(k), does not own it, cannot shield her husband's interest in his 401(k) by claiming that she is being victimized somehow. It's his 401(k) money and is subject to being garnished by use of a QDRO. He is the bad guy in this story. He violated a court order and justice has now prevailed as it should. I would hope the judge would have assessed prejudgment interest against him and ordered him to pay the former spouse's (ex wife) legal fees as well. He deserves to be slammed and his ex-wife deserves to be made whole. Let this be a lesson - don't mess with the courts and disobey their orders. The consequences can be very unpleasant. QDROs by DOL.pdf

Sorry. Being the beneficiary means nothing in this context. It's like me having a savings account and my current wife is named as the beneficiary if I die. Creditors can attach the money in the account. There is no "equitable" interest involved. That's just not the way it works. The former spouse is owed alimony arrears. She can collect that amount by whatever means are available, including garnishing his salary, attaching his solely owned real estate or motor vehicles, or using a QDRO to grab the money in his 401(k) Plan. We do this all the time. Your assumption that wife #2 being named as a beneficiary of the 401(k) gives her some rights and can shield the 401(k) from being taken with a QDRO to satisfy an alimony obligation is just simply wrong. If it were true, how easy it would be for someone with an alimony obligation to protect his assets. Even if he transferred the 401(k) money to his new wife (paying the taxes and penalties if the distribution were prior to age 59 and 1/2) the ex-wife could go after the new wife on the theory that he fraudulently conveyed assets to the new wife to avoid the just claims of creditors. Unless there is some wrinkle in your state law to the contrary, the ex-wife will get the money in the ex-husband's 401(k). You didn't say what state the court proceedings took place, but it pretty much doesn't matter since this issue is a matter of Federal law that preempts state law. It's right there in the section I cited to you. You have used the terms "401(k)" and "QDRO" and I hope you are not just using those terms generically (like Kleenex when it's really Puffs or Scotties) and it is really some other type of plan that would not be covered by ERISA. Like I said before, he should have paid his alimony. I don't see any court taking his side. The equities are all on the ex-wife's side. I don't even think the new wife even has what we call standing to set up in court to many any arguments at all. She is not a party. If the husband takes out his 401(k) and transfers it to another 401(k) or to an IRA the new wife has no say whatsoever. It doesn't become the new wife's money until he dies. If the new wife and the husband remains married, she is not a "former spouse". Like I said...he should have paid his alimony.

You are mixing apples and oranges. The ex-wife is a "former spouse" for purposes of dividing the 401(k) as "property" and by using a QDRO. But ERISA allows a QDRO to be used by a "former spouse" to collect child support and alimony arrears. 26 U.S.C. §414(p) provides: “(p) Qualified domestic relations order defined - For purposes of this subsection and section 401 (a)(13)— “(1) In general “(A) Qualified domestic relations order - The term “qualified domestic relations order” means a domestic relations order— (i) which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan, and (ii) with respect to which the requirements of paragraphs (2) and (3) are met. “(B) Domestic relations order - The term “domestic relations order” means any judgment, decree, or order (including approval of a property settlement agreement) which— “(i) relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and (ii) is made pursuant to a State domestic relations law (including a community property law). The new wife is not a "former spouse" and had no rights to the 401(k) unless she becomes wife #2 or if the husband dies and she is his named beneficiary. And even if she becomes former spouse #2, if former spouse #1 gets the QDRO to the Plan (and it's approved) before former spouse #2, then former spouse #1 gets the money. Here is a link to an old but still valid article from an ABA publication http://www.americanbar.org/content/dam/aba/publishing/family_law_enewsletter/OrtizArticle.authcheckdam.pdf He should have paid his alimony. But there is more. Prior to 1-1-19, alimony was tax deductible by the payor and taxable to the payee. The TCJA of 2017 changed all of that and the payor cannot deduct the alimony and the payee need not pay taxes on it. Query: If the judgment for alimony was entered after 1-1-19, will the husband be able to deduct the alimony? Or will the payment be grandfathered under the old law? While the original alimony arose under a pre-TCJA court order (or Agreement), the new judgment did not arise until post-TCJA. There are no regs from the IRS available to answer this question. Another question is whether or not the ex-wife is entitled to interest on each and every payment not paid when due - that is, pre judgment interest. Attached find a Memo I prepared for a matter in Maryland. David Interest on Judgments for Unpaid Child Support and Alimony- 2017.pdf