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Are you talking about an ERISA qualified plan? Were payments from a defined benefit plan being made to the Alternate Payee at the time of the Alternate Payee's death? Why would not such payments terminate at the death of the Alternate payee? Or are you dealing with a lump sum an a annuitized payment from a defined contribution plan per Secure 2.0? Or are you dealing with FERS or CSRS where 5 CFR 838.237(b) applies? I am sorry for being confused.

Follow up. See these appellate decisions that support my comments above: 152 A.D.3d 765 (2017) 59 N.Y.S.3d 421 2017 NY Slip Op 05818 In the Matter of ANTHONY J. CHRISTIE, Deceased. DIANE D. EDWARDS-McMAHON, Respondent; SANDRA L. CHRISTIE, Appellant. BOARD OF TRUSTEES OF THE INDIANA STATE COUNCIL OF PLASTERERS & CEMENT MASONS PENSION FUND, Plaintiff(s), v. ASHLEE STEFFENS, KENDRA D. STEFFENS, and BRIAN KINKADE in his capacity as Interim Director of the MISSOURI DEPARTMENT OF SOCIAL SERVICES, Defendant(s). Case No. 4:12CV513 JCH. United States District Court, E.D. Missouri, Eastern Division. (October 22, 2012) 963 F.3d 1197 (2020) Wanda CROWDER, Plaintiff-Appellant, v. DELTA AIR LINES, INC., et al., Defendants, The Delta Air Lines, Inc. Family-Care Savings Plan, the Administrative Committee of Delta Air Lines, Inc., Fidelity Workplace Services, LLC, Defendants-Appellees. No. 19-12342. United States Court of Appeals, Eleventh Circuit. (June 26, 2020) and 943 F.Supp.2d 130 (2013) John VANDERKAM and Gaylyn Dieringer, Plaintiffs, v. PENSION BENEFIT GUARANTY CORPORATION and Melissa VanderKam, Defendants. Civil Action No. 09-cv-1907 (RLW). United States District Court, District of Columbia. (May 7, 2013). .

Fidelity acts as the Third Party Administrator ("TPA") of 2 HP defined contribution plans. They are - HP Inc. 401(k) Plan HP Inc. Deferred Profit-Sharing Plan ...and 3 defined benefit plans - EDS Retirement Plan HP Inc. Cash Account Pension Plan HP Inc. Retirement Plan We can ignore the 2 defined contribution plans and assume that you are likely dealing with the HP Inc, Retirement Plan. Attached is a copy of the instructions that Fidelity will provide to those of us who prepare QDROs. I you look at page 16 you will see: "1. If the Participant has commenced benefits prior to the qualification of the Order, the Alternate Payee will receive survivor benefits from the Plan following the death of the Participant ONLY IF the Participant elected a benefit form that provides for survivor benefits and named the Alternate Payee as beneficiary at commencement. The Order cannot alter a previously elected benefit form or beneficiary designation." What this means is that timing is everything. If your husband retired before the divorce and elected you as the recipient of his Qualified Joint and Survivor Annuity following his death (and assuming that you survive his death), that election is locked in when he commences receipt of his benefits (goes into pay status). It might have been subject to change by a QDRO if he was not yet in pay status, but that ship has sailed. Note that the language quoted above also appears in the "Cash Account Pension Plan" instructions and in the "EDS Plan" instructions as well. Federal and most State laws require that a spouse will receive a survivor annuity automatically unless waived. See, e.g., ERISA § 205(a)-(d), 29 U.S.C. § 1055(a)-(d), and see REA 26 CFR § 1.401(a)-20, Answer 25(b)(3) that provides: "(3) Divorce. If a participant divorces his spouse prior to the annuity starting date, any elections made while the participant was married to his former spouse remain valid, unless otherwise provided in a QDRO, or unless the participant changes them or is remarried. If a participant dies after the annuity starting date, the spouse to whom the participant was married on the annuity starting date is entitled to the QJSA protection under the plan. The spouse is entitled to this protection (unless waived and consented to by such spouse) even if the participant and spouse are not married on the date of the participant's death, except as provided in a QDRO." What this mean is that if an employee retires while still married, the spouse will receive a survivor annuity (unless waived by the spouse in advance) and no subsequent divorce will undo that mandatory election regardless of whether or not the parties or the judge have addressed it in the divorce proceeding. You would not know this, and most attorneys do not understand this. The rule is different with respect to non-ERISA Plans. For example,Federal retirement Plans under FERS, CSRS, FSPS or the Military, a survivor annuity elected by the employee at retirement and while still married will not survive the divorce (unless the employee/Member was retired and in pay status or died prior to divorce) and must be reinstated with an appropriate court order, a Court Order Acceptable for Processing (“COAP”) or a Military Retired Pay Division Order (“MRPDO”). What you two have waived is the receipt of any share of each other's retirement annuity (paid from and after the Participant goes into pay status and terminating on the Participant's death). But when the Participant dies, the survivor annuity will pass to whoever was elected at the time of retirement. You are getting it whether you wanted it or not. lFidelity is not the easiest TPA to deal with, but if the Plan Documents do not address your issue and allow something that ERISA does not provide, you are likely not going to succeed. There may be some wrinkle in your state law that may help, but you are going to have to find an attorney experienced in QDRO preparation to help you. And, BTW, you have no appeal from your divorce case. Neither party or the judge made any mistakes reviewable by an appellate court. You find yourself in this predicament as a result of your own actions and the refusal of Fidelity to do what you want. If you sue anybody it will be Fidelity and you will wind up in Federal Court and spend tens of thousands of dollars fighting this battle. And just so you know, the survivor annuity benefit is not free. It is paid for by an actuarial deduction from the retirement annuity computed by an actuary hired by Fidelity for that purpose. And that cost is coming "off the top" so both of you are contributing to the cost of each other's survivor annuity. That should make this outcome more palatable. Workaround: You two can make a deal to pay whatever you receive in QJSA benefits back to the deceased party's estate (less the state and Federal taxes you were required to pay on the survivor annuity income) for distribution to you desired beneficiary(ies). Or you can hire an actuary to determine the present value of the QJSA to be received by the survivor, estimate and deduct taxes, have the potential survivors make lump sum payments to other party, and just keep the survivor annuity. This is not very accurate since you don't know the exact amount of the survivor annuity or when payments will start or the life expectancy of the Participant and of the survivor. So the actuary will use life expectancy tables and historical interest rates to discount the value of a stream of payments. But it's better than nothing. David HP DP Instructions.pdf

Good article - https://www.mayerbrown.com/en/insights/publications/2025/08/revisiting-the-state-of-the-law-in-erisa-forfeitures-cases

The law of the State where the divorce was granted will determine whether or not the filing of an appeal stays the finality of the divorce. In Maryland, my home state, you must file a Notice of Appeal within 30 days of the entry of the judgment by the Clerk of the Court. If you want to stay the divorce judgment from going into effect, you need to file a separate motion. This might include a Motion to Alter or Amend the Judgment (Rule 2-534), a Motion for New Trial (Rule 2-533), a Motion to Revise Judgment (Rule 2-535), or a Motion to Stay Pending Appeal (Rule 2-632). Many appeals do not challenge the validity of the divorce itself but relate to other matters that will not vacate a valid Judgment of Absolute Divorce, e.g. the failure of the trial court to enter a QDRO. The continuation of a employer sponsored medical plan will depend on the timing of the divorce. COBRA protects the rights of the former spouse to a continuation of coverage if she makes a timely election. COBRA also requires the Plan to provide notice to the soon to be former spouse that her coverage will be terminated unless she makes such an election. If you cancel the former spouse's medical coverage under the circumstances you describe, and without further inquiry, you do so at your peril. Notify your medical insurance carrier of the situation. Hire a lawyer is you don't have one. David

Two decisions from the highest appellate court in Maryland: Blaine v. Blaine, 336 Md. 49, 646 A. 2d 413 (1994) - "Even where the language of a statute is plain and unambiguous, we may look elsewhere to divine legislative intent; the plain meaning rule is not rigid and does not require us to read legislative provisions in rote fashion and in isolation. Motor Vehicle Admin. v. Shrader, 324 Md. 454, 463, 597 A.2d 939 (1991)." Rosemann v. Salsbury, 412 Md. 308, 987 A.2d 48 (2010) - "If the language of the statute is clear and unambiguous, we need look no further than the language of the statute to ascertain the Legislature's intent. Anderson v. Council of Unit Owners of the Gables on Tuckerman Condominium, 404 Md. 560, 572, 948 A.2d 11, 19 (2008)." ....and they have no shame. I was on the losing side of the Blaine case. This was NOT what I learned in law school about interpretation of legislative enactments. Here is a recent and very comprehensive discussion from the Congressional Research Service. https://www.congress.gov/crs-product/R45153 David

Died? Cold. Harsh. How about: "departed this life", perished, croaked, expired, flat-lined, "passed away","passed on", "bit the dust", "kicked the bucket", "went belly-up", "gave up the ghost", "bought the farm", "gone to glory", "shuffled off this mortal coil", "moved beneath the grass", "mortis est", "gone to his eternal rest", "met his maker", "pushing up daisies", "augered in", "cashed in his chips", "ate a Twinkie", "living on a farm", "riding the pale horse", "shaking hands with Elvis", "six feet under", "sleeping with the fishes".

In a terrible accident at a railroad crossing, a train smashed into a car and pushed it nearly four hundred yards down the track. Though no one was killed, the driver of the car was injured and took the train company to court. At the trial, the engineer insisted that he had given the driver ample warning by waving his lantern back and forth for nearly a minute. He even stood and convincingly demonstrated how he'd done it. The jury believed his story, and the suit against the train company was decided in it's favor and against the driver of the car. "Congratulations," the lawyer for the train company said to the engineer when it was over. "You did superbly under cross-examination." "Thanks," he said, "but the other attorney sure had me worried." "How's that?" the lawyer asked. "I was afraid he was going to ask if the lantern was lit!"

In preparing QDROs it is typical for the parties or the court to value a defined contribution plan account as of a "Valuation Date". It might be the date the parties separated, the date the signed their Marital Settlement Agreement, the date of entry of the Judgment of Absolute Divorce, or some other mutually agreed upon date. The amount in the account as of the Valuation Date will commonly be adjusted for gains, losses and investment experience from the Valuation Date to the date the alternate payee's share is transferred to him/her. Such a transfers might be: (i) when the Alternate Payee's share is segregated into a separate account for his/her benefit; or, (ii) when the Alternate Payee's share is rolled over to the Alternate Payee's IRA or other eligible retirement account; or (iii) when the Alternate Payee takes a taxable distribution from all or a part of the balance to which he/she is entitled. The moment that the in-house Plan Administrator hires or changes a Third Party Administrator ("TPA") the TPA will no longer have access to any records that predate the TPA's involvement and will no longer be able to compute gains, losses and investment experience retroactively. The situation is the same if the Form 5500s were never filed and if the Plan Administrator does not have the records necessary to prepare them at this late date. The answers to most of your questions are online. David

You would think that if i searched every one of the estimated 400 million records, including journal articles, books, case law, and patents indexed by Google Scholar, and 9,426,534 published and unpublished cases decided by every court and judicial tribunal in the United State, you would find at least one instance where the words "top heavy plan" or "26 U.S. Code § 416" and QDRO or DRO or "Qualified Domestic Relations Order" or "Domestic Relations Order or rollover" or "eligible retirement plan" or spouse or "former spouse" or husband or wife might intersect. But that appears not to be the case. I don't see that the purpose of the top heavy rules are impacted by a QDRO-directed rollover to an eligible retirement plan. Especially would this be the case if the divorced husband rolled over a share of his ABC 401(k) account to his former spouse with an ABC 401(k) account, with the result that the new amount in the cumulative hands of both parties would be the same. But what do I know? The worse grade I received in my academic life was in my first year of college - a "D" in "Accounting 101". David

5 U.S. Code § 8341 - Survivor annuities provides: "(g)In the case of a surviving spouse whose annuity under this section is terminated because of remarriage before becoming 55 years of age, annuity at the same rate shall be restored commencing on the day the remarriage is dissolved by death, annulment, or divorce, if— (1)the surviving spouse elects to receive this annuity instead of a survivor benefit to which he may be entitled, under this subchapter or another retirement system for Government employees, by reason of the remarriage; and (2)any lump sum paid on termination of the annuity is returned to the Fund." >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> 5 U.S. Code § 8445 - Rights of Former Spouse provides: "**** (c)The commencement and termination of an annuity payable under this section shall be governed by the terms of the applicable order, decree, agreement, or election, as the case may be, except that any such annuity— **** (2)except as provided in subsection (h), shall terminate no later than the last day of the month before the former spouse remarries before becoming 55 years of age or dies. **** (h) (1)Subsection (c)(2) (to the extent that it provides for termination of a survivor annuity because of a remarriage before age 55) shall not apply if the former spouse was married for at least 30 years to the individual on whose service the survivor annuity is based. (2)A remarriage described in paragraph (1) shall not be taken into account for purposes of section 8419(b)(1)(B) or any other provision of this chapter which the Office may by regulation identify in order to carry out the purposes of this subsection." >>>>>>>>>>>>>>>>>>>>>>>>>>>> The ability to restore a lost survivor annuity set forth in 5 U.S. Code § 8341 does not appear in 5 U.S. Code § 8445. It is my impression by 8341 only applies to employees under CSRS and that 8445 only applies to employees under FERS. Am I correct? Here are 3 cases that don't help much. Ross v. OPM, DOCKET NUMBER DE-0831-12-0154-I-1; DATE: April 15, 2013 https://www.mspb.gov/decisions/nonprecedential/ROSS_SCARLET_L_DE_0831_12_0154_I_1_FINAL_ORDER_813400.pdf Kindall v. OPM, 347 F.3d 930 (2003) https://scholar.google.com/scholar_case?case=10160421678461792528&q="5+usc+8341(g)"&hl=en&as_sdt=20000006 and Downs v. OPM, 69 F.3d 1141 (1995) https://scholar.google.com/scholar_case?case=2585981013695329568&q="5+usc+8341(g)"&hl=en&as_sdt=20000006 Thanks, David Goldberg marylandmediator@gmail.com

Define and distinguish types of rollovers: (i) from participant's own account; and, (ii) form spouse's retirement account pursuant to a QDRO.

I don't agree. The Plan Administrator is not permitted to look behind a DRO and determine whether or not it is valid under state law, or is a sham DRO, or otherwise defective. But their attorneys tell them to CYA in the safest way possible.....do nothing. See my attached Memo Looking Behind a QDRO.pdf

You are asking the wrong question. The question is not whether or not you need a DRO to transfer pension and retirement assets in connection with a divorce? The answer to that is yes absolutely for many of the reasons pointed out above. The question is whether or not a domestic relations order be issued as part of a divorce proceeding to be a QDRO? And the answer to that depends on state law and the plan documents. Read the attached Memo that starts Maryland law and ends with "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)." David CAN A TSP RBCO AND FERS COAP BE ENTEREDIF THE PARTIES ARE ßLEGALL.pdf

Let me see if I understand. You have a policy which is not part of the plan documents that limits a participant's right to borrow his own money from his own 401k account to a limited number of circumstances. Your participant borrowed money on one pretext, but used the money for another non-permitted purpose but is faithfully making the repayments. And your policy is to cause this participant financial grief, thereby ensuring his future love and affection for his employer?

The reality is that the participant is borrowing his own money and will pay it back to himself with interest. It is not a "loan" in the classical meaning of that word. It is more akin to taking $20 out of the cookie jar in the kitchen on Monday and paying $21 back on the following Monday. A promissory note is a legal instrument under the uniform commercial code and carries with it all sorts of rights, duties and obligations that seem out of place in your situation. I agree with Peter that all you need is some written acknowledgment of the obligation to repay the money. And that isn't even true if The participant decided to terminate his employment and turn the "loan" into a taxable distribution.

Get a second opinion. If K-1 is earned income it will be subject to withholding, FICA and Medicare and can be used to compute retirement contributions.

I will join the group and, without knowing any of the facts will assume that it's an ERISA qualified plan, assume that it's a defined benefit plan, assume that it relates to a shared interest allocation of benefits and not to a separate interest, and assume that it can be traced to the holding in Boggs. But first, read about Terminal Interest Plans and Ownership Interest 5 CFR 838.237(b)(3), both of which permit what Boggs will not, that is, to ability to name a beneficiary to receive unpaid benefits otherwise payable to the Alternate Payee. But are we reading Boggs correctly?. Find Boggs at https://supreme.justia.com/cases/federal/us/520/833/ That's the real question. What do you think? David TERMINABLE INTEREST DEFINED BENEFIT PLANS REV'D 03-16-24.pdf Ownership Interest - 5 CFR 838.237(B)(3).pdf

The basic rule at OPM is that they do not make retroactive payments if the former spouse's share of the employee retirement annuity has already been paid to the employee. So any payments made by OPM to the former spouse will be taxable to the former spouse and not included in the income of the employee. That is the way it's intended to be. Let's first deal with the arrears: "§ 838.234 Collection of arrearages. Specific instructions are required before OPM may pay any arrearage. Except as provided in § 838.225(b), OPM will not increase a former spouse's share of employee annuity to satisfy an arrearage due the former spouse. However, under § 838.225, OPM will prospectively honor the terms of an amended court order that either increases or decreases the court order's entitlement." This would seem to suggest that there must be a "amended" court order directing OPM to add $X to the former spouse's payment in order to collect arrears. Or maybe not. But: "§ 838.235 Payment of lump-sum awards. If a court order acceptable for processing awards a former spouse a lump-sum amount from the employee annuity and does not state the monthly rate at which OPM should pay the lump-sum, OPM will pay the former spouse equal monthly installments at 50 percent of the gross annuity (subject to the limitations under § 838.211) at the time of retirement or the date of the order, whichever comes later, until the lump-sum amount is paid." But we are not dealing with a lump sum payment is the payments to the former spouse is being paid as an annuity. These CFR regs are talking about a preexisting arrears created in the manner you address in your question, that is, a party refuses to sign the Court Order Acceptable for Processing and retires (or is already retired). It is not called and QDRO and if you do OPM will reject it. So (ignoring for a moment the "amended" language,) you would ask your judge to award the percentage or amount or formula amount due for the Agreement or Court Order, for example, "plus $500/month for 90 months", or come up with a formula that includes the arrears, and hope OPM is okay with it. But your question relates to the tax impact of payments of arrears made directly from the employee to the former spouse and not by OPM: (i) they are not alimony, and even if they were alimony they would not be deductible by the employee or taxable to the former spouse; (ii) they are not a payment of taxable income by the former spouse that would make them subject to state and Federal tax withholding. What I would do is determined the total arrears to be paid plus prejudgment interest at the Florida judgment rate, 9.15%, deduct what would be the former spouse's state and Federal tax burden (not FICA or Medicare), add and that is what he pays her as a lump sum. Good Luck. David

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