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There are defined contribution plan that can generate a statement on a daily basis. Most send a statement monthly, some quarterly and I have seen a few that only value Participant's account only on December 31st each year. The citation from Gina seems to confirm that 12 months is the mandatory time for benefits statements.

See my comments in bold type. P and K divorced 7/29/15. Decree says P is to split 401k from marriage 1997 to divorce w k. QDRO finally started in 11/23, signed by courts 3/24. 401k plan transferred to IRA by P’s previous Employer. Unknown to both P and K. What do P and K stand for? QDRO relates to 401k not IRA and does not correspond with decree, (K manipulated documents and P signed thinking the had to match decree or courts wouldn’t have signed, not the case) So it’s a blessing that it got transferred to an IRA. When P contacted 401k company-Fidelity to see if QDRO was being processed in March, that is when he found out about it being transferred to Insperia Financial as an IRA. That company does not process QDRO and Ca Labor Retirement Service stated that QDRO is not Valid as it relates to a 401k not and IRA. Insperia Financial says that P and K have to agree on either a percentage or an amount. Funds are locked down until then. Most large IRA custodians do not require a court order to transfer IRA account balances in connection with a divorce. They have their own forms. See attached Fidelity form. I cannot find a comparable form at the website of Insperia Financial. That doesn't mean that they don't have one. You will have to contract them and ask. The problem is that all of the forms require the parties to attach a copy of the Court Order or Judgment of Divorce that directs the transfer. Here is a pretty generic Order to transfer IRA account balances. The first problem you have is that the 401(k) Order cannot be used to to transfer IRA balances. You need a new Court Order. Will the court have jurisdiction to enter a new Order? Good question. The law will vary in different states. There may be a statute of limitations that will deprive the court of jurisdiction, or the doctrine of laches may apply, of the trial court may not have expressly retained jurisdiction to enter a new order. One other problem you may encounter is that IRA custodians are unable or unwilling to adjust for gains and losses (like a 401(k) or other defined contribution plan will do) and you will have to present evidence that the 401(k) would have increased in value from the valuation date to the date you client receives her share. Likely an stockbroker or financial analyst or CPA will need to testify. See my Gains and Losses Memo. And as soon as you file a court proceeding you may find that the Participant will move his IRA to a bank in his brother's name is Toronto, or will take it out and hide it under a mattress or in a bank in Tierra del Fuego. You can always file suit against the Participant for contempt and ask for a just with pre-judgment interest at your state's legal judgment rate. And while you are filing suit, file a claim with the grievance commission in your state and allege that the attorney failed to adhever the the competence requirements of the Rules of Professional Competence, and file for malpractice as well. Here are a number of documents that relate to the standard of care, not only in Maryland, but nationwide. See particularly the Memo re: Consequences of Delay. k won’t sign unless the split of the 401k includes Child Support and Alimony as well. K has now levied P bank acct for child support and on Sept 9 a withholding order will take the total child support from his IRA, K is willing to sign for a lump sum agreed amount. Allocation of retirement and pension benefits have nothing to do with child support and alimony, unless of court the purpose of the transfer was to recover alimony and/or child support arrears. In most states the payment of child support is viewed as a DUTY while the payment of retirement benefits is viewed as a debt. Good luck, David Question: Can a settlement agreement be made, staying the they agree on this amount, and that it covers the split, child support, and alimony. Have them both sign with notary. Is that legal to be done? If so do you know someone who could it? Fidelity IRA Form.pdf DRAFT IRA ORDER.pdf Grievance Comn v. Fisher.pdf Grievance Comn v. Gray.pdf Grievance Comn v. Hill.pdf Grievance Comn v. Kovacic.pdf Grievance Comn v. Tolar.pdf JLG Article - It Ain't Over.pdf List of Defined Contribution & Benefit Plans- Qualified or Not - 6-4-21 (3).pdf Malpractive - Lawyer Liability in QDRO Cases - Willick (1).pdf Notice of Adverse Claim- Interest Cover Letter (2).pdf Notice of Adverse Claim-Interest.pdf Potts re Time to Prepare QDRO.pdf QDROS -MALPRACTICE AND RULES OF PROFESSIONAL CONDUCT.pdf Shulman QDRO Handbook Table of Contents 2020 (1).pdf Top-QDRO-Mistakes-Attorneys-Make-and-How-to-Avoid-Them (1) (2).pdf CONSEQUENCES OF DELAY 04-15-24.pdf Gains, Losses, Investment Exp - 09-29-2022.pdf

"I received half of my exes retirement. IF YOU RECEIVED YOUR HALF, WHY ARE YOU POSTING THIS MESSAGE? I ASSUME YOU MEANT THAT THE COURT AWARDED YOU "HALF" IN THE JUDGMENT OF DIVORCE OR BY INCORPORATING A WRITTEN AGREEMENT INTO THE JUDGMENT OF DIVORCE, BUT YOU FIRST SENTENCE IS NOT CLEAR. WHAT WE NEED IS A TIMELINE. IF THERE WAS A WRITTEN AGREEMENT, WHAT WAS THE DATE OF THAT AGREEMENT? WHAT WAS THE DATE OF THE JUDGMENT OF ABSOLUTE DIVORCE? WHAT WAS THE DATE THE QDRO WAS FIRST SENT TO THE PLAN ADMINISTRATOR? WHAT DID THE PLAN ADMINISTRATOR SAY WAS THE REASON THE QDRO WAS SENT BACK TWICE? The QDRO has been sent back twice. In the mean time ex was terminated from job. WHEN WAS YOUR EX TERMINATED FROM HIS JOB? HAS HE REMOVED ALL OF THE FUNDS FROM HIS RETIREMENT ACCOUNT THAT I ASSUME WAS A 401(K)? IF IT WAS NOT A 401(K) WHAT WAS IT? The agreement to give half was awarded in the final decree. Would plan give him all of retirement because he was fired before the plan approved the QDRO? TIMING IS EVERYTHING. IF HE TERMINATED HIS EMPLOYMENT, WHETHER FIRED OR QUIT, AND NO QDRO HAD BEEN SUBMITTED TO THE PLAN ADMINISTRATOR, HE COULD TAKE EVERYTHING OUT OF HIS 401(K) WITHOUT NOTICE TO YOU AND WITHOUT YOUR CONSENT. IF YOUR ATTORNEY SENT A "NOTICE OF ADVERSE INTEREST/CLAIM" TO THE PLAN ADMINISTRATOR IMMEDIATELY AT THE TIME THE AGREEMENT WAS SIGNED OR THE JUDGMENT OF DIVORCE WAS ENTERED, THE PLAN ADMINISTRATOR WOULD LIKELY HOLD ONTO YOUR SHARE PENDING AGREEMENT OF THE PARTIES OR ORDER OR COURT. YOU CANNOT GET A USEFUL ANSWER TO YOUR QUESTIONS UNLESS YOU SET FORTH ALL THE FACTS. IT WOULD HELP IF YOU GAVE US NAME OF THE PLAN YOU ARE DEALING WITH SINCE THEIR ARE 175,000 DIFFERENT PENSION AND RETIREMENT PLANS IN THE USA AND YOU ARE ASKING US TO GUESS.

Let me further clarify my thoughts. I am thinking when ERISA requires a married and retiring Participant to elect a QJSA, that election is already "net" of the cost of the QJSA, and that election survives the divorce (unlike FERS and CSRS and Military elections). See Vanderkam v. Vanderkam, 776 F.3d 883, 892 (D.C. Cir. 2015), and the excellent District Court opinion at Vanderkam v. PBGC, 943 F.Supp.2d 130 (USDC - DC Cir. 2014), and a well written case Setzer v. Michelin Retirement Plan - C.A. No. 3:13-cv-00192-MGL - https://scholar.google.com/scholar_case?case=4368934987489954107&q=Setzer+v.+Michelin+Retirement+Plan&hl=en&scisbd=2&as_sdt=3,110,125 If the Court can reallocate the cost to the Alternate Payee, that will reduce the Alternate Payee's share of the retirement annuity, and in my humble opinion violates the intention of Congress that the Alternate receive a QJSA with the costs already deducted. How then can a local state judge reduce the Alternate Payee's share without violating the intention of ERISA? BTW, I cannot find any statutory law in my home state, Maryland, that gives the court the authority to allocate the cost in a way different from "off the top". And I am not aware of any Plan that addresses the issue other that to "just say no", we don't allocate. Nor I cannot find anything in ERISA or REA that mentions the cost. The SCOTUS decisions in Carmona and Engelhoff and New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. and Kennedy, among others, are pretty firm when it comes to preemption. The rules of statutory interpretation are that the legislative body says what it means and means what it says, and if it don't say something it intended not to say it, and it is presumed to act with knowledge of how its enactments will impact all other existing laws. In my neck of the woods, the DC Metro Area, we have hundreds of thousands of Federal Employees and Retirees and everybody knows that OPM will allocate the cost of the survivor annuity in any manner directed by the parties. And everybody knows that even though DFAS will not allocate the cost of SBP benefits, there if an Excel program created by Marshal Willick that can be used to to so via the back door. See attached. I have been in touch with Brett Turner of "Equitable Distribution of Property" by Thomson Reuters and he referred me to Section 6:46 of this treatise and he doesn't know where the authority comes from to allocate the cost other than, perhaps, the assumption that there is no preemption in this area. It seems to me that from a dollars and cents point of view it's a big enough issue that it should have been addressed....but it wasn't. Check with your Plan Administrator clients and see is any of them have a written protocol for handling a situation where the parties (or the trial judge) wants to allocate the cost of the QJSA to the Alternate Payee? And what is their legal rationale for that protocol. Sorry, but I love being the provocateur. David Press-Release-for-SBP-Premium-Calculator (1).pdf Universal-SBP-Premium-Shifting-Calculator-in-Excel.xls

In an ERISA Qualified Plan the Participant retired during the marriage of the parties and elected a 50% QJSA for his then current wife as he was required to do by law by Federal law. ERISA § 205(a)-(d), 29 U.S.C. § 1055(a)-(d) Now, 6 years later, cometh the divorce, and the Participant wants his now ex-wife, the Alternate Payee, to pay the cost of the QJSA election, that is, the actuarially deduction from his retirement annuity to fund the survivor annuity and achieve actuarial equivalence pursuant to ERISA §§ 205(d)(1)(B), (d)(2)(A)(ii), 29 U.S.C. §§ 1055(d)(1)(B), (d)(2)(A)(ii) and ERISA § 204(c)(3), 29 U.S.C. § 1054(c)(3). Problem 1 - the Plan Administrators, like most Plan Administrators I have dealt with, have refused to allocate the cost to the ex-wife and to deduct that cost from the ex-wife's share of the retirement annuity. Problem 2 - I cannot find any authority to confirm that ERISA permits the parties to agree, on the courts to compel, the cost of the survivor annuity to be paid by an Alternate Payee. The sections of ERISA require the Participant to elect a QJSA, but is silent about the "cost". Any ideas? Thanks.

As for the Federal view, see this DOL pamphlet attached, and you can find it at - https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/publications/qdros.pdf - Go to Question 1.2, 6th paragraph on page 5 where it says, "There is no requirement that both parties to a marital proceeding sign or otherwise endorse or approve an order." [ERISA §§ 206(d)(3)(B)(ii), 514(a), 514(b)(7); IRC § 414(p)(1)(B)] [The same language is found in Gary Shulman's treatice, "Qualified Domestic Relations Handbook", 4th. Ed., Section 18.01.] Many courts are appointing Special Masters to sign for and on behalf of the recalcitrant party. See for example: In re: Matter of Jioie v. Hosier, Ariz: Court of Appeals, 1st Div., Dept. E 2012, 1 CA-CV 11-0333 A. - http://scholar.google.com/scholar_case?case=15008890219389579531&hl=en&lr=lang_en&as_sdt=2,9&as_vis=1&oi=scholaralrt the court appointed a special master to prepare the QDRO and ordered the parties to share the cost. In re the Marriage of Phipps and Phipps, No. A163407, Court of Appeals of California, First District, Division Three, Filed May 30, 2024 - https://scholar.google.com/scholar_case?case=9594494900687241931&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:14880692104701005079:AFWwaeYSZAD9szjlrGc6DdHWflSn&html=&pos=1&folt=kw the Court ordered the husband to sign the QDRO and when he refused the Court directed the Clerk of the Court to sign an “elisor”. In California, an elisor is a person appointed by a court to perform tasks such as signing or executing documents on behalf of a party who refuses to do so. The court's power to appoint an elisor is outlined in California Code of Civil Procedure Section 128(a)(4). This power permits the Court “(4) To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein.” The use of an “elisor” in common in California - https://scholar.google.com/scholar?hl=en&as_sdt=20000006&q=elisor+"qdrp&btnG= In Military cases see 10 U.S.C. 1408 - Payment of retired or retainer pay in compliance with court orders - at Section (a)(2) defining "court order" does not require that such an Order be signed or approved by the parties. Most states, like Maryland, view a QDRO as an enforcement tool, like a garnishment or an attachment. See Rohrbeck v. Rohrbeck, 318 Md. 28, 566 A.2d 767 (1989), where the court said: ""As is evident from this discussion, the QDRO has become an order of high significance in State domestic relations practice. An attempt to cause pension plan benefits payable to one party to be paid to an alternate payee, whether through an attachment in aid of a support obligation or pursuant to the Marital Property Disposition Act (Md. Fam.Law Code Ann. § 8-205) can succeed only through the mechanism of a QDRO. See Fox Valley & Vicinity Const. Workers v. Brown, 879 F.2d 249, 252 (7th Cir.1989): "[E]RISA preempts any attempt to alienate or assign benefits by a domestic relations order if that order is not a QDRO." See also Cummings Techmeier v. Briggs & Stratton, 797 F.2d 383 (7th Cir.1986). Absent such a qualified order, not only will the pension plan administrator refuse to implement the court's decision, but, given the anti-alienation provisions extant in both the labor and tax codes, coupled with the preemption provision of ERISA § 514 (29 U.S.C. § 1144), there is at least a reasonable argument that a non-qualified order may be invalid even as between the parties." * * * * ". . . .we therefore expressly recognize the ability of a party otherwise entitled to a QDRO to obtain one as an aid to enforcing a previously entered judgment." Nobody would expect this type of court order to require the approval of the parties, especially the party whose assets are being taken. The practice of having a Court Order approved by the attorneys is a matter of courtesy. It would be inappropriate to submit a court order without giving the opposing counsel the right to review and approve it, vel non. Somehow this morphed over to the litigants themselves. But there is a reason. Most attorneys know so little about QDROs that they don't want to put themselves in malpractice jeopardy by approving a QDRO. So they have passed it over to the client instead. If a party does not want to sign, file a Motion for Entry of QDRO without his/her cooperation. I have never seen a court refuse such a request. In some cases they court wants to hear the testimony of an expert. DoL QDRO Memo.pdf

You first need to know whether or nor the Plan is governed by the Federal law, ERISA, and if he retired during the marriage or after the divorce. So you first job is to tell us the exact name of the Plan, or you can look it up yourself at https://www.efast.dol.gov/5500Search/ where all ERISA qualified plans must file a form 5500 every year. You can search by plan name or by the plan sponsor. The Plan might be governed by another Federal law (such as FERS or CSRS or the Military or the Foreign Service) or by a State, County, City or Municipal plan, and in some plans the election of a survivor annuity for a former spouse does not survive the divorce and must be crated or reinstated by a QDRO style document. QDRO stands for Qualified Domestic Relations Order and only apply to ERISA qualified plans. Other plans use other name such as Eligible Domestic Relations Order, Domestic Relations Order, Retirement Benefit Order, etc. The failure of the lawyer who represented the former spouse in this case might be sued for malpractice and incompetence for not following up and making sure the QDRO was entered by the Court and approved by the Plan Administrator. The good news you are looking for is that it is in fact an ERISA plan that would be subject to the Pension Protection Act of 2006 that permits the entry of a QDRO post mortem. The bad news this that if the Participant remarried and then retired his new spouse would be entitled to the survivor annuity and not the former spouse. See for example, Hopkins v. AT&T Global Information Solutions, 105 F.3d 153 (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 1999 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 and a number of other cases. If you want to send me a copy of the Marital Settlement Agreement and the Judgment of Divorce and the exact name of the Plan I might be able to figure out you situation find a lawyer in your state that would be able to help. My email is marylandmediator@gmail.com.

I didn't want to confuse the issue, but this is FERS retirement annuity. At OPM "self only annuity" means the full and unreduced annuity. "Gross annuity" is the "self only annuity" less the cost of the survivor annuity (10%/month of the "self-only annuity). "Net annuity" is defined at 5 CFR 838.103 as - "Net annuity means the amount of monthly annuity payable to a retiree or phased retiree after deducting from the gross annuity any amounts that are— (1) Owed by the retiree to the United States; (2) Deducted for health benefits premiums under 5 U.S.C.8906 and 5 CFR 891.401 and 891.402; (3) Deducted for life insurance premiums under 5 U.S.C. 8714a(d); (4) Deducted for Medicare premiums; (5) Properly withheld for Federal income tax purposes, if the amounts withheld are not greater than they would be if the retiree claimed all dependents he or she was entitled to claim; (6) Properly withheld for State income tax purposes, if the amounts withheld are not greater than they would be if the retiree claimed all dependents he or she was entitled to claim; or (7) Already payable to another person based on a court order acceptable for processing or a child abuse judgment enforcement order. Unless the court order expressly provides otherwise, net annuity also includes any lump-sum payments made to the retiree under 5 U.S.C. 8343a or 8420a." I am sorry if it took you off track. Thanks for the cites. I did find one case, Chiarello v. Internal Revenue Service, Case No. 4-06cv-163-BE, United States District Court, N.D. Texas, Ft. Worth Division (2006) - citing 26 CFR § 1.61-11 - https://www.law.cornell.edu/cfr/text/26/1.61-11 David

>There is no question that, except for defined benefit plan payments made to a spouse or former spouse for child support, the amount paid to a spouse or former spouse via a QDRO (as alimony or as an allocation of property) is taxable income to the alternate payee. But I cannot find the section of the IRC or the Regs that say that. It is set forth in IRS Publ. 504 and 575, but the source is not stated. Whoops. I just found https://www.law.cornell.edu/cfr/text/26/1.61-11#:~:text=CFR-,§ 1.61-11 Pensions.,income unless excluded by law. Any other citations? >For the first time is 38 years of preparing QDROs I have an attorney for the Participant insisting that the allocation of a defined benefit plan be computed with respect to the "net" (not the gross) annuity payments paid to the participant, that is, net of the participants state and federal tax withholding, Social Security and Medicare taxes, health insurance and life insurance premiums, and the cost of the survivor annuity. I pointed out that we NEVER use "net" since the amount is subject to manipulation by the participant and because is forces the alternate payee to pay part of the participant's taxes (what the hell?), but I have been looking for a learned treatise, or law review article, or even caselaw, that sets forth a better and more authoritative argument. Anybody? Thanks, David

Say what?

Follow up - from Justice Kagen's dissent in Loper Bright Enterprises v. Raimonda. "In particular, the majority’s decision today will cause a massive shock to the legal system, “cast[ing] doubt on many settled constructions” of statutes and threatening the interests of many parties who have relied on them for years. 588 U. S., at 587 (opinion of the Court). Adherence to precedent is “a foundation stone of the rule of law.” Michigan v. Bay Mills Indian Community, 572 U. S. 782, 798 (2014). Stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles.” Payne, 501 U. S., at 827. It enables people to order their lives in reliance on judicial decisions. And it “contributes to the actual and perceived integrity of the judicial process,” by ensuring that those decisions are founded in the law, and not in the “personal preferences” of judges. Id., at 828; Dobbs, 597 U. S., at 388 (dissenting opinion)."

The following cases hold that if a divorce Participant has remarried and retired before a QDRO has been perfected, Federal law holds that the Participant's new spouse vests in the right to receive the survivor annuity and the former spouse (prospective Alternate Payee) irrevocably(?) loses the right to receive that survivor annuity. 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 Rivers v. Central and South West Corporation, 186 F.3d 681 (USCA 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 But I come across statements from time to time that if the new spouse consents to waiving her right to survivor annuity benefits (how that happens is never addressed), then a QDRO can be effective to restore survivor annuity benefit to the former spouse. I also have contemplated what would happen is the new spouse predeceased the Participant, or if the Participant and the new spouse divorced, whether not a new QDRO could restore QJSA rights to the former spouse? Any ideas? Case law? Statutory references? Thanks, David

You have said that you are dealing with a QDRO so that means the Plan is governed by the Employee Retirement Income Security Act of 1974. And you used the word "pension" so that suggests that you are dealing with a defined benefit plan. The Pension Protection Act of 2006 permits the entry of a post mortem (after death) QDRO. See https://www.law.cornell.edu/cfr/text/29/2530.206 Tell you lawyer to check out these cases: Thomas v. Sutherland at https://scholar.google.com/scholar_case?case=1601430218420084129&q=Thomas+v.+Sutherland+&hl=en&as_sdt=20006 where the U.S. District Court in Utah held: "Although there is no case law precisely on point, the supporting material suggests that this is the appropriate result. The Code of Federal Regulations provides that a DRO does not fail to be treated as a QDRO solely because of the time at which it is issued. 29 C.F.R. 2530.206(c)(1). This includes orders issued after the participant's death, and occasions where a divorced spouse no longer meets the technical definition of a "surviving spouse" under the terms of the plan. 29 C.F.R. 2530.206(c)(1)(ex. 1 & 2). In addition, the Eighth Circuit has found that a domestic relations order can be qualified posthumously if notice is given and the order is filed during the eighteen-month period permitted under ERISA to secure a QDRO. Hogan v. Raytheon, 302 F.3d 854, 857 (8th Cir. 2002). Although different than the case at hand, the trend has been to enforce the terms of an otherwise valid QDRO as it was intended to be enforced, so long as notice was given and the order was filed during the period permitted under ERISA." See also, Yale-New Haven Hospital v. Nicholls, 788 F.3d 79, 85 (2d Cir. 2015) where the Court held that two nunc pro tunc Orders issued after the death of the Participant were valid QDROs. Said the Court: “Domestic relations orders entered after the death of the plan participant can be QDROs. In the Pension Protection Act of 2006, Congress made clear that a QDRO will not fail solely because of the time at which it is issued, see Pub. L. No. 109-280, § 1001, 120 Stat. 780 (2006), although several of our sister circuits had already reached that conclusion, see, e.g., Files v. Exxon Mobil Pension Plan, 428 F.3d 478, 490-91 (3d Cir. 2005) (finding that a posthumous order constituted a QDRO), cert. denied, 547 U.S. 1160 (2006); Patton v. Denver Post Corp., 326 F.3d 1148, 1153-54 (10th Cir. 2003) (same); Hogan v. Raytheon Co., 302 F.3d 854, 857 (8th Cir. 2002) (same); Trs. of Dirs. Guild of Am.-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 421-23 (9th Cir. 2000) (same).” ....and Miletello v. R M R Mechanical Inc., 921 F.3d 493 (USCA 5th Cir. 2019) I can provide his with other case citations and theories for asking for a post mortem QDRO if the Plan is not under ERISA. You attorney should have no problem obtaining a QDRO for you share of your late spouse's benefit, UNLESS, there was a delay that would cause you to lose benefits, for example, if your ex remarried and then retired his new spouse would be entitled to the survivor annuity benefits and you would not. Good luck, David

https://www.bloomberglaw.com/external/document/X34LHKL4000000/retirement-benefits-professional-perspective-spousal-consent-req https://www.irs.gov/retirement-plans/plan-sponsor/fixing-common-plan-mistakes-failure-to-obtain-spousal-consent https://smartasset.com/retirement/spouse-401k-withdrawal-proposal

Nobody on this blog can give you any meaningful assistance with respect to the pension and 401(k) plan without reading every word of the Judgment of Absolute Divorce and the Marital Settlement Agreement if any. We would also need to know the exact names of the plans involved. There are approximately 175,000 pension and retirement plans in the US and they do not all work the same way. Additional information would include you age and your former husbands age, whether or not he retired and when, whether either of you remarried and when, and a host of other details. It is highly unlikely that you would be able to prepare a QDRO that complies with Marland law and with Federal laws governing you specific plan. There is no statute of limitations in Maryland for the preparation of QDROs, but there other problems that will cause you to lose benefits that you were entitled to receive. See my attached Memo. As far as alimony is concerned the 12 year statute of limitation begins to run with respect to each payment when it became due. So you could not sue for any payment that became due and payable prior to June, 2012. On the other hand, the statute of limitations is what we call an "affirmative defense". It you sue your ex for the full amount due, and if he defaults (doesn't answer your Complaint) or if he answers the Complaint and doesn't plead the statute of limitations as a defense, then maybe you can collect. $92,000 is a lot of money. Add prejudgment interest at the 10% judgment rate would more than double the amount due. See the attached Memo If you want to talk call me at 301-947-0500. DSG CONSEQUENCES OF DELAY 04-15-24.pdf Pre - Judgment Interest - CS and more.pdf

Don't make payments to anybody. Do so at your peril. You have actual notice of a forthcoming QDRO. One option is to file an interpleader and deposit the money into the Registry of the Court.

See my comments in bold type. My divorce settlement was agreed to in April of 2023. What does that mean? Did you prepare a Marital Settlement Agreement or read the terms of the settlement into the record in open court? My attorney had the QDRO prepared and sent off to the QDRO Provider (VOYA). YOYA would be the Third Party Administrator on on behalf of the Plan Sponsor and the Plan Administrator. Was this a defined benefit plan (a pension) or a defined contribution plan (like a 401(k)? It has been sitting with VOYA for about 10 months now because, come to find out, my employer and VOYA have not agreed to terms on setting up the administration of the QDRO. (VOYA took over IRA's etc., last year). IRAs have nothing to do with QDROs. Two different Federal laws apply. I hope you are not talking about an IRA. In the meantime, because my ex-husband's attorney won't file the final divorce decree, I continue to pay spousal support. In every jurisdiction where I have prepared QDROs the QDRO cannot be entered until the Judgment of Divorce has been entered or thereafter, so how is it that the QDRO in your case was prepared and sent to the TSA prior to the divorce? In what state is your case pending? What would happen if the QDRO was entered and the parties decided to reconcile and not get a divorce, or if one of the parties died and the cause of action abated and no Judgment of Divorce was never entered? I have talked to a representative from VOYA as well as my employer and they say a settlement between them is close. Close? It's been 10 months. Any ideas on what I can do? or do I just have to sit and wait, meanwhile continuing with the spousal support? We tried to push my ex-husband to have his attorney file the final divorce decree before we get the QDRO finalized, but they won't go for it. There are facts you are not correctly reporting. At the very least the QDRO should have been sent to the Plan Administrator identified on the Form 5500 filed by the Plan Sponsor and let him deal with it. If anybody suffers a financial loss it's the Plan Sponsor who is the fiduciary, not Voya in it's role as the TPA. The Plan Sponsor is responsible for the actions of Voya.

If you want help, you're going to have to provide a lot more information than you have provided. There are about 175, 000 pension and retirement plans in the United States and they do not all have the same procedures. I'm not sure what OC means in your post but I assume it's "other counsel". It is clear that your lawyer doesn't have a clue. If you want to call me at 301-947-0500 I can very likely tell you what you need to do and send your attorney a template for a motion asking the court to enter the qdro without the approval of your former spouse and or his or her attorney. You are going to need to have in hand the exact name of the 401K plan and the Judgment of Absolute Divorce that the court signed giving you an interest in that plan. David Goldberg

You are too foolish or too cheap to hire a lawyer to help you. Instead you have posted 23 questions on this blog without any idea what you are talking about. So my expectation is that you will never recover a dime. There are lots of people on this blog who would like to help you. But you have worn out your welcome.

See my comments in all bold type. So most, if not all, plan administrators will ask a designated "Primary Beneficiary" (or anyone requesting a payout of a "benefit") to complete a "Benefit Claim Form". What is a "designated beneficiary? A spouse? A former spouse? A child? The format I am familiar with typically starts at the top by explaining the nature of the benefit including amounts and different options for payout(if applicable) from which the "beneficiary" may choose. What type of defined benefit plan? Is it under ERISA? Then what follows are a series of "declarations"; pre-printed on the "claim form" that the "beneficiary" confirms by checking a box next to each individual phrase/declaration. Finally, at the bottom of the claim form there is a signature and date line where the "beneficiary" (as I'm referring to them) is to sign and date the claim form. In print either directly above or below the signature line is language to the effect of : "By signing this form you confirm, under penalties of perjury the accuracy/correctness of your responses to the statements above". Now, say the person filling out the form "affirms" an obviously false statement, for example that they were still married to the deceased plan participant at the time of their death, when, in fact, they are divorced from the deceased. Are you setting forth a hypothetical or is that actually what happened your case. . Upon learning of the falsehood, which, potentionally, could affect a payout (or might not ala' Egelhof v. Egelhof) could the Plan Administrator deny/revoke/attempt to recover any "payout" or , in this particular instance, might the administrator, determine based on established caselaw such as Egelhof v. Egelhof for example, and say "No harm no foul" or would they be obligated to perform further due diligence and/or look to some outside legal authority, such as the courts, to make any final determination ? Were the Participant and the former spouse married at the time the Participant retired and elected a QJSA as required by law (unless waived by the former spouse). That election survived the divorce and the alleged misstatement is meaningless. If the Participant agreed, or the Court in the Judgment of Divorce ordered, that the former spouse be the Alternate Payee of the Participant survivor annuity benefits, and a QDRO was issued by the Court and approved by the Plan, then the alleged misstatement is meaningless. If the Participant agreed, or the Court in the Judgment of Divorce ordered, that the former spouse be the Alternate Payee of the Participant survivor annuity benefits, and no QDRO was ever issued, then Pension Protection Act of 2006 would permit a posthumous QDRO, and the alleged misstatement is meaningless. If the QDRO or the JAD or the Plan provides that upon the death of the Participant the Alternate Payee is to be treated as the beneficiary and as the surviving spouse of the Participant, then the alleged misstatement is meaningless. Egelhoff may or may not apply. The language of the Plan Documents may or may not apply. DSG

I was hoping somebody would say at what point in time the election of a life annuity would be made. I assume that you are talking about the time the Participant terminates employment and is eligible for a distribution. And I assume that at the time of the election the parties are happily married. Yes. That matters to me. A question I have asked on this blog before transports you to my world, where the parties are happily married at the time of the annuity election, but divorce years later and the now former spouse wants her share of the Participant's 401(k) as an immediate lump sum distribution. Will the QDRO supersede the annuity election? I have not been able to find anyone who can answer that question. I am not ever sure what type of annuity payouts are available. If the Participant opts for a single life annuity does the former spouse have to consent. Let me say that differently, to what sort of annuity option does the former spouse NOT have to consent. Can the 401(k) Participant rollover his 401(k) balance to an annuity that does not fall within the umbrella of the 401(k). This is destined to be a major issue in family law cases. I see in coming because I have been involved in the preparation of DROs since 1986 on an almost fill time basis.

In James v. James (Unreported), Nos. 0609, 2624, September Term, 2018 (2019) that you can find at - https://scholar.google.com/scholar_case?case=1652503325851670403&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:14880692104701005079:AAGBfm2qi1_JaXLJvydb4f3quYTnTlLkbA the CSA cited Potts v. Potts, 142 Md. App. 448, 790 A.2d 703 (2002) as follows: "When a QDRO is used subsequent to a judgment to allocate property under Md. Fam. Law Code Ann. § 8-205, it is considered collateral to the judgment. Id. at 460-61. "In light of the current practice of often presenting QDROs months, sometimes even years, after a marriage has ended . . . if one party drags his or her feet, the other party will be unable to appeal other issues contained in the judgment for absolute divorce." Potts, 142 Md. App. at 461. We also stated, "[w]e have found no case, statute, or rule in Maryland or elsewhere that requires a QDRO to be filed within a specific time frame after a judgment of absolute divorce has been entered." Id. at 461." (Emphasis supplied.) And read Rohrbeck v. Rohrbeck, 318 Md. 28, 566 A.2d 767 (1989), where the Court of Appeals recognized the use of appropriate pension orders as an enforcement tool (not unlike an attachment or a garnishment.) The Court held that, ". . . we therefore expressly recognize the ability of a party otherwise entitled to a QDRO to obtain one as an aid to enforcing a previously entered judgment." Id. at 43, 566 A.2d 767. So there is no statute of limitation with respect to the filing of QDRO to collect pension or retirement benefits, however there are many problems that can occur during the delay. See attached Memo. And if you are planning on using a QDRO to collect alimony or child support arrears you will have a statute of limitations with respect to each payment when it becomes due and payable. DSG CONSEQUENCES OF DELAY 04-15-24.pdf

See my comments in all bold type. I have a Client who was divorced by Judgement of Absolute Divorce. In the JAD the wife (Plaintiff) was to receive Rehabilitative Alimony for 30 months. The Defendant never provided those payments to the Plaintiff. Did she remarry within that 30 months - an event that would have terminated alimony under Maryland law? Do you have a judgment for the 30 alimony payments - a prerequisite to any collection efforts? In seeking a judgment, did you ask for pre- and post-judgment interest at the 10% judgment rate in Maryland? The amount due for alimony would have like tripled in 20 years. See the "Rule of 72s". What sort of Plan are you trying to serve with a QDRO for alimony arrears? A defined benefit plan or a defined contribution plan. Does the statute of limitation apply to alimony, normally viewed as a "duty" and not a "debt" in Maryland? Does the doctrine of laches apply to preclude your client from collecting alimony arrears? Now we are 20 years later and the Plaintiff is working on a Qualified Domestic Relations Order to receive the Pension benefits awarded to her in the JAD. Why wasn't the QDRO submitted to the trial court 20 years ago at the time of the divorce hearing? Tell your client to immediately file suit against the attorney who represented her at the time of divorce for malpractice; and report the attorney to the Grievance Commission for violation of the Rules of Professional Responsibility - Competence. Now she is also trying to file a petition to receive the Alimony payments never received, but I notified her that the statue of limitation has passed. However, she can use a QDRO to receive the Alimony payments that she is entitled to receive, as the state that she resides has no statute of limitation on QDROs. In Maryland the statute of limitation on the collection of alimony is 12 years from the date each payments becomes due. So at 14-/2 years (12 years plus 30 months) after the Order to pay alimony the right to collect it ended. The fact that you are trying to collect it via a QDRO rather that a wage garnishment or an attachment of his bank account is not likely to make a difference. Nice try though. Now to get to my question: I am drafting a QDRO for Alimony in a 401k Account, should I include only the exact dollar amounts awarded to her or should the QDRO apply the interest of the investment accounts on the wife's Alimony share, as any account would? Do you know anything about the laws in Maryland. I know QDROs have no statue of limitations in MD, as held in Potts v. Potts. You are misreading the intent of Potts and ignoring Rohrbeck where it is made clear that a QDRO is simply a method of enforcing another court order. The QDRO does not create the underlying obligation or define how the S/L will apply to the collection of that underlying obligation. My main question is how how should the interest be applied if the Alimony will be garnished under a QDRO for a Deferred Compensation Plan. You are full of surprises. Most deferred compensation plans (other than those that are under IRC 457) are not "qualified" under ERISA and cannot enforced by a QDRO. Another issue is that most are non-funded. Should the Wife share of Alimony be credit with the investment experiences under the plan pursuant to the rules of the Plan because the Alternate Payee will be treated as a Participant with her out retirement account created? No. The Alternate Payee will not be treated as a Participant. She will be treated as an Alternate Payee. And if you don't have a court order awarding gains, losses and investment experience, or you don't have a court order incorporating an Agreement awarding gains, losses and investment experience, you are got going to get such an adjustment assuming that the Plan can go back 20 years and make such a computation. If the Plan uses a TPA, the date that the most recent TPA took over is as far back at computations of gains, losses and investment experience can go. But see my comments above. about about prejudgment interest .

What? You question is incomprehensible. "I am a Law Student, Why does that matter? and I am working a case A case pending in a coury? Who are the parties. What are the issues? assisting an elderly women Why does her age matter? who was due Alimony from her ex-husband as part of a Judgement of Absolute Divorce. Do you have a judgment for unpaid alimony? I am not NOT?? working with the woman to obtain Alimony through a QDRO for the ex-husband's 401k benefits. Are you looking to use a QDRO to garnish a retirement plan for alimony arrears? This Case is in MD and I am aware that unless a party waives their rights in a Judgement to receive the accrued interest in a Defined Contribution Plan, both parties will share in the interest generated over the years. What are you talking about? My question is does relate to Alimony that is being Is being awarded? Was awarded? awarded pursuant to a QDRO; should I write up WRITE UP? What do you plan to write up? that she is entitled to interest What "interest"? accured over the years on her share? Her share of what? If you cannot articulate the facts better than this you should consider another career.

See attached. Modify as necessary to meet the facts of your case. The DoL booklet attached at Q. 1-2 and Q. 1-13 says that: "It is also not necessary that the retirement plan be brought into state court or made a party to a domestic relations proceeding for an order issued in that proceeding to be a “domestic relations order” or a “qualified domestic relations order.” Indeed, because state law is generally preempted to the extent that it relates to retirement plans, the Department takes the position that retirement plans cannot be joined as a party in a domestic relations proceeding pursuant to state law." But that is not true. A fiduciary owes an obligation to both the Participant and to the Alternate Payee as a beneficiary under 29 USC 1002(8). 29 USC 1132(c) provides for penalties imposed upon a Plan Administrator for failure to provide information to a Participant or a Beneficiary. Under 29 USC 1132(a)(1)(B) a Participant or an Alternate Payee (who is classified as a beneficiary), can sue "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;" Under 29 USC 1132(e)(1) it states that: "(e)Jurisdiction (1)Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, fiduciary, or any person referred to in section 1021(f)(1) of this title. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under paragraphs (1)(B) and (7) of subsection (a) of this section." (Emphasis supplied) A 2008 case from the US Court of Appeals for the 1st Circuit, Geiger v. Foley Hoag LLP Retirement Plan, held as follows: "Geiger [the party complaining about the QDRO] argues that state courts do not have jurisdiction to determine whether domestic relations orders are QDROs . . .Geiger cites no cases in support of his position. Instead he relies on what he calls the "unambiguous language" of ERISA, specifically, 29 U.S.C. §1132(e)(1), which provides that federal courts "have exclusive jurisdiction over civil actions under this subchapter brought by a . . . participant," with the exception that state courts have concurrent jurisdiction over actions brought to recover benefits or enforce or clarify rights under a plan. 29 U.S.C. §1132(a)(1)(B). In Geiger's view, this is the beginning and the end of the inquiry. His view, however, has been rejected by several courts. See e.g., Scales v. Gen. Motors Corp., 275 F. Supp. 2d 871, 876-77 (E.D. Mich. 2003) ("[S]tate courts have concurrent jurisdiction regarding the interpretation of QDROs . . . and are fully competent to adjudicate whether their own orders are QDROs."); In re Marriage of Oddino, 939 P.2d 1266, 1272 (Cal. 1997) (action to qualify domestic relations order is an action to "obtain or clarify benefits claimed under the terms of a plan," and thus within state courts' jurisdiction); Robson v. Elec. Contractors Ass'n Local 134, 727 N.E.2d 692, 697 (Ill. App. Ct. 1999) ("[S]tate and federal courts have concurrent subject matter jurisdiction to construe the ERISA provisions relating to a QDRO . . . ."); Eller v. Bolton, 895 A.2d 382, 393 n.6 (Md. App. 2006) ("State and federal courts have concurrent jurisdiction to review a plan's qualification of a state domestic relations order . . . .")." "Geiger acknowledges the one-sidedness of the caselaw, but argues that the rationale set forth by those decisions both violates ERISA's plain language and is "logically senseless." We do not agree. In our view, it is significant that Congress has expressly exempted QDROs from ERISA's general preemption of state law. 29 U.S.C. 1144(b)(7). We are further persuaded that, "separate litigation of the QDRO issue in federal court presents the potential for an expensive and time-consuming course of parallel litigation . . . in the two court systems." Oddino, 929 P.2d at 1274-75. And finally, we share the view of the Oddino court that: Congress, having given state courts the power to issue orders determining and dividing marital rights in retirement plans, would require a separate federal court proceeding to decide whether the order is a QDRO. This would cause undue hardship, expense and delay to the affected party, and impose an unnecessary workload on already overburdened federal courts." Similar decisions came from the 9th Circuit -Mack v. Kuckenmeister, 619 F.3d 1010, 1017 (9th Cir. 2010) (finding state court may "determine whether a DRO is a QDRO"); Langston v. Wilson McShane Corp., 776 N.W.2d 684, 693 (Minn. 2009), Jones v. Am. Airlines, Inc., 57 F. Supp. 2d 1224, 1232 (D. Wyo. 1999), In re Marriage of Levingston, 12 Cal.App.4th 1303, 1304 (Cal. Ct. App. 1993), Dalton v. Dalton, 551 S.W.3d 126, 142 (Tex. 2018) ("[U]nder ERISA, the proposed order does not qualify as a QDRO."). See also Lundstrom v. Young, Case No. 18-cv-2856-GPC-MSB, United States District Court, S.D. California (2004) that you can find at - https://scholar.google.com/scholar_case?case=13599097813167549363&hl=en&lr=lang_en&as_sdt=6,33&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:12484640753426065479:AFWwaea-0cgdJTbhK1HjGe3RYMFg&html=&pos=0&folt=kw And see Turner, Equitable Distribution of Property, §6:19 n.11. In 2006 our Court of Special Appeals in Eller v. Bolton, 168 Md. App. 96, 895 A.2d 382 (2006), at footnote 6 said: "State and federal courts have concurrent jurisdiction to review a plan's qualification of a state domestic relations order under ERISA and payments made pursuant to such an order. See 29 U.S.C. §1132(e) (conferring concurrent jurisdiction upon federal district and appellate courts, along with state courts of competent jurisdiction, to decide a participant's or beneficiary's right "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan")." See the recent case of Schwartz v. Bogen, Civil File No. 17-3329 (MJD/TNL), United States District Court, D. Minnesota (November 28, 2017) - https://scholar.google.com/scholar_case?case=7440152571720477172&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt: "The domestic relations exception . . . divests the federal courts of jurisdiction over any action for which the subject is a divorce, allowance of alimony, or child support, including the distribution of marital property." Wallace v. Wallace, 736 F.3d 764, 766 (8th Cir. 2013) (citations omitted). “[A] federal suit is inextricably intertwined with a state domestic proceeding, thereby depriving the federal court of subject matter jurisdiction, where the requested federal remedy overlaps the remedy at issue in the state proceeding. This occurs where the federal suit involves a remedy which is essentially domestic— where, in addressing the same conduct involved in a state domestic proceeding, the effect of a remedy in the federal suit is to modify, nullify, or predetermine the domestic ruling of the state proceeding. “Id. at 767 (citation omitted). “Subject matter jurisdiction exists in this case based on federal question jurisdiction because this lawsuit is based on ERISA, a federal statute. This is not a diversity case; therefore, the domestic relations exception does not apply. See, e.g., United States v. Crawford, 115 F.3d 1397, 1401-02 (8th Cir. 1997) (holding that the domestic relations "exception is irrelevant to federal prosecutions under the CSRA because the district courts' jurisdiction in such cases does not rest upon diversity, but rather is based upon 18 U.S.C. § 3231 ("The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.")); Rosenbrahn v. Daugaard, 61 F. Supp. 3d 862, 867 (D.S.D. 2015) ("But the domestic relations exception only applies to this court's diversity jurisdiction, not its federal question jurisdiction."), aff'd, 799 F.3d 918 (8th Cir. 2015); Grazzini-Rucki v. Knutson, No. 13-CV-2477 (SRN/JSM), 2014 WL 2462855, at (D. Minn. May 29, 2014) ("The Court, however, concludes that the domestic relations exception does not apply because it is a limitation on diversity jurisdiction, and there is no diversity here.") aff'd (8th Cir. Mar. 31, 2015).” Notice of Adverse Claim- Interest Cover Letter 05-25-2024.pdf Notice of Adverse Claim-Interest - 05-25-24.wpd.pdf ++++QDROs Booklet from DOL.pdf