fmsinc

It doesn't pass the smell test. CYA at all times.

The FERS "plan documents", thousands of Federal statutes and CFR regulations are of no use to you. If the FERS COAP awarded you survivor annuity benefits, and if a certified copy of the COAP was sent to OPM, and if it was approved by OPM, they would have sent you a determination letter telling you that the COAP was acceptable and how they planned to execute the terms of the Order as they understood them. If you didn't receive that determination letter the most common reason is that you did not keep OPM advised of your current home address from time to time. Itg is possible that the Judgment of Divorce may have all the information that OPM needs to treat it as a COAP. If you remarry before your age 55 you will lose the survivor annuity...period, game, set, match (UNLESS you and your first spouse were married for 30 years or more). You should ask OPM for a copy of the COAP under which they are operating and a copy of their determination letter. Get a copy of the Judgment of Absolute divorce and email them to me at marylandmediator@gmail.com and I will be happy to provide you any further thoughts....no charge. If you and your former spouse has a Marital Settlement Agreement, sent me the pages of that document that deals with the FERS. If the COAP was not approved by OPM for any reason you may still have time to obtain an Amended COAP from the Court, but that will depend on the State where you live and the laws that may restrict your ability to obtain an Amended COAP, for example, the Court's failure to reserve jurisdiction to issue an Amended COAP, the expiration of various time periods, and, in the case of FERS, the onerous provisions of what we call the "first order rule" - 5 CFR §838.806 provides that OPM will not enforce a court order awarding survivor annuity benefits if the order is issued after the date of retirement or death of the Employee/Retiree AND seeks to amend or replace the first order dividing marital property between the Employee/Retiree and the Former Spouse. An order that seeks to award or eliminate a survivor annuity benefit, or to increase or reduce the amount therefor, or to explain, interpret or clarify the foregoing, must be issued on a day prior to the death or retirement of the Employee, or it must be the first order dividing marital property of the Employee/Retiree and the Former Spouse. David

There is no one size fits all answer. You seem to have a defined benefit plan, a pension. You seem to suggest that your ex- received her share of the 401(k) plan but that is not clear. It is possible that the Plan Administrator can treat the Divorce Decree as a QDRO is it contains all of the information it needs to qualify as a QDRO including: (i) 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, (ii) 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, (iii) the number of payments or period to which such order applies, and (iv) each plan to which such order applies. The only way I can give you an intelligent response is if I see the Divorce Decree and the Settlement Agreement if there was one. Email the documents to me at marylandmediator@gmail.com or fax it to 301-947-0501 and I will try to answer your questions. No charge. By the way: (i) if you remarried and then retired you ex-wife will have lost any survivor benefits that were awarded to her. This is true even if they Plan is holding up your payments following your retirement. (ii) the state you live in might deny the court to right to enter a QDRO after 20 years. David

Peter. Before Maryland did away with a "limited divorce" that was classified as a "legal separation" it might have been possible to transfer ERISA plan benefits without a divorce based on 26 USC 408(6) and 121(d)(3)(C)(i). But the enactment of the Marital Property Statute in 1979 made is clear that the only in connection with a suit for absolute divorce or annulment did the court have the authority to determine what property was marital, and the value of that marital property, and the amount and form of a monetary award (that included QDROs) that would be equitable. I am familiar with Jago which stood for the proposition that. ". . . . a QDRO is a procedural right derivative of or adjunct to a domestic relations matter, but outside the context of a domestic relations matter, a QDRO is not a distinct, discrete legal claim." This was consistent with a Maryland case, Rohrbeck v. Rohrbeck, 318 Md. 28, 566 A.2d 767 (1989), that a QDRO is simply an aid to enforcing a prior Order of the trial court and does not rise to the level of a separate cause of action. Accord, see Wilson v. Wilson, 116 Ohio St. 3d 268 (2007), and In re Marriage of Petraitis, 263 Ill. App. 3d 1022, 1040 (1993). By the way, here is a direct link to Wallace v. Wildensee, https://www.courtlistener.com/opinion/9397059/mary-kathryn-c-wallace-v-kristin-w-wildensee/?q=Wallace+v.+Wildensee%2C+990+N.W.2d+637 And the DOL publication, “ QDROs - The Division of Retirement Benefits Through Qualified Domestic Relations Orders” - https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/publications/qdros.pdf provides: “Q 1-8: 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. [From the unique circumstances of DoL Advisory Opinion 90-46A.] “[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)]” Advisory Opinion 90-46A provides in pertinent part: “With respect to ERISA section 206(d)(3)(B)(ii)(II), it is the view of the Department of Labor that Congress intended the QDRO provisions to encompass state community property laws only insofar as such laws would ordinarily be recognized by courts in determining alimony, property settlement and similar orders issued in domestic relations proceedings. We find no indication Congress contemplated that the QDRO provisions would serve as a mechanism in which a non-participant spouse's interest derived only from state property law could be enforced against a pension plan.” Unfortunately our Legislature in Maryland doesn't know a QDRO from a Quahog and routinely enacts legislation that creates more problems than it resolves, often in areas of law with respect to which Federal preemption applies to the Agreement of the parties or the consequences intended by the trial judge. I don't know how many times I have told my colleagues that is the non-military spouse does not file a DD 2656-10 within 12 months of the divorce, she will not receive SPB benefits no matter what it says in the Marital Settlement Agreement or in the Judgment of Absolute Divorce or in the Military Retired Pay Division Order - make sure you malpractice insurance premium payments are up to date. I find it incongruous that Federal law with respect to TSP RBCOs, FERS COAPs and IRA RBOs are not concerned with whether or not the parties are still married, and are happy to transfer such benefits based based on a "legal separation". In all events, here are a few cases that reflect a corollary to the issue at hand. In US v. Abell, 435 F.Supp.3d 299 (D. Mass.,2020), affirmed 985 F.3d 111 (2021), the husband pleaded guilty to eight counts of wire fraud and money laundering and was sentenced to 97 months incarceration and three years supervised release. The Court also issued an Order of Forfeiture for criminal restitution in the amount of $3,879,750.00. The Government sought a Writ of Garnishment against the husband's assets including his 401(k) plan with an approximate value of $393,500.00. The husband and his wife oppose garnishment of the 401(k) account on the grounds that the wife had a vested interest in the 401(k) account by virtue of her marriage to the husband, and that Massachusetts property law compels equitable distribution of marital assets and, therefore, the wife is entitled to an equitable portion of the funds in the 401(k) account. The court held: "The argument that Massachusetts property law precludes garnishment of defendant's 401(k) Account is unavailing. Persuasive case law indicates that the pre-divorce property interest of an individual in her spouse's ERISA-qualified retirement account is governed exclusively by federal law, not state property law. See, e.g., United States v. Novak, 476 F.3d 1041, 1061 (9th Cir. 2007) (en banc) ("Retirement plans covered by ERISA ... are governed exclusively by federal law."); United States v. Beulke, 892 F. Supp. 2d 1176, 1180 (D.S.D. 2012) ("Federal law, not state community property law, determines whether a person has a 'property or a right to property' interest in an ERISA-qualified pension plan."). It is undisputed that the Abells are still married. In the absence of a divorce decree or other qualifying domestic relations order, state property law will not displace federal law with respect to a spouse's alleged claim to a 401(k) Account subject to a criminal restitution order. See Beulke, 892 F. Supp. 2d at 1180." (Emphasis supplied.) In US v. Brazile, Case No. 4:18-cv-00056 SEP., United States District Court, E.D. Missouri, Eastern Division.(2020), - -https://scholar.google.com/scholar_case?case=17860472826493880578&hl=en&lr=lang_en&as_sdt=6,33&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:12484640753426065479:AAGBfm1agvHLwT5aWZ_N6PDZrK7iWFqV8A&html=&eexpid=320022102 ...involved a case where on July 30, 2013, Steven Brazile ("Steven") pleaded guilty to one count of transportation of securities obtained by fraud, in violation of 18 U.S.C. § 2314. As a part of his plea agreement with the Government, Steven acknowledged that he owed restitution in the amount of $3,902,880.85. The Government has a lien against Steven's property and rights to property under 18 U.S.C. § 3613(c) as a result of the judgment entered against him on November 13, 2013, in the Northern District of Illinois. Before the entry of Steven's sentence and judgment, Lorraine Brazile ("Lorraine"), Steven's then-wife, filed a suit for dissolution of marriage in the Circuit Court of St. Louis County, Missouri, on July 25, 2013. Id. On August 29, 2013, Defendants entered into a voluntary Property Settlement and Separation Agreement ("Agreement"), and the circuit court entered a final judgment of dissolution awarding Lorraine child support and a portion of Steven's pension benefits. On August 24, 2016, Defendants submitted a qualified domestic relations order ("QDRO") to the divorce court, which assigned Lorraine 100% of Steven's lump sum benefit amount and monthly annuity benefits. The QDRO similarly awarded Lorraine 100% of the Braziles' marital home on Vienna Avenue (the "Vienna property"). In September of 2017—four years after their marital dissolution and 13 months after they submitted their QDRO assigning the disputed assets to Lorraine—probation officers conducted a home visit and discovered that Steven and Lorraine were living together with their children and were raising their kids together as a "family." Id. ¶ 28. The Government contends that this demonstrates the Defendants entered into a "sham divorce" to transfer assets to Lorraine that could otherwise have been used to pay victim restitution. The Government alleges fraudulent transfer in violation of 28 U.S.C. § 3304(a)(2) (Count I); fraudulent transfer in violation of 28 U.S.C. § 3304(b)(1)(A) (Count II); and fraudulent transfer in violation of 28 U.S.C. § 3304(b)(1)(B) (Count III). The Government alleges that Steven has violated three provisions of the Federal Debt Collection Procedures Act ("FDCPA"). As a remedy, it asks the Court to void the final judgment and dissolution of property in Defendants' divorce case, enter judgment for the United States for the full value of the property transferred from Steven to Lorraine, and grant the United States a lien against all fraudulently transferred property such that it can seize that property immediately to pay Steven's restitution. By seeking dissolution of agreements to which he is a party, reversal of his transfer of assets to Lorraine, and seizure of the house he lives in as well as other assets that allegedly support him and his family—all in satisfaction of Steven's own debt. The court goes on to consider several evidentiary issues, expert witness qualifications, res judicata, collateral estoppel, waiver, equitable estoppel, and more. The Court then held: “Count III alleges constructive fraud in violation of 28 U.S.C. § 3304(b)(1)(B). Doc. [1] at 11. To prove constructive fraud under that section, the Government must show that Steven transferred assets to Lorraine "without receiving a reasonably equivalent value in exchange for the transfer" at a time when he "intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due." 28 U.S.C. § 3304(b)(1)(B)(ii). "As noted already, the Government alleges the Braziles' divorce settlement gave Lorraine all of the couple's viable assets in order to insulate those assets from Steven's criminal restitution liabilities. The Government thus contends that all the elements of § 3304(b)(1)(B) have been met. Doc. [66] at 5-12." * * * * "By contrast, the Government has produced substantial, undisputed evidence that Steven was aware of his impending restitution liabilities when he signed the divorce settlement. See, e.g., Doc. [85] ¶¶ 15, 17-18, 32. The restitution debt totaled roughly four times what Steven received in the divorce, even if the assets allocated to him are assigned their full value. See Doc. [87] at 31 (explaining that the "grand total" of Steven's share of the divorce settlement amounted to $800,490.0).[7] Steven has neither contradicted this evidence nor produced other evidence that would support a finding in his favor, so the Government is entitled to summary judgment." See also United States of American v. Wolas, 520 F.Supp.3d 114 (2021) - Criminal Action No. 17-10198-FDS,United States District Court, D. Massachusetts (2021), - https://scholar.google.com/scholar_case?case=9503464558169105254&q=United+States+of+American+v.+Wolas,+Criminal+Action+No.+17-10198-FDS,United+States+District+Court,+D.+Massachusetts+(2021)&hl=en&as_sdt=20000003= Best regards, David

A TSP transfer can be implemented with a RBCO even though the parties are not yet divorced. A "legal separation" is sufficient - see 5 CFR Part 1653, Subpart A, Sections 1653.1(b) and 1653.5(i). The following laws and regulations make it clear that a FERS COAP can be entered based on "legal separation”: 5 USC Sections 8467(a), 8445(f), 8424(b)(1)(B), 5 CFR 838.101(a)(1), 828.103, 8382.201(a), 838.236(b), 838,401(a), and 838.701(a). Pursuant to 26 USC 408(6): (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 clause (i) of section 121(d)(3)(C) 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." Section 121(d)(3)(C)(i) provides: "C) Divorce or separation instrument For purposes of this paragraph, the term “divorce or separation instrument” means— (i) a decree of divorce or separate maintenance or a written instrument incident to such a decree," Under ERISA the question seems to be addressed only at 26 USC 414(p)(1)(B): "(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 or Tribal domestic relations law (including a community property law)." Since 1842 a grounds in Maryland for what we later called a "limited divorce" was a divorce a mensa et throro (from bed and board). It was a document that would have met the definition above and would have have supported the entry of a QDRO prior to the final divorce. Maryland recently did away with a "limited divorce" and the State law provides that only in connection with an absolute divorce or an annulment can the court determine what is "marital property", the value of such marital property, and make an equitable adjustment by a monetary award that include the entry of a QDRO. I have been apoplectic since there are so many negative consequences of delaying the entry of a QDRO. See attached. In South Carolina, they have what they call a "Decree of Separate Support and Maintenance" that will be entered by the Court adopting, ratifying and incorporating a "Complete Support and Property Settlement Agreement" executed by the parties. It is a "legal separation" accordance with South Carolina case law. The parties must still remain apart to some statutory period of time before they are eligible for a Final Decree of Divorce. So my question is: Do you know of any other ERISA or IRS statutory authority that addresses the interplay between "legal separation" and the entry of a QDRO, or case law addressing the issue. Thanks, David CONSEQUENCES OF DELAY 02-14-2025.pdf

Responding to Artie. There may be no Federal law, but there are many of State laws and Rules of Procedure that will restrict the court's right to enter a QDRO: (a) if a QDRO is deemed to be a debt and if a state statute of limitations restricts the time within which a suit to collect a debt can be filed. (b) if the doctrine of laches applies (c) if the court failed in the Divorce Decree to reserve jurisdiction to enter a QDRO and the 30 days to file a Notice of Appeal has expired. (d) if the Participant has died with no QDRO ever having been entered or approved by the Plan Administrator (e) see my Consequences of Delay memo. (f) another issue is whether or not lump sum QDRO can supersede a prior election by a Participant under Secure 2.0 to terminate his employment and take, for example, a 10 years certain payout with no joint and survivor benefits to the Alternate Payee. (g) and it might happen that the Agreement and/or the Divorce Decree award the Alternate Payee a benefit from the Participant's employer, Northrop Grumman, without mentioning which of N/G Plans they are talking about. See attached. and BTW there is no Federal law that requires a plan to make a distribution of defined contribution plan benefits to an Alternate Payee in the form of an immediate lump sum. They can require the Alternate Payee to wait until the Participant retires and goes into pay status. Very popular with legal and accounting firms. NG Plans.csv

First of all it is HER share computed at the Valuation Date that will be adjusted for gains and losses from the Valuation Date to Distribution Date. Your remaining share at the Valuation Date and deposits that you and your employer make to your account after the Valuation Date will not factored into the calculations. The calculation of her share will be made, if at all, by the Plan Administrator. Having said that, however, IRA Custodians cannot or will not adjust for gains and losses. Most of them have their own forms that make it very clear that if the IRA Retirement Benefits Order directs that the Former Spouse will receive $100,000, and seven years go by, she still gets $100,000 Gains and losses are disregarded. TIAA CREF has taken the position that it will no longer adjust for gains and losses. The Valuation Date in all cases will now be the "Transfer Date", that is, the date on which the payment due to the Alternate Payee is segregated by the Plan into a separate account for the use and benefit of the Alternate Payee. A problem has recently surfaced when Plan Administrators have outsourced the QDRO review and approval functions to a Third Party Administrator (“TPA”) (e.g. Fidelity, MassMutual, Vanguard, Voya, Alight, Empower), or has changed TPAs between the Valuation Date and the date of distribution to the Alternate Payee. The TPA will not have the historical records available to adjust the amount due to the Alternate Payee for gains, losses and investment experience from and after the Valuation Date. It will only be able to make such adjustments from and after the date that it became the TPA. But will the parties be able to compute gains and losses themselves? On the TSP website the parties can compute the gains and losses by using the online program at https://www.tsp.gov/share-price-history/ In my home state, Maryland, the case of Reynolds v. Reynolds, 216 Md. App. 205, 85 A. 3d 350 (2014) discusses the proof necessary to prove the increase in value of the wife’s IRA from the date of marriage to the date of divorce. Said the CSA: "The trial court found that Wife's IRA was worth $30,443.28 when the parties were wed and $133,519 at the time of trial, but there were no records indicating the account's balance during the intervening time. Wife proffered evidence of the rate of return on U.S. Treasuries and argued that the trial court should impute at least that rate to the $30,443.28 IRA balance when the parties were wed, and so find that approximately $64,000 of the balance at trial was non-marital property. The court, however, reasoned that it was unclear whether the IRA contained U.S. Treasuries, and found that "it is not clear that the treasury bill rate is an accurate reflection of the growth that may have occurred in this account." The court concluded that it "was not willing to speculate" that the U.S. Treasury rate reflected the IRA growth, and therefore it found that the non-marital portion was exactly $30,443.28. "We agree that a trial court could, in principle, attribute a reasonable rate of return to assets, and that the rate on U.S. Treasuries would be a conservative estimate of returns for nearly any asset. But the present case required the trial court to reconstruct accounts long neglected and lost and factor in possible losses, withdrawals, and deposits, of which there remained no record. Such complex financial accounting was beyond the scope of the court's ordinary fact-finding ability, and it required expert testimony, which Wife did not provide. See Gallagher v. Gallagher, 118 Md.App. 567, 578-79, 703 A.2d 850 (1997), cited in Walker v. Grow, 170 Md.App. 255, 273-77, 907 A.2d 255 (2006). We therefore conclude that the trial court did not abuse its discretion when it took account of its own limitations and refused to speculate as to matters beyond its knowledge." (Emphasis supplied.) I have a stockbroker friend who has used the Trusuary rates to make such computations. Other options include taking the value of the Alternate Payee's share as of the Valuation Date and using an average of the Dow Jones Industrials, the NASDAQ, the S&P 500 and the Moody’s bond rate as of Valuation Date and as of the current Distribution Date. Apply the average of the yearly percentage changes to the Alternate Payee's share from the Valuation Date to the Distribution Date and you have the amount due to the former spouse. I have done this many times. It always seems to work out to 5.X%. If is possible that the Alternate Payee's share is defined as a percentage as of the Valuation Date and that the Participant (and his employer) never makes any further contributions to the account. In that event gains and losses will self adjust. Even if the Alternate Payee's share is defined as a hard dollar amount as of the Valuation Date, and that Participant (and his employer) never make any further contributions to the account, you simply divide the Alternate Payee's share by the total in the account as of the Valuation date and create a fraction what will then automatically adjust for gains and losses. But all of these options ignore what can happen in those 7 years. Read my attached Memo "Consequences of Delay". Your ex is the one who is potentially in trouble. Make sure you have names someone other than your ex-wife as the beneficiary of your account if you die. You would be surprised how many people divorce and never remove their former spouses as their beneficiary. Whoops. Good luck. David CONSEQUENCES OF DELAY 02-14-2025.pdf

My QDRO Alternate Payee clients will move to a new home, or remarry and take a new spouse's surname, and they will notify the Social Security Administrations, Motor Vehicle Administration, their Post Office, credit card companies, banks, everyone they know EXCEPT the Plan Administrator of the defined benefit Plan from which they are hoping to someday receive a share of their former spouse's retirement and survivor annuity benefit. I have for years included in all of my QDROs the current addresses of both parties, their personal phone numbers, and their personal email addresses. My motive is to give the Plan Administrators a second and third shot at finding the parties at significant events such as retirement and death. You administrator folks should insist upon it. David

See my comment in bold type. I am re-married. I have a QDRO [Without knowing the name of the Plan it is difficult to answer your questions. In some plans, e.g., FERS and CSRS, you ex-wife's remarriage will result in a permanent loss of her survivor annuity benefits. In some plans, e.g. Military, remarriage of your ex-wife prior to age 55 will result in a suspension of survivor annuity benefit if her new marriage ends in divorce or the death of her new husband prior to age 55. You use the word QDRO which would indicate that you have an ERISA qualified plan, but many people use "ERISA" in a generic sense, e.g. Kleenex when it may actually be Scotties or Puffs. And even if it is an ERISA qualified plan, if you remarried and retired prior to the entry of the QDRO, your new wife and not your ex-wife would be entitled to your survivor annuity benefits. And without knowing the method by with you ex-wife's share is computed we cannot figure the present value of her future benefits in order to formulate a settlement offer. from my divorce some years ago that names my ex-wife to joint & survivor benefits from my pension. [The joint and survivor annuity required by law is not less than 50% of your retirement annuity, some plans offer 66.6%, 75% and 100%, and some people will agree to 25% or 33.3%.] I did not realize that this meant ex-wife would receive lifelong benefits. I was younger and emotional and bad lawyer if I knew that is what it meant I would have never agreed to this. Fast forward I hired a QDRO attorney who suggests I offer ex-wife a lump sum to cover her interest for the years we were married and age differential in exchange for ex-wife to remove herself from the survivor benefits. Ex wife concern is that if she removes herself, she could potentially get no payments if I were to pass away. Does this seem like a good option to offer? My pension would accept a modification, and I heard it's better to have agreed upon new QDRO in order for court to accept it. Any advice? [There are two components of you ex-wife entitlement: (i) a share of your retirement annuity generally computed by the time rule formula, that is: 50% of your retirement annuity multiplied by a fraction (the coverture fraction) where the numerator is the number of months during your marriage that you accrued retirement benefits, and the denominator is the total number of months during your employment that you accrued benefits. So, for example, if you monthly retirement annuity is $10,000 (unknown until you actually retire), and if the number of months during the marriage is 120 months and the total number of months is 360 months (unknown until you actually retire), then the formula is .5 x $10,000 = $5,000 x 120/360 = $1,666.67 to your ex-wife. Compute the present value of her payout and you might find out it is worth less than you think. The second component is the survivor annuity payable to your ex-wife after your death. Since women live 5 to 6 years longer than men, if you compute the present value of the survivor annuity it might also be less than you think. And if you're lucky and die with you boots on in your office she will get nothing. And she might just die before you do. So you see how many variables there can be.] [More. I don't believe the plan can accept a modification unless it's in the form of an Amended QDRO. I doubt that your consent would be enough, but who knows. Since you have a new wife the Plan Administrator owes her a fiduciary duty as a potential Alternate Payee and your new wife would have to consent to the Amended QDRO and would likely need to hire a her own attorney for advice. And depending of where you live, there may restrictions of the ability of the Court to amend a QDRO, e.g. statute of limitations, the doctrine of laches, the expiration of the time for an appeal of the original Judgment of Divorce, the failure of the Judgment of Divorce to reserve the Court's jurisdiction to amend the QDRO and the underlying Judgment of Divorce, or the fact that the Amended QDRO is not intended simply to clarify the underlying Agreement of the parties or the Judgment of Divorce, but is designed to change the terms of the underlying Agreement or Judgment of Divorce - not permitted in may states. And if you live in a community property state or in Louisiana nothing I said in this post may relevant.] [Your lawyer is on the right track, but make sure he/she considers the matters I have commented on above.]

The first 37 lines of the attached Excel spreadsheet are FedEx ERISA qualified pension and retirement Plans that filed a Form 5500 with the DOL in 2023. The searchable DOL website is at https://www.efast.dol.gov/5500Search/ You need to FIRST find out the exact name of the Plan you are dealing with, then you can check the Form 5500s and get the name and address and telephone number of the Plan Sponsor and the name and contact information for the Plan Administrator. Then you can call and ask for the "QDRO Package" that Plans are required to have available pursuant to ERISA Section 206(d)(3)(G)(ii), 29 U.S.C. § 1056(d)(G). If you would like to post the exact name we can get you the information instantly. Most likely you are dealing with FEDEX CORPORATION EMPLOYEES' PENSION PLAN FEDEX CORPORATION RETIREMENT SAVINGS PLAN FEDEX CORPORATION RETIREMENT SAVINGS PLAN FOR PUERTO RICO FEDEX EMPLOYEES CREDIT ASSOCIATION, FCU 401(K) PROFIT SHARING PLAN AND TRUST FEDEX FREIGHT, INC. PENSION PLAN FEDEX OFFICE AND PRINT SERVICES, INC. 401(K) RETIREMENT SAVINGS PLAN FEDEX SCA 401(K) RETIREMENT SAVINGS PLAN OR, you will likely find what you want in the 9 links attached. Most Fedex Plans use Alight/Qualified Order Center as its Third Party Administer ("TPA"). I retrieved them for you from their website. Procedures and model QDROs are included. Having found what you are asking for, the odds are 100% that you will NOT be able to prepare an acceptable QDRO that conforms to your State law, the terms of your Marital Settlement Agreement, the language of he Judgment of Divorce, and Federal law. In the meantime there a lots of problems that can occur if you delay having the QDRO prepared and approved in a timely way. See my "Consequences of Delay" Memo attached attached. I have been preparing such ORDERS for 39 years and I run into problems on a regular basis. You need to hire an attorney who knows what they are doing. FedEx 5500s.csv 0447103SPML001 (1).pdf 0447103SIML007 (2).pdf 0447103SIML006 (1).pdf 0447103SIML005.pdf 0447103SIML004 (1).pdf 0447103SIML003 (1).pdf 0447103SIML002.pdf 0447103SIML001 (1).pdf 04471GLPD001 (1).pdf CONSEQUENCES OF DELAY 02-14-2025.pdf

If you send me a copy of the written settlement agreement and the Divorce Decree I can be more helpful to you in understanding what you are entitled do. You have not said whether it's a defined contribution plan like a 401(k), or a defined contribution plan with survivor annuity benefit as a shared allocation or a separate interest allocation. David Goldberg marylandmediator@gmail.com Fax: 301-947-0501 Tel: 301-947-0500

Life expectancy needed by actuaries to compute survivor annuity benefits and to assure adherence that pursuant to ERISA joint and survivor annuity will be the “actuarial equivalent” of the single life annuity. ERISA §§ 205(d)(1)(B), (d)(2)(A)(ii), 29 U.S.C. §§ 1055(d)(1)(B), (d)(2)(A)(ii).

See my comments in bold type. My husband went through a nasty divorce. He did what was ordered by the Court, she received over $200,000 for house and he paid child support- never late. Part of the divorce was he get half of her pension, 401K from Disney. For years, it was a cat and mouse game where exwife and Disney Fidelity would not disclose the name of her plans. If his attorney did not obtain the name of her pension and/or retirement plan and copies of the most recent statements and summary plan descriptions PRIOR to any divorce yearing, you need report that attorney to the state Grievance Commission and accuse him/her of gross incompetence. Discovery, subpoenas filed (this was back in 2005). Finally in 2022, my husband got an award What was the form of the award? A lump sum payment or a monthly payout of benefits. I suspect it was the former and that would have been a defined contribution plan, like a 401(k). The Plan now has actual knowledge that there was a divorce and is holding up the start of her defined benefit plan (lifetime pension with a survivor annuity component) until the parties agree on something or the court enters an appropriate order. from Disney Fidelity. Not much, but it was purpose. Now in Feb, we get a letter from Disney Fidelity that ex-wife is trying to retire but her funds are being held up. Trying to speak to somebody from Disney Fidelity QDRO dept is virutally impossible, but we did get this one guy who was super helpful and although couldn't come right out - told my husband to do another QDRO because she had another plan which he could be entitled to. My husband and his previous lawyer back in 2005 always felt she hid money. His ex-wife has hired her new 5th lawyer and they are trying to do a Motion to Vacate the original QDRO back in 2005. My question is that the QDRO would apply to the plans the ex wife had during their marriage of 1988 to 2005, I don't understand why the guy from Disney Fidelity told us to subpoena Fidelity for her plan subsequent to 2005? Why then? Any advice would be so helpful. Thx Here are come of the Disney pension and retirement plans - some may be duplicates: DISNEY ASSOCIATED COMPANIES' RETIREMENT PLAN DISNEY HOURLY SAVINGS AND INVESTMENT PLAN DISNEY RETIREMENT SAVINGS PLAN DISNEY SALARIED PENSION PLAN A DISNEY SALARIED PENSION PLAN D DISNEY SAVINGS AND INVESTMENT PLAN DISNEY 401K MASTER TRUST DISNEY ASSOCIATED COMPANIES RETIREMENT PLAN DISNEY HOURLY SAVINGS AND INVESTMENT PLAN DISNEY SALARIED RETIREMENT PLAN DISNEY SALARIED SAVINGS AND INVESTMENT PLAN DISNEYLAND AND ASSOCIATED COMPANIES RETIREMENT PLAN THE WALT DISNEY COMPANY RETIREMENT PLAN MASTER TRUST WALT DISNEY PRODUCTIONS & ASSOCIATED COMPANIES RETIREMENT PLAN WALT DISNEY WORLD CO & ASSOCIATED COMPANIES RETIREMENT PLAN Disney Salaried Pension Plan A: This is a defined benefit plan, meaning benefits are based on a formula, and the company bears the investment risk. Disney Salaried Pension Plan 😧 Similar to Plan A, this is also a defined benefit plan. Disney Associated Companies' Retirement Plan: This plan covers employees of certain Disney-owned companies. Disney Hourly Savings and Investment Plan: This is a defined contribution plan, where employees contribute to their own accounts, and the company may also contribute. Disney Savings and Investment Plan: This is another defined contribution plan, similar to the Hourly plan. Disney Retirement Savings Plan: This is a defined contribution plan funded entirely by the company. 21st Century Fox America Consolidated Savings Plan 21st Century Fox America Consolidated Savings Plan (Child Support Order) BAMTECH Retirement Saving and Investment Plan BAMTECH Retirement Saving and Investment Plan (Child Support Order) Disney Hourly Savings and Investment Plan Disney Hourly Savings and Investment Plan (Child Support Order) Disney Retirement Savings Plan Disney Retirement Savings Plan (Child Support Order) Disney Savings and Investment Plan Disney Savings and Investment Plan (Child Support Order) Benefit Equalization Plan of ABC, Inc. (Separate Interest Award) Benefit Equalization Plan of ABC, Inc. (Shared Interest Award) Disney Associated Companies' Retirement Plan (Separate Interest Award) Disney Associated Companies' Retirement Plan (Shared Interest Award) Disney Salaried Pension Plan A (Separate Interest Award) Disney Salaried Pension Plan A (Shared Interest Award) Disney Salaried Pension Plan D (Separate Interest Award) Disney Salaried Pension Plan D (Shared Interest Award) Fox Union Pension Plan (Separate Interest Award) Fox Union Pension Plan (Shared Interest Award) The Walt Disney Productions and Associated Companies Key Employees Deferred Compensation and Retirement Plan (Separate Interest Award) The Walt Disney Productions and Associated Companies Key Employees Deferred Compensation and Retirement Plan (Shared Interest Award) Twenty-First Century Fox Retirement Plan (Separate Interest Award) Twenty-First Century Fox Retirement Plan (Shared Interest Award) Twenty-First Century Fox Supplemental Executive Retirement Plan (Separate Interest Award) Twenty-First Century Fox Supplemental Executive Retirement Plan (Shared Interest Award) See attached a brochure from Fidelity on Disney Plans. If you don't know the exact name of the Plan your attorney needs take the deposition duces tecum (bring documents), and/or a request for production of document, directed at somebody at Disney that can tell you EXACTLY plans in which she participates. Disney Plans.pdf

Peter Gulia: In EBSA Advisory Opinion 1999-13A - https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/1999-13a  the author begins as follows: "This is in response to your request on behalf of the UAL Corporation (UAL) and United Air Lines, Inc. (United) for an advisory opinion. Specifically, you ask how a plan administrator should treat domestic relations orders the plan administrator has reason to believe are "sham" or "questionable in nature." Later on the Opinion continues: "You have asked for an advisory opinion as to whether, and if so when, a plan administrator may investigate or question a domestic relations order submitted for review to determine whether it is a valid "domestic relations order" under State law for purposes of section 206(d)(3)(B) of ERISA." The response was as follows inter alia: "When a pension plan receives an order requiring that all or a part of the benefits payable with respect to a participant be paid 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 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) 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 pursuant to State domestic relations law that the parties are entitled to a judgment of divorce. See 92-17A (Aug. 21, 1992). Nevertheless, a plan administrator who has received a document purporting to be a domestic relations order must carry out his or her responsibilities under section 206(d)(3) in a manner consistent with the general fiduciary duties in part 4 of title I of ERISA." "For example, if the plan administrator has received evidence calling into question the validity of an order relating to marital property rights under State domestic relations law, the plan administrator is not free to ignore that information. Information indicating that an order was fraudulently obtained calls into question whether the order was issued pursuant to State domestic relations law, and therefore whether the order is a "domestic relations order" under section 206(d)(3)(C). When made aware of such evidence, the administrator must take reasonable steps to determine its credibility. If the administrator determines that the evidence is credible, the administrator must decide how best to resolve the question of the validity of the order without inappropriately spending plan assets or inappropriately involving the plan in the State domestic relations proceeding. The appropriate course of action will depend on the actual facts and circumstances of the particular case and may vary depending on the fiduciary's exercise of discretion. However, in these circumstances, we note that appropriate action could include relaying the evidence of invalidity to the State court or agency that issued the order and informing the court or agency that its resolution of the matter may affect the administrator's determination of whether the order is a QDRO under ERISA.5(5) The plan administrator's ultimate treatment of the order could then be guided by the State court or agency's response as to the validity of the order under State law. If, however, the administrator is unable to obtain a response from the court or agency within a reasonable time, the administrator may not independently determine that the order is not valid under State law and therefore is not a "domestic relations order" under section 206(d)(3)(C), but should rather proceed with the determination of whether the order is a QDRO." This opinion relates to a QDRO situation but I think it's instructive. A Plan Administrator should not ignore the obvious conclusions that might be drawn from suspicious facts. As a lawyer I live in a cynical world. I don't expect the best from people. I see and therefore expect the worst. I don't even trust my clients or opposing counsel or the judge on the bench. I am super cautious in advising my clients. It is expensive for a Plan to defend a lawsuit. If the Plan loses they will pay legal fees to the Plaintiff attorney and may wind up paying benefits twice. Here is a comment I made to one of your posts in 2022: "Posted August 6, 2022 "Peter: I found it, at least some of it. The case I mentioned was a 1999 case filed in the US District Court for the District of Maryland (Baltimore), Bowersox v. Bell Atlantic, No. 99-cv-176-CCB. The docket entries are attached. I don't have access to Pacer so this is about as far as I can go. "I realize the law may have changed in 23 years, but my recollection of the case is that the Plaintiff had either stolen or embezzled or maybe even negligent caused a loss and Bell Atlantic tried to access her 401(k) Plan as self help restitution. My files from those days are long gone and I cannot identify a memo of points and authorities from the docket entries." Bell Atlantic became convinced that they would lose if they continued, dismissed their case and paid me and my colleague $32,000 in legal fees. In today's dollars that would be about $62,000. If I was avising the Plan administrator under the facts presented by ejohnke, I would tell him NOT to put himself in the middle by exercising "discretion". That is a sure way to put one's head on the chopping block. He doesn't know what he doesn't know. And...... https://www.azquotes.com/picture-quotes/quote-distrust-and-caution-are-the-parents-of-security-benjamin-franklin-10-19-46.jpg There a times to be daring and time to be cautious. Let the parties resolve the matter in court. David

JM is correct that all you need to have in a FERS COAP is an agreement to pay $1/month from the employee's retirement annuity and $1/month from the survivor annuity and the former spouse can remain eligible for FEHB during his/her lifetime. The cost is 20 cents a month starting when the employee retires and ending when the employee dies. Whoever told you 1% was mistaken. 5 CFR § 838.133 Minimum awards. awards provides: "Payments under this part will not be less than one dollar per month. Any court order that awards a former spouse a portion of an employee annuity or a former spouse survivor annuity in an amount of less than one dollar per month will be treated as an award of an annuity equal to one dollar per month." If you really want to pursue it, read Holly v. OPM at -https://www.mspb.gov/decisions/precedential/HOLLY_NANCY_DC_0843_13_0329_I_1_OPINION_AND_ORDER_1033309.pdf David

Is the impaired wife merely unable to execute a spousal consent on the beneficiary designation, or is she so cognitively impaired that she doesn't understand what she is being asked to consent to? I think it might be better for the family to go to court and ask for the appointment of a guardian for the wife. The guardian will be invested with the power to make a decision about whether it is in the wife's best interest to consent to a change in the beneficiary. Even if the Plan Documents permit the use of a power of attorney as suggested by Peter, keep in mind that Plan Administrators have a fiduciary duty toward the participant and the beneficiary and you don't want to be seen as promoting or facilitating the interests of one over the other. I would be very careful. What will happen to the wife when dad dies and the daughter is now the beneficiary? Will the daughter take care of mom? If so, then why not appoint the daughter as the guardian of the person and of the property of the wife?

Section IRC § 401(k)(14)(C)(w)(t)(f), provides that you will be removed from you home at night and placed on an airplane that will take you to a prison in El Salvador without due process where you will be incarcerated for the rest of your life. So your best course of action to protect yourself is to interrogate the prospective lying SOS in the customary way before permitting the hardship distribution. https://www.meisterdrucke.uk/kunstwerke/1260px/English%20School%20-%20Cuthbert%20Simpson%20also%20Symson%20Simson%20or%20Symion%20tortured%20on%20th%20-%20%28MeisterDrucke-673723%29.jpg

I neglected to quote another important paragraph from page 1 of the TSP Death Benefit Booklet attached to my first response. "As a participant in the Thrift Savings Plan (TSP), you will likely accumulate a sizeable amount of money in your TSP account over the years. One of the things you need to think about now is, “Who will receive the money in my account when I die?” This may be an uncomfortable question, but it is very important not to put off decisions regarding who should receive your money. You need to take the time to ensure that your money goes where you want. You cannot rely on your will,prenuptial agreement, separation agreement, property settlement agreement, or court order to specify who will inherit your TSP account because we do not use any of these documents to distribute death benefit payments."

If she worked for the VA and her plan is a Government Plan it must have been a TSP account. It not it would be nice if you would identify the exact Plan. See page 1 of the attached TSP pamphlet that provides: "Your Beneficiary Designation Order of Precedence. If you die with a balance in your TSP account and you did not designate beneficiaries for that account, the account will be distributed according to the following order of precedence required by law: 1. To your spouse 2. If none, to your child or children equally, with the share due any deceased child divided equally among that child’s descendants 3. If none, to your parents equally or to your surviving parent 4. If none, to the appointed executor or administrator of your estate 5. If none, to your next of kin who is entitled to your estate under the laws of the state in which you resided at the time of your death" Here is another source. https://www.tsp.gov/bulletins/14-4/ See 5 U.S. Code § 8424(d) and (h). If it's not a TSP, get back to me. David TSP Death Benefits.pdf

See my responses in all bold type. "Obligor has a Pension Is it a defined contribution plan or a defined benefit plan? Normally the word "pension" means a defined benefit plan and such plans will have survivor annuity beneficiary of a future stream of income. But if it's a defined contribution plan it will have a "beneficiary" of a lump sum payment. If you don't know what sort of plan you are dealing with you need to get back us with the exact name of the plan. but he passed away. Pension has a beneficiary. Obligor left owing Child Support Arrears of 110k. He had no other Assets. The Attorney Generals Special Collection Unit Since you are dealing with the Attorney General it is most likely a State plan of some sort. There are lots of reasons you might not be able to recover your child support judgment. It may be that you did not obtain a Domestic Relations Order prior to the obligor's death and the Plan was required to pay the benefit to the named beneficiary in the absence of a preexisting DRO. In many state, county and municipal plans that involve police, firefighters or correction officers benefits can only be payed to a spouse and not a former spouse. Timing is important. You mention a "lien" but I don't know what that is in Texas. In most states when a judgment is entered by a court it become a lien against the debtor's real estate in the county where the judgment was entered. has closed my case an won’t tell me why.. a Money Judgement was given to me by the Courts in 2007. I’ve reach out to : Family Law Attorneys, Estate Attorney, Congressman , Texas House of Rep never replied. Under the Family Code Chapter 157.3271- LEVY ON FINANCIAL INSTITUTION ACCOUNT OF DECEASED OBLIGOR. The section of the Code can be found at https://codes.findlaw.com/tx/family-code/fam-sect-157-3271/ It is filled witn time limits that must be followed. Did you follow them. It may very well be that your ability to collect the judgment expired in certain number of years after the judgment was entered. In Texas the statute of limitation for the collection of child support seems to be 10 years after the child reaches age 18. Why am I having so much trouble trying to find the help I need. I wouldn’t think it would be so complicated but what do I know.. I’m not an Attorney. Any help would be appreciated. You used the word "assigned" to the beneficiary. What does that mean. "Paid out" to the beneficiary? How was the beneficiary related to the decedent? There is a possibility that if you are the rightful recipient of the plan benefits you file a "post distribution" suit against the beneficiary. But the answers to all of these questions depend on whether the beneficiary received a lump sum or is receiving a payout in the future. But this is something that requires the services of a knowledgeable family lawyer in the County where all of this transpired. BTW: If you expect that the Attorney General's office is there to serve and protect the citizens of the state, that's only true when it comes to filing suit against criminals. They mostly don't exist to help somebody like you (or me in Maryland) in navigating the complexities of State law. I had a case recently where they were 4 MD state plans in which the opposing party might have participated - he was uncooperative to the extreme. The AG would not tell me which one - privacy they said - even though they had certified copy of the Judgment of Divorce and the DRO. I was forced to submit 4 DROs that were identical except for the name of the Plan. They rejected 3 and accepted the 4th one. Hard to believe. Good luck. DSG

Peter: This is a belated response to your post in March, 2024: See attached Memo dealing the courts that have found plans who did not believe they were ERISA qualified were in fact qualified. Other workarounds are also discussed. David PRELIMINARY ISSUES.pdf

This is over a year late, but see if the attached Memo helps you find the answer to your question about the ability of a court to order a non-qualified plan to enforce a QDRO. I think the answer is the Court can do so if they first find that the plan is in fact qualified (if all of the criteria for qualification) even though the plan doesn't think it's qualified. There are a few other workarounds in the Memo. David (Let me know if you received this.) PRELIMINARY ISSUES.pdf

Can one of you fine folks tell me how to DM someone who posts a message that I cannot respond to online? I assume DM means direct message? Thanks, David

So rare is QOSA that I searched every appellate decision, State and Federal, in the USA and found only a handful of cases that even mention the option. See https://scholar.google.com/scholar?start=0&q="Qualified+Optional+Survivor+Annuity"&hl=en&lr=lang_en&as_sdt=20000006&as_vis=1 Some of these cases discuss value, but it's my impression that it's actuarial value based on the life expectancies of he parties that ignores the fact that you might walk out of your house tomorrow and get run over by a bus. Learn something every day. David

Wow. In 38 years of preparing thousands of QDRO I have never come across a QOSA. But assuming I know what it is and the rationale for it's existence, logic compels me to suggest that the Alternate Payee is going to receive one or the other, not both. If the Participant dies before retirement the QPSA will be computed in one way; and if the Participant dies after retirement the QOSA (or QJSA) will be computed in some other way (or maybe not). The Alternate Payee doesn't get both and the Alternate Payee is not in control of that he/she receives. So it seems that in order to maximize the benefits the Participant needs to determine whether he should kill himself before retirement or retire while he is still alive to retire. 😄 Or perhaps ask the actuary.