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Under ERISA the Plan Administrator is to implement the QDRO presented to it so long as it's permitted by the plan documents. They are not to question whether or not the state law was properly applied or the motive of the parties. See, Kari E. Kennedy, Executrix v. Plan Administrator for Dupont Savings and Investment Plan, 129 S.Ct. 865 (2009); PaineWebber v. East, 363 Md. 408, 768 A.2d 1029 (2001); Brown v. Continental Airlines, Inc., 647 F. 3d 221 (5th Cir., 2011); but cf: U.S. v. Brazile, No. 4:18CV56 RLW, United States District Court, E.D. Missouri (2018). I have been preparing QCROs for many years and it often happens that the parties will, for good reasons, do something other than what is in the Judgment of Divorce or in their Separation Agreement. They may decide, for example, to change from a shared interest to a separate interest allocation of benefits. Of they may decide to reduce an Alternate Payee's share of benefit in exchange for a transfer of other assets. On the other hand it might just be a case of the person who prepared the QDRO doesn't know what he/she is doing. If you approve (Qualify) the QDRO and send a determination letter, and they don't object, then you have done your duty. You need not become an advocate for either party. On the third hand we all have moral compasses and many plan administrators such as OPM want to see a copy of the JAD and a copy of the separation agreement, if any, and cannot avoid judging the COAP (for FERS and CSRS) or QDRO with an eye on what was intended.

It would help is you would copy and paste the exact language of the QDRO. There are generally two methods of allocating defined benefit plans. The first is what is known as a "shared interest" allocation where the Alternate Payee receives a share of the Participant's benefit if, as and when the Participant receives it, plus there is normally a survivor annuity benefit payable after the death of the Participant. The other method is the "separate interest" allocation where the Alternate Payee receives a share of the Participant's accrued benefits as of the date of the divorce and will have the option to begin receipt payments even if the Participant is not in payout status, but only if the Participant is over age 50 and eligible to retire. Bottom line, nobody can give you a valid answer without seeing the QDRO. David

Is this still an open issue? If so, read the attached Memo re: Gains and Losses. I suggest that they are implicit. David GoldbergGains and Losses Excerpt 10-29-15.pdf