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My comments in all bold type. Participant's divorce decree from a decade ago granted his ex-spouse 50% of the pension benefit Was it an ERISA qualified plan? How about providing the name of the plan identified in the divorce decree. accrued during the term of the marriage. No QDRO was ever filed and the participant passed away a few months ago. Did the divorce decree award survivor benefits? Did the Participant retire during the marriage and name his then spouse as the survivor annui ty of a QPSA and 50% QJSA as required by law? The ex-spouse has retained an attorney to draft and file a posthumous QDRO. Pursuant to the PPA of 2006 I assume? The draft DRO itself is well-written, but the original divorce decree submitted with the draft DRO is a problem. It lists an incorrect plan name and awards the ex-spouse benefits from that plan. 26 USC 414(p)(2) provides: (2)Order must clearly specify certain facts A domestic relations order meets the requirements of this paragraph only if such order clearly specifies— (A)the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order, (B)the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined, (C)the number of payments or period to which such order applies, and (D)each plan to which such order applies. If the divorce decree does not name the correct name of the Plan you cannot submit a valid QDRO for the correct plan. There is nothing to indicate the parties ever intended for the ex-spouse to share in the benefits from this plan. By "this plan" I assume you mean the incorrectly named plan? If the incorrect plan is named in the divorce decree, wouldn't that be binding. In my state if the judge says apples, but mean oranges, it's going to be apples unless addressed and corrected in a timely manner by a motion to alter or amend or a motion to revise or an appeal. In some cases, a court will grant nunc pro tunc (retroactive) orders to correct clerical errors, etc. However, there are cases stating a retroactive order cannot be used to create new substantive rights that didn't previously exist. Correct. In this case its not clear whether the local family law court would modify the original decree, Res judicata? Statute of limitations. Laches? or whether the plan could accept that modified order. (The participant had remarried and there is a viable argument that 100% of the survivorship rights vested in the new spouse at the time of the participant's death.) In many states the divorce decree will reserve jurisdiction to enter or correct a QDRO, but you cannot use that language to modify the underlying source of the obligation. In other words, you cannot use the power of the court to enter or revise a QDRO to modify the language of the document creating the right to the QDRO, i.e, the MSA incorporated into the divorce decree or, if there was no MSA, then the divorce decree itself. As for remarriage and the rights of a new spouse, read: Hopkins v. AT&T Global Information Solutions, 105 F.3d 153 (1997) Rivers v. Central and South West Corporation, 186 F.3d 681 (United States Court of Appeals, 5th Cir. 1999) at- http://scholar.google.com/scholar_case?case=2296953953561556363&q=rivers+central+and+south+west&hl=en&as_sdt=2,9 Dahl v. Aerospace Employees' Retirement Plan, a 2015 case from the U.S. District Court for the Eastern District of Virginia (and cases cited therein) - https://scholar.google.com/scholar_case?case=3487596170773082469&q=dahl+v.+aerospace&hl=en&lr=lang_en&as_sdt=20000003&as_vis=1 See also Vanderkam v. PBGC, 943 F. Supp.2d, 130 (2013) setting forth a thorough discussion of this issue. And the 2015 case of Dahl v. Aerospace Employees' Retirement Plan, No. 1:15cv611 (JCC/IDD), United States District Court, E.D. Virginia, Alexandria Division. https://scholar.google.com/scholar_case?case=3487596170773082469&q=dahl+v.+aerospace&hl=en&lr=lang_en&as_sdt=20000003&as_vis=1 Any thoughts or ideas are appreciated. The posthumous QDRO rules from the DOL are not instructive and the cases are all over the board, even after PPA. Attached find a recent rough memo re: Post Mortem and nunc pro tunc QDROs. You also need to address the role of the Plan Administrator in looking behind the language of the QDRO submitted to them. Her is a letter that I sent to a Plan Administrator: I want to bring the following matters to your attention. 1. The QDRO I prepared was approved by both parties. 2. The QDRO was signed by the Court and a certified copy forwarded to you. 3. By law you act as a fiduciary with respect to both parties. ERISA § 404(a)(1) and ERISA § 409. I would like to bring to your attention a number of relevant authorities that deal with your ability as the Plan Administrator to “look behind” a QDRO that has been submitted to you. A 1992 ERISA Advisory Opinion suggests a plan’s administrator need not review the correctness of a State court’s decision about whether a person is, under a State’s domestic-relations law, the participant’s spouse, former spouse, child, or “other dependent”. See ERISA Adv. Op. 92-17A (Aug. 21, 1992) (A plan’s administrator may treat as a participant’s former spouse for QDRO purposes a person the State court decided was never the participant’s spouse.)- https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/a dvisory-opinions/1992-17a.pdf. Brown v. Continental Airlines, Inc., 647 F.3d 221, 223 (5th Cir. 2011) (“[ERISA § 206(d)(3)(D)(I)] does not authorize an administrator to consider or investigate the subjective intentions or good faith underlying a divorce.”) - https://casetext.com/case/brown-v-continental-airlines-inc. See also Blue v. UAL Corp., 160 F.3d 383, 385 (7th Cir. 1998) (“ERISA does not require, or even permit, a [retirement plan] to look beneath the surface of the order. Compliance with a QDRO is obligatory[.]”) - https://casetext.com/case/blue-v-ual-corporation#p385. And see Matthew v. E.I. Dupont, 3rd Cir. 2017, citing Blue and Brown: “Additionally, DuPont's interpretation subverts the deferenceowed to state-court QDROs by ERISA plan administrators. Our sister circuits have explained that "ERISA does not require, or even permit, a pension fund to look beneath the surface of the order." Brown v. Cont'l Airlines, Inc., 647 F.3d 221,227 (5th Cir. 2011) (citations omitted); see also Blue, 160 F.3d at 385. Here, the terms of the QDRO support Matthews' interpretation.” Attached are a few advisory opinions that may or may not be helpful. Good luck. David POST MORTEM and nunc pro tunc QDROS.pdf DoL Advisory Opinion 1990-46A.pdf Advisory Opinion 1999-13A _ U.S - Sham Divorces.pdf Advisory Opinion 1992-17A - duty of Plan Admin.pdf

Hmmmmm. CPD. Would that be Chicago Police Department California Police Department Columbus Police Department (Ohio) Cincinnati Police Department (Ohio) Chattanooga Police Department (Tennessee) Cambridge Police Department (various locations) Clarkstown Police Department (New York) Corvallis Police Department (Oregon) Clearwater Police Department (Clearwater, Florida, USA) Chandler Police Department (Arizona) Charlotte Police Department (North Carolina) I likely doesn't matter. The award of a retirement annuity normally terminate on the death of the participant or the death of the alternate payee and not on the remarriage of either one. It is common for a former spouse to lose the right to a survivor annuity is he/she marries prior to a certain age (usually 55) - unless the employee retired during the marriage and elected survivor benefits the his/her then spouse. On the other hand many plans provide that police, firefighters and corrections employees cannot be required to elect a survivor annuity for a former spouse --- only for a current spouse. You should be able to find out the answer to your question from whoever administers the CBP pension plan, likely some governmental office. If you are a CPD recipient of benefits you have correspondence from them. Call them. If you know the full and exact name of the plan - Google it. David

You posted: "I have a shared QDRO where the form of payment for the AP is whatever is chosen by the ptp. Doing the math, if I apply the calculation for the marital portion (50% of the marital portion calculated using a coverture fraction) first and then apply the J&S factor for the chosen form of payment to the two pieces I come up with different figures than if I apply the J&S factor to the whole benefit and THEN apply the marital portion calculation. Which method is correct? I assume you are dealing with as ERISA qualified defined benefit plan. I assume you are not dealing with a separate interest allocation. I assume that "J&S" stands for Qualified Joint and Survivor Annuity. I don't know what "QJSA" has to do with the retirement annuity part of the QDRO. I don't know what the coverture fraction has to do with the "QJSA". 1. If you have a shared allocation of the retirement annuity, the formula is - 50% of gross monthly retirement annuity, if, as and when paid to the Participant, multiplied a fraction, the numerator of which it the number of months of creditable service accrued by the Participant during the marriage of the parties, and the denominator of which is the total number of months of creditable service accredited by the Participant at the time of retirement. The only variable is the "50%" and in many states the trial court has the discretion to vary that percentage to achieve an equitable distribution, however the truth is that 50% is almost universal. The goal is the provide the Alternate Payee with 50% of the "marital portion" and to accomplish that goal you apply the coverture fraction. 2. If you are dealing with survivor annuity benefits you have more issues. If, for example, the Participant retired during the marriage, he/she would have been required to elect a QJSA of not less than 50% of the gross retirement annuity, unless waived by the Alternate Payee. See - 26 CFR 1.401(a)-20 See https://www.law.cornell.edu/cfr/text/26/1.401(a)-20 That election will survive a later divorce - and that sounds like what you are referring to in your post. If the Participant retires after the divorce, the QDRO will usually define the amount of the survivor annuity benefit. In some plans it can be 25%, 33%, 50%, 66%, 75% or 100%. 3. I don't think I have ever seen a plan other than under FERS or CSRS where the amount of the survivor benefit is defined with reference to the coverture fraction. For example, under FERS and CSRS it is possible to use what they call a "prorata share" pursuant to 5 CFR 838.922(a) [see https://www.law.cornell.edu/cfr/text/5/838.922 ] as: “(a) ‘Prorata share’ means the fraction of the maximum survivor annuity allowable under § 831.614 or § 842.613 of this chapter whose numerator is the number of months of Federal civilian and military service that the employee performed during the marriage and whose denominator is the total number of months of Federal civilian and military service performed by the employee.” I have never seen this sort of language in an ERISA qualified plan QDRO. Maybe I have never had to address that option in the 38 years that I have been preparing pension and retirement plan Orders. The PBGC model orders provide that an Alternate Payee can be awarded, for example, 40% of the QPSA benefit, and if the plan’s automatic survivor percentage for the QPSA is 50%, then the Alternate Payee will receive 20% of the Participant’s survivor benefit. But I cannot find similar provisions in that related to ERISA qualified plans. See https://www.pbgc.gov/wr/benefits/qdro I suspect the language of the QDRO is causing your confusion. If you want a better answer please provide a copy of the QDRO redacting only the names of the parties and the case number. And tell me what is the Plan's automatic QDSA percentage. Perhaps the answer is to multiply the follow the model of the PBGC model oder and compute the fraction as set forth in 5 CFR. 838.922(a). So if the coverture fraction is 240/300 = 80%, the Alternate receives 80% of the automatic 50% QJSA. David - 301-947-0500

I would like to see the exact language of your plan defining "vesting". In the attached FAQ from the DOL it says: "In a defined contribution plan such as a 401(k) plan, you are always 100 percent vested in your own contributions to a plan, and in any subsequent earnings from your contributions. However, in most defined contribution plans you may have to work several years before you are vested in the employer's matching contributions. (There are exceptions, such as the SIMPLE 401(k) and the safe harbor 401(k), in which you are immediately vested in all required employer contributions. You also vest immediately in the SIMPLE IRA and the SEP.)" I have never seen a Plan Document that did not defined vesting in terms of "service", or that participating in the underlying Plan without more accrued time toward vesting. BTW: Note that "participant" is a noun and "participate" is a verb. So must a participant participate to accrue vested service? The DoL works in mysterious ways. David FAQ from DoL - Vesting.docx

1. I assume that you are using the term "QDRO" because the Plan in you case is an ERISA qualified plan, and that you are not using "QDRO" as a generic name for other sort of plan, e.g. an EDRO, RBCO, COAP, DRO, RBO, IRA, etc. 2. I assume that the purpose of the QDRO is (i) to transfer marital property from one party to the other incident to a divorce; and that it is not being used (ii) to collect child support arrears. The tax consequences respect to "(ii)" will make impact the manner in which the payments can be made inasmuch as the Participant is deemed to be the distributee of money paid for child support (see below) and income taxes must be withheld from the account before the amount is balance of the account is transferred to the Alternate Payee on behalf of the child (sometimes referred to as the Alternate Recipients), and this must be done by grossing up the amount to be transferred. For example if the court order allocates $100,000 to the former spouse for child support, that must be grossed up to $125,000 to permit the Plan to withhold 20%($25,000) for income taxes. [Note 10% may be the minimum percentage that must be withheld.] If the account only has $100,000 you must withhold 20% = $80,000, so the amount does not enough to pay $100,000. N.B. All Agreements by the parties or Orders of the Court entered after January 1, 2019, will have no tax consequences to either party for the payment/receipt of alimony, so the analysis above re: child support will apply to alimony as well. 3. Some Plans, like Warner Brothers-Discovery provide, "If the Participant’s vested liquid balance is insufficient to fund the Alternate Payee’s award, the Order will be non- qualified." The is common for most Plan where Fidelity is the Third Party Administrator. 4. Other plans provide: " On the date that the Plan Administrator segregates Alternate Payee’s assigned share of the benefits as set forth above, to the extent there are not sufficient assets in Participant’s account(s)/investment funds to satisfy the award of benefits to Alternate Payee, then this order shall be interpreted as an award of One Hundred Percent (100%) of Participant’s Total Vested Account Balance under the Plan as of such segregation date. 5. Another option: Reject the QDRO and let the parties or the judge figure out how the Plan is supposed to withhold taxes on Plan account money that must be distributed in full. 6. Yet one more option: Pay out 100% of the Plan account to the Alternate Payee and issue a 1099-R to the Participant, and don't worry about withholding on the theory that the alternate recipient are not receiving taxable retirement benefits and is not a party to the tax consequences imposed on the Participant and should not have the amount ordered reduced. See IRC 402(e)(1)(A) - "For purposes of subsection (a) and section 72, an alternate payee who is the spouse or former spouse of the participant shall be treated as the distributee of any distribution or payment made to the alternate payee under a qualified domestic relations order (as defined in section 414(p))". The spouse or former spouse is NOT the distributee of payments made to the child c/o a parent. And this is consistent with the law that makes child support not taxable to the recipient parent. The same would be true in the case of a Participant in pay status with respect to a defined benefit plan. 7. You can always file an interpleader and deposit the money into the Registry of the court and let the judge decide. If AJC is a Plan Administrator, you Plan Documents should address this potential issue. DSG

I need you first to confirm that the "QDRO" you are asking about relates to a pension or retirement plan that fall under the Federal law the Employee Retirement Income Security Act of 1974 ("ERISA"). You can verify that the plan is in fact under ERISA at https://www.efast.dol.gov/5500Search/ where you can search for the Plan Sponsor or the Plan Name. Plans under Federal plan such as FERS, CSRS, FSRS, US Military, and most State, County, Municipal Plans are not under ERISA and are referred to as, for example "Eligible Domestic Relations Orders", or "Domestic Relations Orders", or "Retirement Benefits Orders" ARE NOT ERISA qualified. The word "Qualified" will not be present. Assuming your QDRO is actually an ERISA qualified plan, you are in luck. The Pension Protection Act of 2006 regulations provide: 29 CFR 2530.206 - Time and order of issuance of domestic relations orders (a) Scope. This section implements section 1001 of the Pension Protection Act of 2006 by clarifying certain timing issues with respect to domestic relations orders and qualified domestic relations orders under the Employee Retirement Income Security Act of 1974, as amended (ERISA), 29 U.S.C. 1001 et seq. * * * * * (c) Timing. (1) Subject to paragraph (d)(1) of this section, a domestic relations order shall not fail to be treated as a qualified domestic relations order solely because of the time at which it is issued. (2) The rule described in paragraph (c)(1) of this section is illustrated by the following examples: Example 1. Orders issued after death. Participant and Spouse divorce, and the administrator of Participant's plan receives a domestic relations order, but the administrator finds the order deficient and determines that it is not a QDRO. Shortly thereafter, Participant dies while actively employed. A second domestic relations order correcting the defects in the first order is subsequently submitted to the plan. The second order does not fail to be treated as a QDRO solely because it is issued after the death of the Participant." https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XXV/subchapter-D/part-2530/subpart-C/section-2530.206#p-2530.206(a) Some recent cases dealing with this issue are: Thomas v. Sutherland at https://scholar.google.com/scholar_case?case=1601430218420084129&q=Thomas+v.+Sutherland+&hl=en&as_sdt=20006 and Yale-New Haven Hospital v. Nicholls, 788 F.3d 79, 85 (2d Cir. 2015) and Miletello v. R M R Mechanical Inc., 921 F.3d 493 (USCA 5th Cir. 2019) I can provide more citations if you need them. The bottom line is that the death of Court has jurisdiction under Federal law to issue a post mortem (posthumous) QDRO following the death of the Participant. There are some states like my home state, Maryland, where the court was held to have jurisdiction to issue a posthumous Eligible Domestic Relations Order with respect to a Participant in the Maryland State Retirement and Pension and Retirement System. BUT, if the Participant was already retired and had elected a single life annuity, and if the retirement took place during the marriage, that means that the Alternate Payee must have waived her right to insist on her statutorily required qualified joint and survivor annuity - that is an annuity to the Participant during his life and a survivor annuity for the Alternate Payee (a spouse or former spouse) during her lifetime. If the retirement took place after the divorce and before the QDRO had been entered, then I am not sure that a post-mortem QDRO could be effective to transform the single life annuity to include a survivor annuity for a former spouse. That would require some research. Another possible issue is if the Participant remarried and then retired - his surivivor annuity would vest in his new spouse and the former spouse would be outta luck.

You have a lapsed beneficiary of a pension plan, presumable ERISA qualified. The options in an ERISA qualified plan are: (i) there would be an Order of precedence in the Plan documents that will award the decedent's share to his wife, children, parents, siblings, estate, etc; or, (ii) the beneficiary designation form will condition receipt of his share by saying "if he survives the settlor, and if he doesn't survive the settlor, then the decedent's share passes to the other members of the class to which he was a member, that is the other two children in this case; or, (iii) the share of the deceased beneficiary reverts back to the Plan. In my experience, absolute silence on the subject is rare. If the annuity is ERISA qualified, and if ERISA does not address the situation, or if the annuity is not ERISA qualified, then state law will apply (and state law will not/cannot be preempted by ERISA). See my attached Memo re: terminable interests. But see Boggs v. Boggs - at https://supreme.justia.com/cases/federal/us/520/833/#tab-opinion-1960143 where the Supreme Court held that ERISA preempts state community-property law allowing a non-participant spouse to transfer by a testamentary instrument an interest in undistributed pension plan benefits. That would seem to strip the deceased party in the CuseFan example, and his heirs and next of kin would have no claim to the lapsed 1/3rd share, and the deceased party's share would pass to the other two children. Buy on the other hand we have FERS and OPM and 5 CFR 838.237(b)(3) and the attached Memo demonstrating how another Federal Law deals with this situation. And here is how TSP handles a deceased beneficiary - https://www.tsp.gov/for-beneficiaries/determining-beneficiaries/ Not the comment: "A will, prenuptial agreement, separation agreement, property settlement agreement, or court order will not override either a beneficiary designation or the order of precedence." At the end of the day it is difficult to understand how the Plan passed muster without addressing this matter. David TERMINABLE INTEREST DEFINED BENEFIT PLANS REV'D 03-16-24.pdf OWNERSHIP INTEREST 5 CFR 838.237(b)(3).pdf

You have submitted this question at least 3 or 4 times and I have provided you with online responses twice and a private response once. If you cannot provide the information I asked for I cannot help you and nobody else on this blog can help you. There are things that can be done to collect your alimony arrears, but you are not an attorney and will most likely find it impossible to handle it yourself. So you are going to need to find a lawyer.

Can a QDRO be used for Alimony Arrears in Maryland.If your question is whether a QDRO can be used to COLLECT alimony arrears, the answer is YES if you have a judgment for the arrears. Also, if the original term of Alimony had ended (but never received Alimony payments, hence why a QDRO is being done), can you file for extension/modification of Alimony even if it is after the original awarded alimony term ends, but there are still arrears? NO, not unless the alimony is modifiable. If the alimony was not paid you can sue and get a judgment and collect it via a QDRO or by way of an attachment of the payor's assets or by a garnishment of the payor's income. The first step is to get a judgment for the arrears with pre-judgment and post-judgment interest of 10% per annum - a very fine investment return.

I cannot comment on loan procedures, but ERISA Section 206(d)(3)(G)(ii), 29 U.S.C. § 1056(d)(G), requires sponsors of qualified retirement plans to maintain written procedures for the administration of qualified domestic relations orders. I don't know who it is that is supposed to "sign" such procedures. I don't know how you can maintain written procedures if you have not adopted them, or how you can adopt them without a written and signed document. But I am on the QDRO preparation side, not the Plan Administrator or TPA side of the matter so what do it know.

If you are receiving a separate interest annuity there is no survivor annuity benefit. You are the owner of your separate interest, just as if you had been working for the company and retired. Your annuity will continue for your entire lifetime. And your separate interest annuity is not dependent on his retirement. The fact that your annuity will continue for your lifetime is the actuarial equivalent of what you would have received if your were awarded a shared interest. You don't get both See below re: shared interest. You can choose to start your separate annuity if he is over age 50 and is eligible to retire. It's actually a little more complicated than that - IRC §414(p)(4)(B), known as the "age 50 rule", provides that the “earliest retirement date” is: "the earlier of two dates: (i) the date on which the Participant is entitled to begin receiving benefits per the terms of the Plan; or, (ii) the later of: 1) the date the Participant reaches age 50, or: 2) the earliest date on which the Participant could begin receiving payments under the Plan if the Participant separated from service." If you are already in pay status you are receiving your separate interest and that's exactly what you are entitled to receive. The sort of survivor annuity you are talking about is associated with a shared interest annuity whereby you receive a share of HIS annuity if, as and when he retires, and when he dies you receive a survivor annuity of a certain percentage. I don't know where you are listed as a surviving spouse, but I don't think that had anything to do with your entitlement for a second survivor benefit. BUT all separate interest annuities are not the same. Some provide that if he dies before he meets the age 50 rule requirement, that you will indeed receive a survivor annuity as if you had been awarded a shared interest. But as I said, if you are in pay status you are likely getting everything you are entitle do. If you want to send me a copy of the QDRO I will be happy to review it for you - no charge. Email it to me at marylandmediator@gmail.com David

"The participant filled out a QDRO from the third-party administrator for a 457 (b) non-government account." Were the funds to be paid FROM the 457(b) account or TO the 457(b) account? It is not clear what sort of Plan was the transferor and what sort of Plan was the transferee. It is not the job of the Participant/Payor to ask the Plan Administrator or the TPA to transfer funds to the Alternate Payee's IRA or other eligible retirement account. It is the job of the Alternate Payee to make that election after the QDRO has be approved and in most cases the Plan will contact the Alternate Payee and ask if he/she want's a tax free rollover to an IRA or other eligible retirement account, or a taxable distribution (less 20% Federal tax withholding, but no 10% early withdrawal penalty no matter what the age of the Alternate Payee). The QDRO in most cases does not spell out the options available to the Alternate Payee, although I do so for informational purposes to let the Alternate Payee that he/she has those options. It seems clear that you are one of the parties and not a lawyer and have no idea how to present you situation. You need to find a lawyer that understands the situation.

Betcha the Participant is trying to keep a spouse from receiving any share of the Participant's account without having to first terminate his/her employment. Do your Plan documents or the governing law or regs require notice to or consent by a spouse? See https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-hardship-distributions ...that starts with: "Although not required, a retirement plan may allow participants to receive hardship distributions. A distribution from a participant’s elective deferral account can only be made if the distribution is both: >Due to an immediate and heavy financial need. >Limited to the amount necessary to satisfy that financial need." How can the Plan Sponsor comply with this requirement by allowing an employee to self-certify that they are telling the truth. How about due diligence? Check out all of the links at the bottom of the IRS page and tell the Plan Administrator to ask their lawyer for advice so they will have somebody to sue when the Plan Administrator is sued.

Are you sure it's a 401(a) Plan? Who is the employer/sponsor of the Plan? What's the exact name of the Plan? Was the beneficiary actually named on a beneficiary form submitted by the decedent? Or did the Plan follow an "order of preference" in making the payout?

Nobody on this blog can give you a valid response unless we can read the QDRO - all of it, every page. You can redact it by crossing out the case number and the names of the parties and attach it to your response. Do not redact the State where it was entered since that may be important with respect to whether or not the court still has jurisdiction to amend the QDRO. Do not redact the name of the Plan since that will matter since there are tens of thousands of different plans that operate under various Federal statutes, state, county, city and municipal plans, and they do not all operate in the same manner. . And you need to confirm that the QDRO was approved by the Plan and has been making payments to your ex-wife since your retirement. If there is a separate Order for alimony, such as the Judgment of Divorce, redact and attach that as well. We will then be in a position to help. You need to keep in mind that a QDRO is a division of PROPERTY accrued during the marriage. Alimony is not considered property. DSG

Let me start with you last question, "Would the same be true in scenarios where the participant divorced many years ago, they subsequently got remarried, and the benefit is payable to the new spouse. In these scenarios, the new spouse is almost never able to locate the divorce documentation." If the Participant retires and has remarried before a QDRO is submitted to the Plan, the former spouse loses all rights to a survivor annuity benefit. Such benefits vest in the new spouse and the former spouse is SOL. See the 1997 decision of the US Court of Appeals, 4th Circuit, in Hopkins v. AT&T Global Information Solutions, 105 F.3d 153 (USCA 4th Cir. 1997) at http://scholar.google.com/scholar_case?case=9954117838131396049&q=hopkins+at%26T+global&hl=en&as_sdt=2,9 followed by the 5th Circuit in Rivers v. Central and South West Corporation, 186 F.3d 681 (United States Court of Appeals, 5th Cir. 1999) at- http://scholar.google.com/scholar_case?case=2296953953561556363&q=rivers+central+and+south+west&hl=en&as_sdt=2,9: "This Circuit agrees with the Fourth Circuit's decision in Hopkins and adopts its rationale. Rivers failed to protect her rights in Franklin's pension plan by neglecting to obtain a QDRO prior to Franklin's retirement date. Consequently, Franklin's pension benefits irrevocably vested in Mrs. Franklin on the date of his retirement and Rivers is forever barred from acquiring an interest in Franklin's pension plan." To the same effect see Dahl v. Aerospace Employees' Retirement Plan, a 2015 case from the U.S. District Court for the Eastern District of Virginia (and cases cited therein) - https://scholar.google.com/scholar_case?case=3487596170773082469&q=dahl+v.+aerospace&hl=en&lr=lang_en&as_sdt=20000003&as_vis=1 Other cases following Hopkins are collected at: https://scholar.google.com/scholar?start=0&q="Hopkins+v.+AT%26T"&hl=en&as_sdt=20000006 See also Vanderkam v. PBGC, 943 F. Supp.2d, 130 (2013) setting forth a thorough discussion of this issue. As far as actual notice is concerned, here are some reading materials: Two DoL Advisory Opinions making it clear that the Plan need look behind QDROs it receives to see it it conforms to State law or is for any reason irregular. Their only focus is to determine whether or not it's a QDRO under ERISA. Brown v. Continental Airlines, Inc., 647 F.3d 221, 223 (5th Cir. 2011) (“[ERISA § 206(d)(3)(D)(I)] does not authorize an administrator to consider or investigate the subjective intentions or good faith underlying a divorce.”) - https://casetext.com/case/brown-v-continental-airlines-inc. See also Blue v. UAL Corp., 160 F.3d 383, 385 (7th Cir. 1998) (“ERISA does not require, or even permit, a [retirement plan] to look beneath the surface of the order. Compliance with a QDRO is obligatory[.]”) - https://casetext.com/case/blue-v-ual-corporation#p385. And see Matthew v. E.I. Dupont, 3rd Cir. 2017, citing Blue and Brown: “Additionally, DuPont's interpretation subverts the deference owed to state-court QDROs by ERISA plan administrators. Our sister circuits have explained that "ERISA does not require, or even permit, a pension fund to look beneath the surface of the order." Brown v. Cont'l Airlines, Inc., 647 F.3d 221,227 (5th Cir. 2011) (citations omitted); see also Blue, 160 F.3d at 385. Here, the terms of the QDRO support Matthews' interpretation.” The point is that if a plan is not required or even permitted to look behind an actual QDRO that they have in hand, it would make no logical sense for the Plan to be required to engage in a search for a (potentially) missing QDRO. The estate or the new beneficiary can search the court files, contact the lawyers for the parties in the state court proceeding, see if they can find a Marital Settlement Agreement (MSA) incorporated into a Judgment of Divorce (JoD), or, if there was no MSA, whether or not the JoD itself addressed the allocation of pension benefits, and if a QDRO was ever entered by the Court and if anyone asked for a certified copy and sent it to the Plan. All of this is not the Plan's problem. In some states, like my home state, Maryland, if the MSA for the JAD do not specifically address and award survivor benefits the Alternate Payee does not get them no matter what is in the MSA or the JoD. I have had this sort of happen with both ERISA and non-ERISA plans. Federal employees who divorce will cancel the health insurance for their former spouses and that's enough for OPM to generate a letter asking for a copy of the MSA when the employee files his Application for Retirement, or the JoD, or the Court Order Acceptable for Processing. This is despite the fact that OPM acts pursuant to rules similar to those discussed above. For example: Rosato v. OPM, 165 F.3d 1377 (U.S.C.A. Federal Circuit 1999), in holding that: "Federal law thus provides the method whereby divorcing spouses may divide their entitlements to federal employee benefits. The statute and rules are clear: OPM will not look behind a state court divorce decree or property settlement order to ascertain the intent of the parties. So long as the decree or order complies with the specificity requirements of the regulations, which implement the statutory requirement that the decree or order "expressly" direct payment to another than the employee, OPM will follow its prescriptions. An order lacking the requisite specificity will be rejected by OPM, with an opportunity for the applicant to cure any indicated error." And in Hayward v. OPM, 578 F.3d 1337 (U.S.F.C 2009), where the issue was whether or not the parties intended to include survivor annuity benefits for the former spouse: "We recognize that "OPM is neither qualified nor obligated to resolve disputes about the import of state divorce decrees ... OPM's task is 'purely ministerial' with respect to court ordered property settlements." Perry v. Office of Pers. Mgmt., 243 F.3d 1337, 1341 (Fed. Cir. 2001) (quoting Snyder, 136 F.3d at 1477); see also 5 C.F.R. § 838.101(a)(2). We also recognize that "neither we nor the Board is permitted by the terms of 5 U.S.C. § 8341(h) to rewrite or equitably reform state court divorce decrees or settlement agreements that do not unambiguously provide for a CSRS annuity." Fox, 100 F.3d at 145. Thus, the intent to award a CSRS survivor annuity must be clear." and see Beckstead v. Office of Personnel Management, 842 F. App'x 578 (USCA Fed Cir 2021) - https://scholar.google.com/scholar_case?case=13223774605474473561&q=beckstead+v.+opm\&hl=en&as_sdt=3,29 So I would give them a finite period of time (not the inapplicable 18 months) to produce evidence that a QDRO exists. If they cannot, then that's the end of it. Under the Pension Protection Act of 2006 it became possible for a court to enter a posthumous (post mortem) QDRO. BUT, many state will not enter such orders if the request is not made within a certain period of time (ex: 30 day appeal time), or within the time set forth in the applicable statute of limitations. In the Federal system they have the draconian "1st 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. Usually it is NOT the first order. The first order is the JoD. David Advisory Opinion 1992-17A - duty of Plan Admin.pdf Advisory Opinion 1999-13A _ U.S - Sham Divorces.pdf

Have you notified his spouse of his request for a hardship distribution? Or to get his/her consent? Does the Plan require you to do so.

By what authority did the Plan Administrator transfer retirement benefits between divorcing spouses without a QDROs? Did I miss the Memo?

Since Jack is not an attorney and has wasted everybody's time with 24 posts and a refusal to take any suggestions offered to him, the odds are pretty high that the QDRO will not be accepted.

There is actually a case out there (I can't find it at the moment that held that the plan cannot allocate plan benefits 1/3rd to each beneficiary since, e.g. $100,000/3 = $33,333.333333333333 and that in our monetary system you can only divide money up to 99 pennies past the decimal point. So they reverted to the default order of precedence. The same would true any number that extend beyond 2 spaces past the decimal point.

My Gains and Losses Memo addresses gains and losses in multiple contexts. The underlying concept is the same. The Alternate Payee's share should be adjusted from the valuation date to the date of transfer the Alternate Payee. That date of transfer can be to a separate account in the same plan for the Alternate Payee's benefit, or a rollover to an IRA or other eligible retirement account, or a direct taxable distribution. The QDRO can address a percentage or a dollar amount and both can be adjusted for gains, losses and investment experience. It is a two edged sword. So you don't think that this concept of "ownership interest" is unique to Maryland and to the cases I have cited, take a look at every case in the US that has addressed 5 CFR 838.237(b)(3). There is some duplication from the Gains and Losses Memo. There is a malpractice case pending in Maryland where the the parties agreed to a lump sum and did not address gains and losses. The attorney for the Alternate Payee decided to add gains and losses and nobody noticed. That decision, coupled with inexplicable delay by the attorney in getting a QDRO entered by the Court and sending a certified copy to the Plan Administrator, resulted in an over $300,000 loss of value of the Alternate Payee's share. Many plans have default provisions that either adjust for gains and losses, or not, unless otherwise set forth in the QDRO. Peter speaks to the obligation of the Plan Administrator to consider state law. He is right. I have often found it necessary to send this letter to the Plan Administrator: I want to bring the following matters to your attention. 1. The QDRO I prepared was approved by both parties. 2. The QDRO was signed by the Court and a certified copy forwarded to you. 3. By law you act as a fiduciary with respect to both parties. ERISA § 404(a)(1) and ERISA § 409. I would like to bring to your attention a number of relevant authorities that deal with your ability as the Plan Administrator to “look behind” a QDRO that has been submitted to you. A 1992 ERISA Advisory Opinion suggests a plan’s administrator need not review the correctness of a State court’s decision about whether a person is, under a State’s domestic-relations law, the participant’s spouse, former spouse, child, or “other dependent”. See ERISA Adv. Op. 92-17A (Aug. 21, 1992) (A plan’s administrator may treat as a participant’s former spouse for QDRO purposes a person the State court decided was never the participant’s spouse.)- https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/a dvisory-opinions/1992-17a.pdf. Brown v. Continental Airlines, Inc., 647 F.3d 221, 223 (5th Cir. 2011) (“[ERISA § 206(d)(3)(D)(I)] does not authorize an administrator to consider or investigate the subjective intentions or good faith underlying a divorce.”) - https://casetext.com/case/brown-v-continental-airlines-inc. See also Blue v. UAL Corp., 160 F.3d 383, 385 (7th Cir. 1998) (“ERISA does not require, or even permit, a [retirement plan] to look beneath the surface of the order. Compliance with a QDRO is obligatory[.]”) - https://casetext.com/case/blue-v-ual-corporation#p385. And see Matthew v. E.I. Dupont, 3rd Cir. 2017, citing Blue and Brown: “Additionally, DuPont's interpretation subverts the deference owed to state-court QDROs by ERISA plan administrators. Our sister circuits have explained that "ERISA does not require, or even permit, a pension fund to look beneath the surface of the order." Brown v. Cont'l Airlines, Inc., 647 F.3d 221,227 (5th Cir. 2011) (citations omitted); see also Blue, 160 F.3d at 385. Here, the terms of the QDRO support Matthews' interpretation.” But that does not relieve the attorneys who prepare QDROs to abide by the laws in force in their state. The Plan cannot look at a plan that says ownership interest and gains and losses and decide to ignore it. David OWNERSHIP INTEREST 5 CFR 838.237(b)(3).pdf

I would be more interested to know whether or not, if the Participant and his spouse divorce after the purchase of the lifetime annuity, a court enters a QDRO awarding the Alternate Payee a lump sum transfer of $2.425 million, whether that required lump sum transfer would supersede the lifetime annuity that the Participant purchased. Or can the QDRO provide the Alternate Payee be awarded an if, and and whey payout of the lifetime annuity received from time to time by the Participant?. Or can the QDRO provide that the plan provide the Alternate Payee with the equivalent of a 50% QJSA? I have been raising these issues since Secure 1.0 and never received a response. Thanks, David

The jokes write themselves. See https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-hardship-distributions Do you need to notify and/or have the consent of the spouse or former spouse? Be careful. A pending divorce can get you caught in a lawsuit. Repeat these word - Fiduciary duty to all participants and beneficiaries. What is a failed septic system anyway? It usually happens slowly. You don't wake up one day and it's failed. The people who clean the septic system periodically can tell you if it's failing. I'm not sure this passes the smell test. Yes - I been there and done that. What verification do you have that the septic system has failed. They can usually get it fixed temporarily before the do major repairs just by having it pumped out. I smell a rat. David

Let's talk about the LAW. It will require some reading. See the attached Memo addresses cases from all over the US. In Maryland gains and losses and investment experience are implicit since out law authorizes the Court to award an OWNERSHIP INTEREST in a pension or retirement plan and treats the Participant as a trustee for use of benefit of the Alternate Payee. Get back to me with any questions. Gains, Losses, Investment Exp - 09-29-2022.pdf

Do we know for certain whether or not the participant understood the differences between traditional and Roth deferrals? Were those differences explained to the participant by the plan administrator? In writing Is the Plan administrator required to provide such explanations to the participant? Was the election for confusing? Ex: [ ] Roth [ ] Traditional I have more than a few times been confused about which box to check, the one before or the one after. Do you see 0% or 1% on the carton of mlk below? I would be stunned that any regular employee would have a clue about all to the differences between Roth and traditional deferrals.