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You may be under the impression that your legal option must come down to the correct opinion, and that you may be sued for malpractice is you are incorrect. In my mediation cases I always make it a point to tell the client's that Mary's lawyer may have one opinion of the outcome of a particular dispute, and that John's lawyer may have a second and different option, and I may have yet a third and different opinion, and that at the end of the day the only opinion that counts is the opinion of the judge knows nothing about the area of law involved, and who hears the case after an expensive trial. I can find case law on every side of every issue. I can find you inconsistent statutes and regulations. The best I can do is say that if Mary is right then the outcome will be favorable to her, and that if John is right the outcome will be favorable to him, and that my opinion as a mediator doesn't count, and that Mary and John may just have to wait and see what the judge decides at the end of an expensive trial. Now the parties have to do a cost benefit analysis and decide if a compromise settlement might be a better option. BINGO. The old saying is the opinions are like a*******s, everybody has one. You opinions better be filled with lots of "but"s and "however"s and "on the other hand"s, and plenty of disclaimers, your know: "This opinion is not intended to diagnose, treat, cure, or prevent any uncertain issue." And, of course, don't offer an opinion about anything unless you are an expert and know your stuff.

Consult a competent lawyer in your state who knows how these things work. Pay that lawyer for his/her services. You will never figure it out. You have never stated whether or not you are talking about a judgment for alimony arrears or an ongoing alimony obligation. You have never said if you are talking about a defined contribution plan, or a defined benefit plan (that is or is not in pay status). You have never asked a question that could be answered because you don't understand this most complicated area of the law. You have never identified which of the 175,000 pension and retirement plants in the US that you are dealing with. They don't all work the same way. You have never even said whether you are the participant or the alternate payee. Or are you the attorney for one of the parties. If that's the case make sure your malpractice insurance is up to date and think about another career when you are disbarred. Would you expect a neurosurgeon to perform brain surgery without looking at the patient's MRI? There is not a single answer that has ever been posted to any questions you have asked in your multiple post that will help you with whatever it you you are trying to do. You simply don't know what you don't know and you don't appreciate how a delay in resolving whatever is going on in your case can have enormous financial consequences. See the attached Memo. CONSEQUENCES OF DELAY 04-15-24.pdf

The answer is the same when I provided it to you before.

I suggest that before you waste your time responding the Jack Stevenson you take a look at his repetitive posts over the last few months. https://benefitslink.com/boards/profile/103326-jack-stevenson/content/

Who are you Eric? Are you the Participant or the Alternate Payee? In what state do you live?

SLAYER STATUTES - PREEMPTION? In Maryland, Section 11-112 of the Estates and Trusts Article (the “slayer statute”) provides, inter alia: "(c)(1) The survivorship interest of a disqualified person in property held with the decedent, including a form of co-ownership with incidents of survivorship, is severed at the time of the death of the decedent and the property passes as if the decedent and the disqualified person have no rights by survivorship." In Laborers’ Pension Fund v. Miscevic , 880 F.3d 927 (7th Cir. 2018) https://scholar.google.com/scholar_case?case=17460001952525060856&q=+Laborers%27+Pension+Fund+v.+Miscevic,+880+F.3d+927+(7th+Cir.+2018)&hl=en&lr=lang_en&as_sdt=20003&as_vis=1 the US Court of Appeals for the 7th Circuit issued an interesting opinion: "In January 2014, Anka Miscevic ("Anka") killed her husband, Zeljko Miscevic ("Zeljko"). At a state criminal proceeding, the court determined that Anka intended to kill Zeljko without legal justification. However, the court also determined that Anka was insane at the time of the killing and found her not guilty of first degree murder by reason of insanity. Following the criminal trial, the Laborers' Pension Fund (the "Fund") brought an interpleader action to determine the proper beneficiary of Zeljko's pension benefits. Anka claimed she was entitled to a Surviving Spouse Pension. The Estate of M.M. (Anka and Zeljko's child) argued that Anka was barred from recovering from the Fund by the Illinois slayer statute. After both parties filed motions seeking a judgment on the pleadings, the district court ruled in favor of the Estate of M.M. It determined that the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1461, did not preempt the Illinois slayer statute, and that the statute barred even those found not guilty by reason of insanity from recovering from the deceased." Query: Who is the winner in this case? The pension that need not pay survivor annuity benefits to the insane wife. Query: Who are the losers? The insane wife who will not have income for her support, (and will most likely be incapable of finding employment except as an elected official), whoever will wind up paying for her future support - maybe the State? Query: Redeeming feature of the decision? A good discussion of Federal preemption under ERISA. See also the 2020 case of Prudential Insurance Company of America v. McFadden, Civil Action No. 6:19-CV-051-CHB, (USDC, ED Ky 2020) discussing Federal preemption - https://scholar.google.com/scholar_case?case=17925077709511382629&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:17102308171145443235:AAGBfm2dXJvPo0nUQKlDLqIPUBXxyXMitw&html= In Hartford Life Insurance Company v. LeCou, et al., No. CV 19-17-BLG-SPW, 2021 WL 1312516 (D. Mont. Apr. 8, 2021), the US District Court for the District of Montana considered whether the Employee Retirement Income Security Act of 1974 (“ERISA”) preempts the Montana Code Annotated § 72-2-813, which states that an individual who “feloniously and intentionally kills the decedent forfeits all benefits under this chapter [Chapter 2 UPC—Intestacy, Wills, and Donative Transfers] with respect to the decedent’s estate.” Mont. Code Ann. § 72-2-813 (2). In this case, Cross-Claim Defendant Robert LeCou was convicted of deliberate homicide for killing his wife and two of her siblings. The sole issue for the court was whether the wife’s qualifying plan benefits pass to her estate under Montana’s slayer statute. It would not pass to her estate if the Montana statute were preempted by ERISA. The court noted that this issue has not been addressed by Montana’s Supreme Court or the 9th Circuit. It also noted, however, that the U.S. Supreme Court, in Egelhoff v. Egelhoff, 532 U.S. 141, 152 (2001), explained that the underlying principle of slayer statutes and their uniformity across jurisdictions, leaned toward a finding that ERISA does not preempt such laws. Further, the Seventh Circuit in Laborers’ Pension Fund v. Miscevic, 880 F.3d 927, 934 (7th Cir. 2018) determined that Congress did not intend to supplant slayer statutes with ERISA because such statutes are a well-established legal principle that long-predates ERISA. “Congress could not have intended ERISA to allow one spouse to recover benefits after intentionally killing the other spouse.” Id. (citing Conn. Gen. Life Ins. Co. v. Riner, 351 F. Supp. 2d 492, 497 (W.D. Va. 2005). Consistent with those decisions, the court found that ERISA does not preempt Montana Code Annotated § 72-2-813 (2). In Munger v. Intel Corporation, No. 3:22-cv-00263-HZ, United States District Court, D. Oregon, (October 5, 2023) - https://scholar.google.com/scholar_case?case=1046225108905078771&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:17102308171145443235:AFWwaea94w7XgMVkZLP-Q4RdIOLK&html=&pos=0&folt=kw discussed whether or not the California slayer law was preempted by ERISA and by the case of Egelhoff v. Egelhoff, 532 U.S. 141 (2001). But the real question is who has the burden of proof in your state? If the surviving spouse files suit the slayer statute would be an affirmative defense. The burden on the surviving spouse is show that the Participant is dead. A litigant is not required to disprove every possible explanation. The burden then shifts to the Plan to prove that he was a victim of a homicide by the surviving spouse that would then invoke the slayer statute. How will that happen under the facts of your case. The body was cremated. Any evidence of wrongdoing - bullet hole, knife wounds, crush injuries. Somebody needs to explain the situation to the coroner and urge him to make the call and issue a report. I have had friends that were taking blood thinners and fell and hit their heads on a piece of furniture and died of a cerebral hemorrhage. David

The QDRO should contain the date of the marriage and the date of divorce. The plan administrator will know the number of months during that period that the participant accrued creditable service toward retirement. The plan administrator will also know the date on which the participant started to accrue credible service toward retirement and the date of his retirement which may not be until some point in the future. The plan administrator will then make the computations.

N.B. The ability of a court to impose sanctions for contempt requires that the Participant be physically in the state. If the Participant quits his job and takes a taxable distribution of every dime in his 401(k) and moves to a cabin in the hills of Wyoming after first having deposited his 401(k) into a dummy corporation created by his brother in Vancouver, and never returns to the state where the divorce was litigated, I can promise you that the Alternate Payee will NEVER get her share. N.B. Participants regularly wipe out their former spouse's survivor annuity benefits by simple expedient of remarrying and then retiring before the QDRO has been approved by the Plan. Read Hopkins v. AT&T Global Information Solutions, 105 F.3d 153 (USCA 4th Cir. 1997), and Rivers v. Central and South West Corporation, 186 F.3d 681 (United States Court of Appeals, 5th Cir. 1999). N.B. The suggestion the court is going to enter a hurry-up QDRO or an injunction aimed at the Plan - a non-party to the divorce litigation - would only be made by those of you who have not actually practiced on my side of the street. It is true that the law does not provide any immediate methods of protecting a prospective Alternate Payee. So, people like me have had to come up with creative workarounds, some of which include not so subtle threats and use of the phrase "at your peril". I, for one, would be interesting in ways that I can assure that the legitimate intentions of the parties or the court will prevail. If you as a Plan Administrator have "actual notice" that a suit is pending and that a QDRO has been requested by a spouse and you don't protect the rights of the prospective Alternate Payee, you do so at your peril. David

I can only speak from the perspective of an attorney who has been involved in the preparation of pension and retirement orders for the past 37 years. There are a number of factors in play. 1. In most cases the most valuable assets owned by the family unit are the equity in the marital home and their pension and retirement assets. You cannot treat them lightly. An Alternate Payee's loss of benefits can be financially catastrophic. 2. Most lawyers, and I do mean MOST, have no idea of the complexity if this area of law as applied to the vary narrowly focused question: "How to I make sure my Alternate Payee client receives the proper share of the Participant's benefits." They are, for the most part, ineducable. 3. Most of the judges in my State have had minimal experience as family lawyers. They have been prosecutors or criminal defense lawyers, personal injury lawyers, or even real estate, corporate, tax or administrative lawyers. As competent as these lawyers may be, they don't understand family law, and the nuances are entirely lost on them. 4. I advise my attorney colleagues to have the QDRO's prepared, approved by the parties, and ready to initial and sign at the same time they sign the Marital Settlement Agreement ("MSA"), and then present it to the court at the final hearing and get the certified copy in the mail to the Plan Administrator ASAP. Even before that happens, I suggest that at the earliest possible moment they send a "Notice of Adverse Interest/Claim" to every Plan Administration they can identify, the purpose of which is to give them "actual notice" that a QDRO is or will be on the way. 5. Plan Administrators have a fiduciary duty toward both Participants and Alternate Payees. See 29 U.S.C. § 1104. 29 U.S. Code § 1002(8) defines "beneficiary" as follows: "(8)The term “beneficiary” means a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder. See 29 USC 1132(c) for penalties imposed upon a Plan Administrator for failure to provide information to a Participant or a Beneficiary. Pursuant to 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". 29 USC 1132(e)(1) 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." 6. What does all of this mean? If you are a Plan Administrator and receive "actual notice" that a DRO is coming your way, you attorney will counsel you to put a freeze on the Participant's benefits until the matter is resolved by the parties or by the state court. Failing to implement a freeze may get you involved in a lawsuit that you may very well lose. I have seen this happen at least 100 times. Defined benefit plans will not commence the payments of benefits to a retiree. 401(k) plans will not permit loans, or hardship withdrawals, or in-service withdrawals or post termination withdrawals. 7. It is a rare case that a Participant is happy about paying pension or retirement benefits to an Alternate Payee. One of the ways to avoid may some of all of such benefits is to DELAY the entry of the QDRO by any means possible. See attached a Memo I recently prepared recounting the consequences of delay. I would welcome anyone with additional scenarios that I may have missed. DSG CONSEQUENCES OF DELAY 04-15-24.pdf

The Plan DOES care then the parties were married. In order to compute the Alternate Payee's share in a shared interest allocation of benefits, the Plan needs to to know the date of the marriage and the date of the divorce in order to compute the numerator of the coverture fraction used in what is called the "time rule" in many states, and the Bangs/Pleasant formula is Maryland where Jack's case is pending. In a separate interst allocation of benefits the same information is necessary for the Plan to define the Alternate Payee's separate interest. In both cases the Plan will have the date the Participant started to accrue creditable service in the Plan and the date of the Participant's retirement and then will do the math. You have said that you had a common law marriage. In what state and when was that common law marriage performed? Were common law marriages approved in the state at the time you were married. If so, then pursuant to Maryland law that marriage will be accepted as valid in Maryland even though Maryland did away with common law marriage decades ago. See Harrison v. Harrison, 199 Md. 449 (1952).

See my comments in bold type... My husband was divorced in 2019 in Ohio. The QDRO was never filed. Now we are going back to court Because his ex-wife found out, she has no claim to the nonqualified plan under QDRO’s. So she’s trying to get additional compensation for the nonqualified. Correction. She has a right to a share of his non-qualified plan benefits but cannot use a QDRO to collect it. Only a very few companies will enforce a non-qualifed plan pursuant to a QDRO-like Court Order. I am assuming that when you use the words "QDRO" and "qualified" and "non-qualified" you are referring to a Plan created/qualified under the Federal law known as ERISA. If not, none of my comments may apply. His divorce decree states that ‘’the plaintiff shall be awarded 50% of the marital portion of the defendants retirement plans both qualified and unqualified. The marital portion shall be determined using a covert coverture fraction. The formula in most states that follow the "time rule" is to take 50% of the retiree's annuity payments if, as and when received, and multiply it by a fraction, the numerator of which is the number of months during the marriage that the Participant accrued creditable service toward retirement, and the denominator of which is the number of months of creditable service accrued by the Participant at the time of retirement. But this language applies to defined benefit plans and a shared interal allocation of benefit, that is, a pension, where, for example you retire at age 65 with a certain number of years of service and a certain income history and you receive a pension for some period of time, normally for for the rest of your life, and your spouse or former spouse receives a share of that retirement annuity and a survivor annuity upon your death that will last for the rest of her life. The termination date for the marriage shall be January 16, 2019. Until such time as a defendant retires, the plaintiff shall be maintained as the beneficiary of said account. ??? The word account does not normally apply to defined benefit plans. The portion of the retirement account Whoops. Now I am certain that you are talking about a defined contribution plan, like a 401(k) or a 403(b) that is to be transferred to the Alternate Payee a tax free lump sum rollover to the Alternate Payee's IRA or other eligible retirement account. So we come face to face with the reality that in order to provide you with any assistance I need to know the exact name of the 163,000 ERISA qualified plans you are dealing with and I must read the exact language of the Divorce Decree. I assume you would want your neurosurgeon to take a look at an MRI of your head before he performs brain surgery. Same thing. awarded to the plaintiff shall be transferred to plaintiff via QDRO free of tax consequences to the defendant, or the Plaintiff. Plaintiff shall be solely responsible for any tax consequences associated with premature distribution of the funds awarded to her. Subsequent to the transfer to the plaintiff of her share of the defendant's retirement accounts, including accumulated games. Plaintiff agrees to waive any further claim to these retirement accounts.’’ We recently found out that she is terminally ill. We are raising their 14- and 15-year-old children that she legally adopted with my husband, who is their biological grandfather. I’m sure she is going to want a separate interest and we want it to be shared. I don't understand. If she is terminally ill what does she care wherther she has a shared interest or a separate interest. I am pretty sure you have no idea what those designations mean. Read the attached Memo. If you are dealing with a defined benefit plan and the Participant has not yet retired, the rule is almost always: "If the Alternate Payee predeceases the Participant prior to the commencement of her benefits, the Alternate Payee's assigned share of the benefits, as stipulated herein, shall revert to the Participant. Should the Alternate Payee predecease the Participant after her benefit commencement date, then such remaining benefits, if any, will be paid in accordance with the form of benefit elected by such Alternate Payee." Since there is no QDRO in place and since it sounds like the judge did not make it clear what he/she intended, and since the Alternate Payee doed not have the option to immeidately elect to begin her separate interest and name a beneficiary on her death, the odds seem pretty good that she will die before commencement of her benefits and her benefits wll revert to the Participant. Game, set, match. She has not had anything to do with the children in the past 4 years. my husband is still working at age 72 and plans to retire within the next 3 to 4 years. One would think with her being terminal she would want the money to go to the children, but she does not. So, would you define what’s in our divorce decree as shared or separate? Shared v. Separate - 02-18-2022.pdf

I’m hoping for some guidance. If Divorce Decree states 3/22nds of military retirement for ex spouse and 29/22nds for military retiree, I assume the denominator of these two fractionis is 32, not 22. no dollar amount and no QDRO. Military retirement benefits not enforced by a QDRO. They are enforced by a Military Retired Pay Division Order ("MRPDO") that used to be called a Constituted Pension Order ("CPO"). If no such Order was entered, DFAS will not make any payments to your ex-. You are making such payments voluntarily and that's fine since the source of the obligation is the Divorce Decree. The MRPDO is just an enforcement tool and if such an Order has been entered DFAS would have automatically added COLAs. Should ex spouse receive COLAs too? In most states COLAs are considered to be marital property. But beyond that, if she is to receive 3/32nds of your Retired Pay and your Retired Pay increases because you have received a COLA, then the amount she will recieve will increase proportionally. DoD 7000.14-R Financial Management Regulation Volume 7B, Chapter 1, Section 2.7 provides: "Both retired pay and survivor annuities are adjusted annually by the change in the Consumer Price Index." Figure 29-1, the Military Retired Pay Division Order states: "Please note that all awards expressed as a percentage of disposable retired pay, including hypothetical awards, will automatically include a proportionate share of the member's COLA regardless of any language in a court order to the contrary." The fraction 3/32nds is 9.375%. So this language applies to you. You can find historical COLAs in the attached DoD regulations. Example: divorced 15 years and had been paying out, same amount of retirement pension, (at beginning of divorce) until now. Should I have been adding the COLAs I have received to ex spouses monthly payment too? DoD FMR Volume07b- 01-31-24.pdf

In Maryland it is not required that the parties sign or approve a QDRO. It is customary, but only as a courtesy. If a party refuses to initial each page and sign the QDRO we submit the QDRO with the word "Declined" written everywhere where the uncooperative party's initial or signature should be, and we file a Motion for Entry of Retirement Benefit Order. See attached. The Motion, attached, cites Maryland law classifying a QDRO as an tool for enforcing another Court Order, the Judgment of Absolute Divorce, very much like a wage garnishment or an attachement or property, neither of which require advance approval by the debtor, and it also points out the Department of Labor pamphlet at https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/publications/qdros.pdf where Question 1.2, 6th paragraph on page 5, says, "There is no requirement that both parties to a marital proceeding sign or otherwise endorse or approve an order." See also https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/qdro-overview.pdf I have literally never seen the Court refuse to enter a QDRO under these circumstances. If necessary, I have been available to testify as an expert witness at the time of the hearing on the Motion. DSG Motion for Entry of QDRO 05-16-2021 (2).docx

Keep in mind that his account is HIS money. When he borrows from his account he is borrowing his own money and is paying it back to himself with interest. [Do not tell me how technically the money belongs to the Plan. The Plan is holding HIS money as a contsructive trustee or as a fiduciary.] I don't see why this is even an issue. If the guy doesn't repay the loan it becomes a distribution at some point with interest. I don't see how the Plan is in any financial jeapardy. Might I also point out is that people generally take out loans because they need the money and they need the money because they are in financial distress and that people who are in financial distress are very likely NOT going to be able to make the repayments in a timely fashion. The IRS website points out that: "If you don’t repay the loan, including interest, according to the loan’s terms, any unpaid amounts become a plan distribution to you. Your plan may even require you to repay the loan in full if you leave your job. "Generally, you have to include any previously untaxed amount of the distribution in your gross income in the year in which the distribution occurs. You may also have to pay an additional 10% tax on the amount of the taxable distribution, unless you: (i) are at least age 59 ½, or (ii) qualify for another exception." How about implementing a hardship distribution plan or an in-service distribution plan. David

Which of these WMATA Plans are you interested in? See attached. WMATA Retirement Plans 3-9-21.pdf

When the new 417e table is released, you will have your answer. But not until then. As Dirty, Harry would ask, 'Do you feel lucky?"

Yes. 301.947.0500 In Gaithersburg

......and whether there is a statute of limitations on the entry of a QDRO is a matter of state law. In Maryland I have prepared QDROs for case where the divorce occurred in the 1990s. In other states the law is that a QDRO must be submitted before the 30 day appeal time runs after the entry of the Judgment of Divorce. In most states the statute of limitations applied to "debts", but the obligation to transfer assets via a QDRO is deemed to be a "duty". In some states the statute of limitations with respect to a court order is 12 years. It sounds to me that she did not get a share of your pension plan and that she only recevied a share of your defined contribution plan.

See my bolded comments. Plan admin What is the name of the plan? There are 175,000 different pension and retirement plans in the USA. Some are under ERISA relating to private companies. Other plans are under Federal law addressing US Government plans like FERS, CSRS, Military. Still other are created pursuant to State, County, City and Municipal law. They are not all the same. send 3 letters to the defense In discussing pension and retirement issues and QDROS you have a Participant and an Alternate Payee. It does not matter if the parties are Plaintiffs or Defendants. asking for the pre approved DRO Pre-approved by whom? sent back Sent back to who? signed and certified Certified by a Court? so his client could be paid also stated that the was no hold on the account I assume you are dealing with a defined contribution plan and not a defined benefit plan, but you didn't say? due to ERISA rules so if the Participant filed the paperwork to remove they would have to follow through with that. So it sounds like the parties are divorced and the Participant - you - planned to terminate your employment and roll over your entire account to an IRA take a taxable distribution and hide it under a mattress. And it looks that that is exactly what you did. So they were taking a risk of that. 2019, 2020, 2021. All 3 letters Letters from whom. Plan admin calls and ask if I wanted to roll the funds out as ERISA rules state they had to return the money back to me. I agree and the money is rolled out on the 7th of Oct. Plan Admin had received the sign DRO from the defense on the 6th of Oct. She returned it and asked for a few changes, nothing big and said it would need to be signed and certified and sent back. Well on the 14th of Oct. nothing had been sent back yet. So she call the defense and explains that the money was returned to the participant. The defense gets the QDRO signed on the 18th of Oct. by a new Judge and sends it back to the plan admin. Not certified? Anyway this Judge was being told that I did this willfully to kept my ex wife from receiving her share. That was so off the wall as well as the contempt charge he gets from the Judge because I willfully took all the funds and thumbed my nose at the court. The source of the obligation to convey a share to your former spouse did not originate with in the QDRO. It originated in the Marital Settlement Agreement you signed, if any, or in the Judgement of Divorce. The QDRO is nothing more than a collection tool, like a garnishment of your wages or an attachment of your property for a debt. You owe her the money. Her attorney was negligent in not getting the QDRO prepared, entered by the Court and a certified copy sent to the Plan Administrator. But she can pursue you for her share. When I tried to explain I was was shut off. Video court. So I retired on a disability retirement.Chief, Merchant Marine. They had me arrested and put in jail I'm over 72 years old and they beat me shoved me in a car and now I am on medication for fear of jail again. Now the Judge is saying that they will get a warrant of commitment for holding the money from his client, if I don't pay them $132,000. No bondsman. Cash only. I have asked about the statutes and the Judge told me to get a good attorney. It looks like in your State they take contempt of court very seriously. Every state is different. You need to pay her what is due to her. And the judge can put you in jail and make you pay interest on the amount due and make you pay her attorney fees. That will purge the contempt and you will be a free man. Well can't do that as they have frozen all my accounts. Can't even buy a stick of gum, unless I borrow the money. QDRO Masters did the QDRO for the defense. In fact in 2018 he had it made in the Order that his client would be responsible to get the QDRO done and he has had me in court on contempt charges for not doing what the decree stated. He gets the court fee from his client and then the attorney fees out of me so he is making bank here on the both of us. I have tried to explain and now the Judge is stating the approved DRO back in 2016 that was never signed but plan admin pre approved it was done but now she signed the new one in 2021 so that made it a new transaction? Has anyone heard of this before? Get a good lawyer. You're going to need one. You are the architect of your own problems.

I don't think the USCA for the 7th Circuit has addressed this issue but there are cases all over the courntry that have permitted post distribution suits in order to overcome Kari E. Kennedy, Executrix v. Plan Administrator for Dupont Savings and Investment Plan, 129 S.Ct. 865, 555 U.S. 285 (2009). But keep in mind that in footnote 10 Kennedy said: ""Nor do we express any view as to whether the Estate could have brought an action in state or federal court against Liv to obtain the benefits after they were distributed. Compare Boggs v. Boggs, 520 U.S. 833, 853, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997) ("If state law is not preempted, the diversion of retirement benefits will occur regardless of whether the interest in the pension plan is enforced against the plan or the recipient of the pension benefit"), with Sweebe v. Sweebe, 474 Mich. 151, 156-159, 712 N.W.2d 708, 712-713 (2006) (distinguishing Boggs and holding that "while a plan administrator must pay benefits to the named beneficiary as required by ERISA," after the benefits are distributed "the consensual terms of a prior contractual agreement may prevent the named beneficiary from retaining those proceeds"); Pardee v. Pardee, 2005 OK CIV APP. 27, ¶¶ 20, 27, 112 P.3d 308, 313-314, 315-316 (2004) (distinguishing Boggs and holding that ERISA did not preempt enforcement of allocation of ERISA benefits in state-court divorce decree as "the pension plan funds were no longer entitled to ERISA protection once the plan funds were distributed")." Some of recent cases upholding post-distribution suits are: Andochick v. Byrd, 709 F.3d 296 (USCA 4th Cir.,2013). In re: Marriage of Stine, No. A154972, Court of Appeals of California, First District, Division One, - Filed November 22, 2019 - that you can find at - https://scholar.google.com/scholar_case?case=17865274454005199096&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:14880692104701005079:AAGBfm2qi1_JaXLJvydb4f3quYTnTlLkbA cited Andochick v. Byrd. Hennig v. DIDYK, Tex: Court of Appeals, 438 S.W.3d 177 (2014). In McCarthy v. Estate of McCarthy, No. 14-CV-6194 (JMF), United States District Court, S.D. New York (2015) United States District Court for the Northern District of Ohio in Davis v. Drake - http://scholar.google.com/scholar_case?case=3333936970567538351&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt Cunningham v Hebert, Case No. 14 C 9292, United States District Court, N.D. Illinois, Eastern Division. November 1, 2016 - that you can find at: https://scholar.google.com/scholar_case?case=17784378297196159743&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt There are many other from US District Courts as well.

In order to get valid answers to your questions you need to provide sufficient information. Here are my comments on your post. My husband retired as a NYC teacher with a disability pension 2 years ago after a brain aneurysm. At that time, he was living with a different woman and when filling out the retirement paperwork, they chose the irrevocable disbursement option for her to get continued payments after his death. IN MOST DEFINED BENEFIT PLAN THE LAW REQUIRED THAT THE SPOUSE MUST BE NAMED TO RECEIVE SURVIVOR ANNUITY BENEFITS. I ASSUME A NYC TEACHER WOULD BE COVERED BY A UNION PLAN, SO YOU NEED TO CONTACT THE UNION AND FIND OUT IF A MEMBER CAN NAME SOMEONE OTHER THAN HIS WIFE AS THE SURVIVOR ANNUITANT. IT IS ALWAYS POSSIBLE THAT AT THE TIME OF HIS RETIREMENT YOU SIGNED A DOCUMENT WAIVING YOUR SURVIVOR ANNUITY BENEFITS. IT IS POSSBLE THAT THE SAME RULES DO NOT APPLY TO DISABILITY PENSIONS IN NEW YORK. They have since broken up and we are now married. WHAT DO YOU MEAN "NOW MARRIED"? WERE YOU DIVORCED AND REMARRIED? He has been told there is no way to change that option or have his pension recalculated so that he may receive the maximum payment. I HAVE SEEN ANY NUMBER OF CASES WHERE A PARTICIPANT HAS FORGED HIS WIFE'S NAME TO THE RETIREMENT PAPERS OR HAS STATED THAT SOMEONE OTHER THAN HIS WAS WAS HIS ACTUAL WIFE. HAVE YOU SEEN HIS APPLICATION FOR RETIREMENT? It has been suggested that he hire a lawyer but what kind of paperwork would a lawyer have to file to get this changed? Are there cases in the past of lawyers being successful in facilitating these changes? THERE IS NO WAY TO ANSWER THIS QUESTION UNTIL THE LAWYER KNOWS ALL OF THE FACTS AND YOU DON'T KNOW THEM YET. A LAWERS CHANCES OF SUCCESS ARE ZERO IF HE NEVER FILES SUIT. WAYNE GRETSKY SAID "YOU MISS 100% OF THE SHOTS YOU DON'T TAKE." HIRE A LAWYER. NOTE THE THAT YOU MAY BE ENTITLED TO A SHARE OF HIS RETIREMENT ANNUITY BENEFITS, BUT TO GET SUCH BENEFITS YOU WILL HAVE TO OBTAIN A DIVORCE, AT WHICH TIME THE JUDGE WOULD ISSUE AN ORDER GIVING YOU A SHARE OF HIS RETIREMENT BENEFITS AND LIKELY SURVIVOR BENEFITS AS WELL. HIRE A LAWYER. YOU HAVE NO WAY OF FIGURING THIS OUT FOR YOURSELF.

An acutary is a person who believes that if you put your left foot in icewater and your right foot in boiling water, on the average you're comfortable. An actuary is a person who, when faced with a choice of buying a watch that doesn't run at all and one that loses one second a day, will choose the watch that doesn'r run at all because it is absolutely correct twice a day while the watch that loses one second a day is right only once every 17 years. An actuary is a person who, when in a burning airplane, must choose between riding the airplane to the ground or parachuting out, will choose to stay with the plane because statistically flying is safer than parachuting. An actually will not understand that you don't need a parachute to skydive, but you do need a parachute to skydive twice.

Has is occured to anyone to ask the person who posted the message what "IRS regulations state that grandchildren are not eligible to receive distributions"? I for one would be interested in that. Most 401(k) Plans that I have seen have an "order of preference" that would apply in the case of a participant who dies without having named a beneficiary. I would look something like this: 1. To your widow or widower. 2. If none, to your child or children equally, and descendants of deceased children by representation. 3. If none, to your parents equally or to the surviving parent. 4. If none, to the appointed executor or administrator of your estate. 5. If none, to your next of kin who is entitled to your estate under the laws of the state in which you resided at the time of your death. In the absense of an order of preference the account would pass to the estate of the deceased participant and be distributed pursuant to state law that applies when the deceased party dies intestate. DSG

How about setting up a solo 401(k) - a/k/a an Independent 401(k), or a Self Employed 401(k) or an Individual 401(k). A tax-advantaged retirement savings plan available to individual small business owners and their spouses. The plan is a variation on the typical 401(k) plan offered by many large employers. Since, in this case, the employer and the employee are one and the same, the contribution limits for the independent 401(k) are higher. Contributions made to the plan as an employer are also tax-deductible, which can save the sole proprietor a great deal in taxes. Elective deferrals up to 100% of compensation (“earned income” in the case of a self-employed individual) up to the annual contribution limit $23,000 in 2024. It's a little more complicated.

POST MORTEM/POSTHUMOUS QDROS-- In most case the need for a post mortem QDRO arises in cases where the Participant has died. I don't know for sure whether the same law applies when it’s the Alternate Payee who has predeceased the entry of a QDRO. Start at - https://www.law.cornell.edu/cfr/text/29/2530.206 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." (Emphasis supplied.) In Eller v. Bolton, 168 Md.App. 96, 895 A.2d 382 (2006) -https://scholar.google.com/scholar_case?case=14971316948354987133&q=ELLER+V.+BOLTON&hl=en&as_sdt=4,21 the Maryland Court of Special Appeals held that it was permissible for the trial court to enter a post-mortem QDRO following the death of the Alternate Payee. The new QDRO was required to clarify and correct the original defective QDRO. The facts of this case are so convoluted that it is doubtful that it can be relied upon in a case where the Participant dies before a valid QDRO is entered. Note that the parties went through Federal Court and then through the Maryland trial court and to the CSA. The CSA in in Eller relied upon the holding of the U.S. Court of Appeals for the Tenth Circuit in Patton v. Denver Post Corp., 326 F.3d 1148 (10th Cir.2003) and concluded that a domestic relations order entered nunc pro tunc to cure an omission of relevant information is proper. Note: There should be language in the Plan Documents that set forth what happen in the Alternate Payee dies prior to the entry of the QDRO. Note: Keep in mind that if the Agreement of the parties and/or the Judgment of Divorce contains everything mandated by 26 USC 414(p)(2), it will likely constitute a QDRO and a separate Order will not be required. https://www.law.cornell.edu/uscode/text/26/414 Note: Perhaps the most important fact is that The obligation to share a pension benefit exists whether or not a QDRO is ever entered. The QDRO is merely an enforcement tool for the court to implement the Agreement of the parties incorporated into the Judgment of Divorce, or the Judgment of Divorce if no Agreement was executed. The QDRO is not the source of the obligation. Sue the Participant. The same issue was raised in 2019 re: this issue. Here was my response. "If the husband's estate will be asking the Plan to make retroactive payments to an Alternate Payee's estate that have already been paid out to the Participant, I don't think that can happen. See Patterson v. Chrysler Group, LLC, 2016 U.S. Dist. LEXIS 18862 (E.D. Mich. Feb. 17, 2016), holding that a nunc pro tunc QDRO entered by a State court trumps ruling of Plan Administrator that the “QDRO” submitted did not satisfy ERISA requirements so as to make it acceptable as a valid QDRO that the Plan was required to implement during the lifetime of the Participant. The Participant had retired, elected a single life annuity, received his retirement benefits during his lifetime, and died before any QDRO was approved by the Plan Administrator. Three DROs were submitted to the Plan Administrator, the last one “nunc pro tunc”, seven years after his death. All were rejected as being not “qualified” under ERISA. Nothing was ever paid to the Alternate Payee. The District Court decided that even though the Participant received everything he was entitled to under his “single life annuity” election and there was nothing left for the Alternate Payee, nevertheless the third nunc pro tunc (to the date of retirement) QDRO, entered post mortem, was valid and that the Plan owed the Alternate Payee her marital share of the deceased Participant’s already paid out benefits. This is not a Pension Protection Act of 2006 situation that would permit a post mortem QDRO. Given the many cases dealing with Federal preemption, I don’t see how this ruling can survive an appeal. Some of the cases were cited by the Court as follows: “In other words, the dispositive issue is whether a state court's designation of a DRO as a nunc pro tunc order must be given effect when evaluating whether the DRO meets ERISA's qualification requirements. Neither the Sixth Circuit nor the Supreme Court has resolved this issue. Persuasive authority on the issue is split. Compare Payne v. GM/UAW Pension Plan, No. CIV.A. 95-CV-73554DT, 1996 WL 943424, at (E.D. Mich. May 7, 1996) (unpublished) (holding nunc pro tunc DRO qualified); Patton v. Denver Post Corp., 326 F.3d 1148, 1152 (10th Cir. 2003) (finding Payne persuasive on validity of state court use of the nunc pro tunc doctrine to render DRO compliant with ERISA's qualification requirements); Yale-New Haven Hosp. v. Nicholls, 788 F.3d 79, 86 (2d Cir. 2015) (holding nunc pro tunc DROs qualified because, under the nunc pro tunc fiction, they assigned benefits to plaintiff before those benefits vested in someone else), with Samaroo v. Samaroo, 193 F.3d 185, 191 (3d Cir. 1999) (declining to follow Payne, stating that the facts in Payne serve as an example of potential abuse of a nunc pro tunc DRO, and holding that a DRO's effect on an ERISA plan was a matter of federal law and thus not affected by the state court designating it nunc pro tunc); Yale-New Haven Hosp., 788 F.3d at 92 (Wesley, J., concurring and dissenting) ("I am aware of no legal authority that permits a state court to issue an order and adopt a legal fiction about the order's existence earlier in time such that the state order so easily thwarts the intricate federal statutory scheme surrounding the antialienation of pension benefits.").” My prediction about the survival of this decision was correct, but for the wrong reasons. On January 11, 2017, the U.S. Court of Appeals for the 6th Circuit, in Case No. 16-1365, reversed the District Court’s decision on statute of limitations grounds. The opinion is worth reading. You can find it at: https://caselaw.findlaw.com/us-6th-circuit/1765406.html Part of the opinion was as follows: “As in other states, Michigan court orders issued nunc pro tunc do not retroactively modify substantive rights declared in older court orders. See Sleboede v. Sleboede, 184 N.W.2d 923, 925 (Mich. 1971). Rather, they merely "make [the court's] records speak the truth—to record that which was actually done, but omitted to be recorded." Id. at 925 n.6. That is, nunc pro tunc orders fix clerical mistakes in old orders. Nunc pro tunc orders do not revise the substance of what has transpired, backdate events, or give rise to new substantive rights, including resetting the statute of limitations. Crangle v. Kelly, 838 F.3d 673, 680 (6th Cir. 2016) (finding that Ohio nunc pro tunc orders "merely correct[] . . . record to accurately reflect the court's actions . . . not . . . reset[] the statute of limitations . . . ."); Glynne v. Wilmed Healthcare, 699 F.3d 380, 383-84 (4th Cir. 2012) (holding that nunc pro tunc orders "correct mistakes or omissions in the record so that the record properly reflects the events that actually took place. [They] may not be used to retroactively record an event that never occurred or have the record reflect a fact that never existed."); W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001) (holding nunc pro tunc orders cannot be used to rewrite history); Central Laborers' Pension, Welfare and Annuity Fund v. Griffee, 198 F.3d 642, 644 (7th Cir. 1999) ("[T]he only proper office of a nunc pro tunc order is to correct a mistake in the records; it cannot be used to rewrite history."); Walls v. United States, No. 2:06-CV-12441, 2006 U.S. Dist. Lexis 93850, at *1 (E.D. Mich. Dec. 29, 2006) (same). “Furthermore, accepting the district court's view would create an untenable situation regarding submission of domestic-relations orders to pension plans. Under this view, no matter how long ago a plan denied a domestic-relations order, the denied claimant could circumvent the statute of limitations and revive his cause of action by obtaining and submitting a nunc pro tunc version of the denied order to the pension plan, force the plan to reiterate its denial, and effectively reset the statute of limitations. In such a world, no claim would ever truly be time barred, but merely waiting for a nunc pro tunc order to issue. Such a system defeats the clearly understood policy goals of statutes of limitations. See Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49, (1944) (noting that statutes of limitation are designed "to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared."); Carey v. Int'l Bhd. of Elec. Workers Local 363 Pension Plan, 201 F.3d 44, 47 (2d Cir. 1999) (stating that statutes of limitation serve to encourage "rapid resolution of disputes"). “Therefore, we reverse and hold that the nunc pro tunc Order did not give rise to a new cause of action, or reset the statute of limitations.” The fact that the Plan Administrator had already paid out 100% of the Participant’s entitlement by the time the QDRO was presented was not a factor. Or maybe the Court of Appeals was just looking for a way to dodge the issue. Suppose the Participant selected a life annuity and died after 3 years, that is, before the expiration of the Statute of Limitations. The Court would have had to deal with the question of whether or not the nunc pro tunc Order issued by the State Court trumped ERISA. They had a back door out of this question in this case. Let’s see what happens in the next case. Back to the case presented, the Alternate Payee's estate should be able to go directly against the Participant. As I said above, the obligation to share a pension benefit exists whether or not a QDRO is ever entered. The QDRO is merely an enforcement tool for the court to implement its Judgment of Divorce. But you still have to worry about such defenses such as res judicata (finality) and laches (delay in protecting one's rights). And the deceased Alternate Payee's claim may have abated on his death under State law. Interesting situation."