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Perhaps I am missing something, but I don't see anything on the IRS website that requires a RMD from a cash balance plan. See https://www.irs.gov/retirement-plans/retirement-plans-faqs-regarding-required-minimum-distributions And if this is truly a cash balance plan the Participant would have an option to take his payments as an annuity. And a cash balance plan is a form of defined benefit plan per the DOL ESBA - https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/publications/cash-balance-pension-plans Some people online have suggested that RMD payments from a "cash balance plans" are really just annuitized payouts based on single line annuity actuarial tables after age 70 and 1/2.

Here is a handy IRS Rollover Chart. IRS Rollover Chart.pdf

Was a certified copy of the QDRO send to the Plan Administrator? Did the Plan Administrator not only acknowledge receipt of the QDRO but send a written determination letter saying that the QDRO was approved, that is, was "qualified"? Can you state the type of plan you are dealing with? That is, a defined contribution plan like a 401(k) that is normally rolled over to or distributed to the Alternate Payee immediately after being approved by the Plan Administrator? Or a defined benefit plan - a pension payable at retirement? The term "underfunded" is not one that is used with a defined contribution plan? But you said there was a lump sum contribution and that is consistent with a defined contribution plan, but could also be consistent with a defined benefit plan with a cash balance option. What happened after third year that generated the lump sum payment? Retirement or termination of employment? Are you even sure you were dealing with a Plan subject to ERISA? So you have not provided enough information for anyone to help you. Sorry.

I am pleased that David is so protective. My website is a www.familymediator.com. I have been a member of the Maryland Bar for 52 years and have prepared QDROs since 1988. Check me out.

It is not possible to answer your question unless I know which of the 35,000 or so pension plans you are talking about, and have the opportunity to read the QDRO and the letter that came from the Plan administrator. It is possible that notwithstanding the language of the QDRO the Plan only offers a 50% joint and survivor benefit. If you want to communicate with me, my email of marylandmediator@gmail.com. Include copies of whatever documentation you have.

I was very specific in my comments. Actuarial present values are often computed with respect to "pension"/defined benefit plans. I have never seen a court award $100,000 from a "pension" plan as set for in the original post in this email thread. So, as I said, you cannot look at a Lockheed Martin "pension"/defined benefit plan and find a stated dollar value. You can look at a Lockheed Martin "retirement"/defined contribution (ex: 401(k)) plan and see a hard value set forth. As far as actuaries are concerned, in order to compute a present value of a defined benefit/pension plan you need to assume a COLA rate that may or may not hold true over 20 or 30 years in the future. You need to assume a discount rate (ex: PBGC 4044) that will hold true for 20 or more years. You need to assume the Participant's age at retirement (55, 60, 62, 65, 70) - it makes a difference. You need to determine the Participant's life expectancy from tables that are one size fits all for the "generic" man or woman. And you need to determine the number of years, if any, that the Alternate Payee will live in order to receive her share of the Participant's pension benefits. Assume, assume assume, assume, assume = speculative. This speculation has caused many jurisdictions, including Maryland, to reject actuarial calculations of present value in favor of an "if, as and when" approach, that is, when the Participant starts to receive his/her pension benefits, the Alternate Payee will receive a share computed by taking 50% of the monthly benefit multiplied by a fraction, the numerator of which is the number of months during the marriage that the Participant accrued creditable service toward retirement, and the denominator of which is the number of months of creditable service accrued by the Participant at the time of retirement, a/k/a the "coverture fraction". Many years ago I represented a 55 year old Government employee, a GS 15, Step 10, at the top of the GS ladder. His wife produced an actuary who testified that the present value of his pension was about $600,000, and the wife wanted the court to enter a judgment in her favor for $300,000 even though his retirement might be years away. I asked the actuary what date of retirement he assumed and he said 65 and acknowledged that his calculation might not be correct if my client retired before or after age 65. I then asked him about the actuarial tables he used and if there was a separate column for men and women. He said "yes". I asked him if there was a column for a 55 year old man who had history of 3 heart attacks, referring to my client. He laughed and admitted that such a table did not exist and that the life expectancy tables are for the "generic" man or woman and had no application whatever to my client. The judge in that case gave the wife an If, and and when award. In the next session of the Legislature they passed a law making if, and and when the default approach. And we haven't even talked about allocation of pension benefits on a separate interest annuity basis rather than a shared (if , as and when) basis, thereby avoiding most of the issues set forth above. And we have not discussed the fact that actuaries believe that if you put your right foot in ice water and your left foot in boiling water, on the average you are comfortable. David

I assumed that since you used the term QDRO you are dealing with an ERISA qualified plan and not using "QDRO" as a generic term for a retirement benefits order under a State, County, Municipal or international plan, most of which are NOT covered by ERISA. But you said "teaching pension" and that raises two questions. Most teacher plans are funded either by the county where you teach or by the State , and neither are normally ERISA qualified. Second, a "pension" is what you get when you retire at a certain age with a certain number of years of service and income history, and is paid out monthly, and does not have an ascertainable value. A "retirement plan" is akin to a 401(k) or a 403(b) and you can look at a statement and see how much is in the plan. So I suspect that you are not talking about an ERISA qualified QDRO and are not talking about a "pension". You can see how precision in language is so important in this area of the law. And it's also important to know in what state's court system you are operating. There are a number of answers to your question: 1. If the Judgment of Divorce (incorporating your Settlement Agreement) contains all of the information that is required for an ERISA qualified QDRO, then you don't need a QDRO and the Plan Administrator should accept a certified copy of the Judgment of Divorce (with the Settlement Agreement attached). See the 2nd paragraph on page 4 of the DOL ESBA Handbook attached, or that can be downloaded at https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/publications/qdros.pdf 2. In some states like Maryland, a QDRO or any other retirement allocation order need not be signed by the parties. It is considered to be an enforcement tool like a garnishment or attachment. See Rohrbeck v. Rohrbeck, 318 Md. 28, 566 A.2d 767 (1989). The normal protocol is to file a Motion for Entry of Retirement Benefits Order. It is quite bizarre in your case since your ex is the one to benefit from the receipt of the funds on deposit in your account. And he may or may not be entitled to gains, losses or investment experience with respect to his share from the valuation date to the date his share is distributed to him. See attached Memo. 3. If you die before an ERISA qualified QDRO is approved by the plan administrator, the Plan will also be subject to the Pension Protection Act of 2006, and he can get a post mortem QDRO. But if the Plan is not under ERISA, he cannot get a post mortem Order, your account balance will pass to your named beneficiary. If you have not done so, you need to name a beneficiary. If he is still named as the beneficiary of the account and you die, he will get it all. Lots of Federal law on this. If he dies first the question is whether his estate will be entitled to obtain a QDRO? Maybe. 4. In some states there is a statute of limitations on the right of a party to obtain a QDRO. If the Order is not submitted within the statutory time, the underly right to the QDRO is lost and collections cannot be enforced. It's like a judgment that expires in 12 years in many states and cannot thereafter be collected unless it was renewed in the proper way. 5. In many cases, if the Judgment of Divorce does not contain a paragraph like this: "ORDERED, that this Court or another court of competent jurisdiction shall retain continuing jurisdiction for the purpose of awarding, entering, modifying, increasing, decreasing, amending, revising, explaining, interpreting, clarifying or vacating any Judgment or Order previously entered by this or such other court with respect to the allocation between the parties of all pension or retirement plan benefits, included defined benefit and defined contribution plan benefits, and including retirement annuity benefits and pre-retirement and post-retirement survivor annuity benefits or death benefits." If that language is not in the Judgment of Divorce then the court loses jurisdiction after the expiration of time specified in the applicable court rule for the modification or court orders. See, e.g. Leadroot v. Leadroot, 147 Md.App. 672, 810 A.2d 526 (2002), holding that in the absence of clear and convincing proof of fraud, mistake and irregularity per Maryland Rule 2-535(a), the Court did not have jurisdiction to issue an amended QDRO that revised the coverture fraction which everyone seemed to agree was a clear mistake by the trial judge in computation of the numerator. Bottom line is that you need to find a lawyer iin your jurisdiction who is conversant with the law of your state as to this area of the law. David QDRO Handbook.pdf Gains, Losses, Ownership Interest and Constructive Trust.pdf

First of all, QDROs are under ERISA. IRAs are not under ERISA. The transfer of IRA account from one spouse to another is pursuant to IRC 408(d)(6) that provides: "(6) Transfer of account incident to divorce The transfer of an individual’s interest in an individual retirement account or an individual retirement annuity to his spouse or former spouse under a divorce or separation instrument described in subparagraph (A) of section 71(b)(2) is not to be considered a taxable transfer made by such individual notwithstanding any other provision of this subtitle, and such interest at the time of the transfer is to be treated as an individual retirement account of such spouse, and not of such individual. Thereafter such account or annuity for purposes of this subtitle is to be treated as maintained for the benefit of such spouse." Most IRA custodians believe that a QDRO as defined in IRC 414(p) is NOT required to transfer IRA account balances from one spouse to the other. See the attached articles on the subject. Most IRA custodian have their own forms. See attached sample from Vanguard. and T. Rowe Price. Notice that everywhere you look in the Code re: IRA accounts and on these forms the expectation is that the transfers are incident to a divorce. Being incident to a divorce is what makes them not a taxable event. So you are right that QDROs are not used in connection with an IRA transfer. But that has nothing to do with the use of a QDRO to transfer pension or retirement benefits under an ERISA qualified Plan. Furthermore, as I said above, the ability to make the transfer is a matter of State law. In Maryland, Family Law Article, Section 8-203 , 8-204 and 8-205, make it clear that the Court does not have the authority to transfer pension and retirement account except in connection with and at the time of a judgment of absolute divorce or an annulment. That's it. If a happily married couple in Maryland wants to make a transfer of such assets outside of a divorce, either: (i) they cannot obtain a court order to do so; or, (ii) if they somehow fool some judge with no knowledge of his/her jurisdictional limitations to sign a Court Order, the transfer will be taxable to the account holder as income and a 10% premature withdrawal penalty will apply as well (unless the account holder is over and 59 and 1/2). Once again. I will be happen to have some evidence that pension and retirement assets can be transferred without a QDRO or IRA transfer form and in contravention of state law, and in violation of the antialienation provisions of IRC 401(a)(13) with the exception for QDROs discussed in subparagraph B. IRA Division & Transfer Incident to Divorce.pdf IRA Transfer w-o Court Order.pdf Vanguard IRA Divorce #2.pdf T Rowe Price IRA DivorceTransfer Form.pdf

Can you tell me what exactly you see happen and in what context. California is a "community property" state and I am a long way from there in Maryland where the term is "marital property" so I understand that there are differences, but I have for years read every case issued by every US court, state and Federal, with respect to QDROs and have yet to find a case in which a QDRO was issued dividing pension or retirement assets that was not connected to a divorce case. I keep in mind that a QDRO is nothing more than an enforcement tool, like a garnishment or an attachment. It facilitates ERISA. I took a look at the Shelstead case at - https://scholar.google.com/scholar_case?case=6231792219368013679&q=qdro+%26+divorce&hl=en&lr=lang_en&as_sdt=4,5,321,322,323,324&as_vis=1 Maybe we are talking about different things. Let's say to have a happily married couple. The husband, a Participant in a pension plan, dies. Under ERISA his wife is entitled to a Qualified Joint and Survivor Annuity unless she waived her right to receive that benefit. But her right to that benefit is not enforced by a QDRO. That would be a case where retirement benefits are due, but not in a divorce context, and not enforced by a QDRO. A lawsuit against the Plan Administrator will do it. There have been 148 cases decided by state and Federal Courts in California. 120 of them are captioned "In re: Marriage of XXX". I have not tried to review all of the 28, but the 7 most recent cases that don't begin with "In re: the Marriage" are all from divorce cases. David

See 414(p)(1)(B): "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)." A QDRO can be issued for the purposes of collecting child support from a spouse or former spouse and that may or may not have involved a divorce. A QDRO can be issued to the purpose of collecting alimony from a spouse or former spouse and that must assuredly have involved a divorce proceeding at some point. And a QDRO can be issued for the purposes of dividing marital property between the parties involved in a divorce proceeding. To dig a little deeper, here is Question 1-8 from the DOL ESBA 2014 The Division of Retirement. Benefits Through Qualified. Domestic Relations Orders Handbook - https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/publications/qdros.pdf "Must a domestic relations order be issued as part of a divorce proceeding to be a QDRO? "No. A domestic relations order that provides for child support or recognizes marital property rights may be a QDRO, without regard to the existence of a divorce proceeding. Such an order, however, must be issued pursuant to state domestic relations law and create or recognize the rights of an individual who is an “alternate payee” (spouse, former spouse, child, or other dependent of a participant). "An order issued in a probate proceeding begun after the death of the participant that purports to recognize an interest with respect to retirement benefits arising solely under state community property law, but that doesn’t relate to the dissolution of a marriage or recognition of support obligations, is not a QDRO because the proceeding does not relate to a legal separation, marital dissolution, or family support obligation. "[ERISA § 206(d)(3)(B); IRC § 414(p)(1); Advisory Opinion 90-46A (Appendix A); see Egelhoff v. Egelhoff, 121 S.Ct. 1322, 149L. Ed. 2d 264 (2001); see Boggs v. Boggs, 520 U.S. 833, 117 S.Ct. 1754 (1997)]" I am not aware of any state law that would authorize the entry of a QDRO for the purpose of transferring marital property between parties who are not in the process of obtaining a divorce. In fact, the term "marital property" does not even exist in the absence of a divorce action. It means property acquired by the parties during their marriage that is now "on the table" for purposes of allocation by a court at the time of and in connection with a divorce, either by the entry of a marital or monetary or distributive award, or the entry of a QDRO. If you and/or your wife own a home, it will be titled as T/E or JTROS or T/C or titled to one party or the other, but a determination as to whether it is "marital property" is not made except in the context of a divorce. And it may be marital property or not, or partially marital property. And depending on the type of marital property it may or may not be subject to a QDRO designed to transfer such property from one party to the other, but at the end of the day it has to be done in accordance with State law. It is entirely possible for State law to prohibit the transfer of retirement assets from one party to another, and if that were the case, then no QDRO can issue. 414(p) describes and authorizes the issuance of a QDRO (and see the REA and the PPA of 2006) but it does not mandate the issuance of a QDRO. If you know a jurisdiction where the court can issue a QDRO transferring marital property between parties who are not in the process of divorcing, I would love to know about it. I have been in practice for 52 years and preparing QDROs for 31 years and have not heard of that happening.

A QDRO is for people who are divorced? You were still married at the time of his death, right? So there is no QDRO.

For your purposes, "marital property" and "community property" are the same. I fear you are out of luck. If the plan documents say there is a waiting period, then nothing the court says or the parties agree upon will make any difference. Neither the court or the parties can supercede the plan document. Entering a QDRO will not help. It his case the plan documents look like they are in the local code and there is a one year waiting period for you to get survivor annuity benefits and he dies in 9 months. Terrible, but there was nothing he could have done. If he signed all the papers it would not have mattered since the 1 year waiting period was not satisfied. So I fear you are just out of luck. The opposite is often true as well, that is, an ex wife can waive her rights in a former spouse's survivor annuity, but if the parties were married at the time of the divorce, and if he had already elected survivor annuity benefits for her, she gets them even though they were intended to be waived. Unfortunately most lawyers and judges don't have a clue how these things work. You might check with them to see if they have any other form of death benefits other than a survivor annuity. Some plans have a lump sum benefits for a spouse. I will I had better news for you.

There are thousands of pension plans in the US and they are not all the same. You need to tell us the name of the Plan and in what State your divorce was granted. Furthermore, you are now dealing with survivor annuity benefits and not retirement benefits. A QDRO is a court Order incident to a divorce. The Pension Protection Act of 2006 ("PPA") provided that a QDRO can be entered posthumously, but that normally applies only to ERISA qualified plan. ERISA is the Federal law that applies to "qualified" plans, mostly private companies. Most state, county and municipal plans are not "qualified" under ERISA, but some are so the question is whether or not the Plan you are dealing with is subject to the PPA. In most jurisdiction the entitlement to a survivor annuity terminates with the divorce but can be preserved/reinstated with a QDRO. In some cases the election of a survivor annuity for a spouse before the divorce is not impacted by the divorce, but that's not always the case. In some Plans survivor annuity benefits are available only to spouse and not to former spouses. This is common in Plans applicable to police, firefighters and correctional officers. To make matters even more complicated, in some states survivor annuity benefits with respect to disability retirement benefits cannot be divided by a QDRO. And in some states if you don't have the QDRO entered within a certain period after the divorce the court loses jurisdiction to do so. In some states the judgment of divorce can reserve jurisdiction to enter a QDRO. And in some states a QDRO is viewed as an enforcement tool, like an attachment or garnishment and there are not time limitations on when it can be entered. Bottom line, it is likely that if his former spouse was awarded his survivor annuity benefits in his previous divorce decree, and if that's the case she can get a QDRO entered and the Plan will honor it. You comment about the former spouse receiving "50%" is unclear. That may have referred to 50% of the marital portion of his retirement annuity, or a 50% joint and survivor annuity which provides for the former spouse to receive a survivor annuity equal to 50% of the amount of the retirement annuity being paid at the time of his death. Sorry I cannot be more helpful, but these matters vary from plan to plan and from jurisdiction to jurisdiction and are very fact specific.

Here are the IRS rules re: hardship withdrawals. https://www.irs.gov/retirement-plans/retirement-plans-faqs-regarding-hardship-distributions I have never heard of any Plan allowing a hardship withdrawal to purchase a principal residence. .

Allow me to comment. In my state, Maryland, the court has the power to make a monetary award (including the allocation of pension and retirement assets) at the time of absolute divorce or annulment. An annulment can relate to a situation where the marriage was void ab initio (one party still married to someone else), or when the marriage is merely voidable (fraud). But in Maryland the reason for the annulment doesn't matter. So the first question is what is the applicable law in your state? If it permits the court to divide pension and retirement assets at the time of an annulment, then a QDRO can be entered by the court and will not be refused by the Plan Administrator who has no power to look behind the QDRO to the underlying state law. The QDRO is not automatic. But the court has to enter the QDRO based on the request of the prospective Alternate Payee. It must be requested in the pleadings and granted by the Court at a contested hearing, or the parties must agree upon it in their Marital Settlement Agreement. In all event a certified copy of the QDRO will be sent to the Plan Administrator and it will be implemented. If the annulment has been entered and there is nothing in the court's order about a transfer of pension or retirement assets, then the matter is closed and further litigation would be barred by concepts of res judicata or collateral estoppel.

If your father was retired before the divorce, it may be that your mom's pension benefits were locked in at retirement and no QDRO would have been required. On this point see Vanderkam v. Vanderkam, a case decided on January 20, 2015, by the United States Court of Appeals, District of Columbia Circuit, No. 13-5163. The holding in that case confirmed that when a Participant in an ERISA qualified plan retires, his then wife will immediately become irrevocably vested in her entitlement to a QJSA. The only way the Alternate Payee can lose this entitlement is via a waiver previously executed by her within 180 days prior to the commencement date of the Participant’s retirement annuity. See 1055 §§(c)(1)(A)(I) and (c)(7)(A). During that 180 day period, the Alternate Payee may also revoke such waiver. See 29 U.S.C. §1055(c)(1)(A)(iii). A waiver executed prior to the applicable election period is void. It is also clear that if the retired Participant and his wife later divorce, it is not necessary to prepare a QDRO confirming her entitlement to a survivor annuity. While a QDRO would be required to award a share of the Participant’s retirement annuity, and while it might be a good idea to confirm the Alternate Payee’s entitlement to a survivor annuity, this is not essential. Note that Federal laws like ERISA preempt Maryland law and will provide a survivor annuity benefit to the former spouse of a Participant who retired from an ERISA qualified plan prior to divorce. Maryland courts cannot change that outcome. Read the underlying District Court decision - Vanderkam v. PBGC, 943 F.Supp.2d 130 (USDC - DC Cir. 2014). Read also the well written opinion of the United States District Court for the District of South Carolina in Setzer v. Michelin Retirement Plan - C.A. No. 3:13-cv-00192-MGL. In this case the parties were married when the husband retired and was required by ERISA to elect a joint and survivor benefit for his wife. The only way for him to make another election would have been with the consent of his wife. Five years later, after their divorce, Mr. Setzer asked the Plan to permit him to change the survivor annuity election and to name his new wife as the beneficiary. Said the Court: “In his benefit claim, Setzer requests that in light of his divorce, 1) he be permitted to change the Joint and Survivor annuity (50%) form of pension benefit which he elected at the time he was married to Jessica and prior to his retirement and Annuity Commencement Date; 2) Jessica receive no Surviving Spouse Benefits if she survives him; and 3) he be allowed to name a new spouse beneficiary of his pension benefit should he remarry. (AR 19, 38.) As discussed fully below, ERISA and interpreting Fourth Circuit case law preclude Setzer's request. * * * * “In Hopkins v. AT&T Global Information Solutions Co., 105 F.3d 153 (4th Cir. 1997), the Fourth Circuit directly addressed the question of when a surviving spouse benefit vests in a participant's spouse. The Fourth Circuit concluded that under ERISA, "the Surviving Spouse Benefits vest in the spouse married to the participant on the date of retirement." Id. at 156. The Court went on to conclude that "nless the form of benefit is properly changed prior to retirement, the participant is locked into the joint and survivor annuity upon retirement . . . [and] cannot change the form of benefit, even with the current spouse's consent." Id. at 157. Here, the vesting of the Surviving Spouse Benefits occurred on December 1, 2004, the date of Setzer's retirement and commencement of benefits. Consequently, as a matter of law, Setzer cannot change the Joint and Survivor form of benefit, even though Jessica purported to waive any claim or interest she might have in Setzer's pension benefits.” >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>. If the NY plan is an ERISA qualified play, it is possible to have the court enter a post-mortem QDRO under the Pension Protection Act of 2006. Even if the NY Plan is NOT ERISA qualified, it may be possible to have a post mortem QDRO entered. There is also a concept of nunc pro tunc QDROs that might apply. On these issues give your attorney the research Memo attached. Post Mortem and Nunc Pro Tunc QDROs.pdf

If this is a separate interest allocation the amount paid to the Alternate Payee and the date on which she elects to commence benefits has no bearing whatever on the Participant's remaining share. The interest paid to the Alternate Payee leaves him with whatever remains. That amount will increase with whatever factors will result in an adjustment of his benefit, whether it's increased time in service, or a higher salary. I don't understand the interrelationship between his decision to retire at the age of his choice and the Alternate Payee's election to commence benefits at the age of her choice. The amount received by the Alternate Payee will be actuarially reduced based on her age and life expectancy.....as will his. In theory, the present value of an annuity will be the same no matter the age at which the annuitant elects to commence benefits. Start at a younger age and receive less. Start at an older age, get more. However any time I have tried to make that computation the PV at the younger age is greater, a counter intuitive result, given that i don't have the ability to make the year by year recalculation of life expectancy as the annuity ages. We all know from statisticians that if you put your left foot in boiling water and your right foot in freezing water, on the average you're comfortable.

IRC 414(p)(2) sets forth the information that needs to be present to have a Domestic Relations Order (it's not "qualified" until the Plan Administrator says it is.) (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. That's it. If you can find all of that information in the Divorce Decree or in the the Settlement Agreement incorporated into the Divorce Decree, you have a DRO and the Plan Administrator can "qualify" it and act on it.

In Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, 577 US _____ (2016), the Supreme Court held that pursuant to 502(a)(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”), a Plan Administrator may not recover overpayments from a Participant’s general assets. The decision impacts both retirement and health and welfare plans. You can find the decision at https://supreme.justia.com/cases/federal/us/577/14-723/ I think it's implications extend far beyond the facts of that case involving a subrogation claim. If the Participant in your case spent the money, the Plan may be SOL. See also In Brown v. Continental Airlines, Inc., 647 F. 3d 221 (5th Cir., 2011) https://scholar.google.com/scholar_case?case=4019345202025914766&q=brown+v.+continental+airlines&hl=en&as_sdt=20000003 Continental alleged that a number of pilots and their spouses obtained "sham" divorces for the purpose of obtaining lump sum pension distributions from the Continental Pilots Retirement Plan that they otherwise could not have received without the pilots' separating from their employment with Continental. The pilots were allegedly acting out of concern about the financial stability of Continental and the fear that the Plan might be turned over to the PBGC and that their retirement benefits would be substantially reduced. By getting divorced, the pilots were able to obtain QDROs from state courts that assigned 100% (or, in one instance, 90%) of the pilots' pension benefits to their respective former spouses. The Plan provides that, upon divorce, if the pilot is at least 50 years old (as all the pilots in this case were), a former spouse to whom pension benefits are assigned can elect to receive those benefits even though the pilot continues to work at Continental. (Think “separate interest” annuity allocation.] The former spouses presented the QDROs to Continental and requested payment of lump-sum pension benefits. After the former spouses received the benefits, the couples remarried. Continental sought to obtain restitution under ERISA Section 502(a)(3). The Court of Appeals noted that ERISA § 206(d)(3) limits the QDRO qualification determination to whether the state court decree calls for benefit payments outside the terms of the Plan. It rejected Continental’s expanded reading of § 206, concluding that plan administrators may not question the good faith intent of Participants submitting QDROs for qualification. But the opposite may be true in U.S. v. Brazile, No. 4:18CV56 RLW, United States District Court, E.D. Missouri (2018) - that you can find at - https://scholar.google.com/scholar_case?case=10011356851935590761&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:14880692104701005079:AAGBfm2qi1_JaXLJvydb4f3quYTnTlLkbA, where Steven Brazile was convicted of securities fraud and, as part of his plea agreement with the Government, he acknowledged owing restitution in the amount of $3,902,880.85. The Government imposed a lien against his property and rights to property under 18 U.S.C. § 3613(c). It seems that among Steven’s assets was a pension plan. Steven’s wife, Lorraine, filed suit for divorce and as part of the settlement the parties agreed to the entry of a QDRO transferring 100% of the plan benefit to Lorraine, thereby putting this asset unavailable for Steven’s restitution obligation. “ In September 2017, probation officers conducted a home visit at Defendants' home and discovered that Steven Brazile and Lorraine Brazile are living together with their children and are raising their kids together as a "family." (Id. at ¶ 28) The Government contends that this demonstrates that the Defendants entered into a "sham divorce" to transfer assets to Defendant Lorraine Brazile that could have been used to pay victim restitution. (Id. at ¶ 29) On January 12, 2018, the Government filed a three count civil Complaint against Defendants alleging fraudulent transfer in violation of 28 U.S.C. § 3304. (Id. at ¶¶ 30-44).” The case came before the court on Steven and Lorraine’s motions to dismiss or for summary judgment. The judge allowed the case go forward.

It would be nice to know the identity of the Plan sponsor. The answer with respect to an ERISA qualified plan may be different from a FERS or CSRS pension where at least two Merit System Protection Board cases have held the the right to elect a benefit includes the right to reject it. It would also be helpful to know why the client cannot qualify for Medicare. Lastly. My experience is that in order to qualify for Medicaid they are looking at ASSETS and not income. For example, if you have under $2500 in assets in Maryland you can be admitted to a nursing home, Medicaid will pay a part of the cost acceptable to the nursing home ($8000/mo instead of $13,000/mo paid by full payors), who can afford it), and the nursing home will take the Social Security check each month (less the cost of Medicare B and D and a Medicare Supplement Plan ) toward the difference. Why would pension income be treated any differently? Or maybe it would be a credit against what Medicaid would otherwise pay. I assume you have spoken to the Medicaid people in your state.

Yes. It might be a "limited divorce" or a "divorce a mensa et thoro" neither of which are actual final divorces. An appeal of the divorce decree might delay it's effective date. I would ask for a certified copy of the divorce decree. It's not a difficult thing to provide.

Google - IRS Rollover Chart - and I suspect your answer will be found there.

Your lawyer is guilty of malpractice. If he didn't know how to review a QDRO implementing an Agreement then he should have referred you to someone who could to so. The language of the Agreement sounds like it was well drafted. All that needed to be done was to get the value at the time of the marriage, take that amount at the agreed 5% simple interest to the date of divorce, and divide the balance 50%. You did not get the non-value of your premarital share restored to you. By the way, most 401(k) plans can do that computation for you at the actual rate of growth. Contact the lawyer and have him file a Motion to revise the QDRO and and find someone competent to prepare it. I will give the benefit of the doubt to the other lawyer that he was not being "slick" as we say in the law. Tell your lawyer that you expect him NOT to charge you for his time and to pay the cost of the revised QDRO. If he gives you any push back tell him you will hire someone else and sue him to recover your fees and costs, and perhaps report him to Bar Counsel (Grievance Commission). I see this sort of thing happen 2 or 3 times a week. The Rules of Professional Responsibility make it clear that a lawyer must be competent and this requires him/her to stand in his/her area of the law - stay in his lane. It's like a plumber trying to do electrical work. Good luck.

I can beat that. I received a notice to send the forms necessary for a 10 cent RMD.

I have been preparing QDROs since 1988. Hate to tell you that you may be out of luck. QDROs are designed to secure an allocation of property (pension and retirement benefits), and to collect alimony and child support arrears - but she needs to have a judgment for the arrears. A 401(k) is a fat target. If you are no longer employed by the company you can consider moving the money in your 401(k) to an IRA in Bumfutz, Montana. There is no law that says you must be a sitting duck if she will not work out a deal. Check with a lawyer in your state to make sure that there is no statute of limitations on her right to collect arrears. There is likely a law that says you cannot be held in contempt after a certain time.