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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."

A Court Order Acceptable for Processing (COAP) is a court order that us used to transfer retirement and survivor annuity benefit from a Government employee under FERS or CSRS or the FSPS to a former spouse. It serves the exact same purpose as a QDRO that is used to transfer pension and retirement benefits in private company plans under a number of Federal laws - ERISA, the IRC, the REA and the PPA of 2006. 99.9% of the time it is a stand alone order that can be 7 to 9 pages long if you address all of the possible issues. Most states regard a COAP or a QDRO as an enforcement tool, like a garnishment or an attachment, to enfore an obligation seet forth in the Judgment of Divorce. OPM will accept a Judgment of Divorce as a COAP if it has ALL of the information required by their Regulations. See attached. One problem is that in most states the COAP can be amended if there is a problem, whereas the ability to amend the Judgment of Divorce may expire after the 30 appeal time has run. The COAP needs to address, for example. (i) the formula for determining the amount of retirement benefit to be paid to the former spouse; (ii) the percentage of survivor annuity benefits to be paid to the former spouse if the employee predeceases; (iii) who will pay the cost of the survivor benefits (if the COAP is silent, the full cost is paid by the employee); (iv) the award of Basic Death Benefits; (v) disability retirement; (vi) what will happen to the former spouse's share if she predeceases the employee? (vii) and more. NOTE: If a Fedeal Employee has a CSRS or FERSf retirement annuity, he/she will also likely have a TSP account. DSG Handbook for Attorneys OPM.pdf

I suspect the judge meant defined contribution plans and defined benfit plans. In a defined contribution plan like a 401(k) the Court would have specified an amount or a percentage as of a certain valuation date that she was to receive and if that amount would include or exclude loans and if the amount awarded was to be adjusted for gains and losses from the valuation date to the date of transfer to you. With regard to a defined benefit plan, in my State of Maryland and in other states (Iowa and Tennessee and maybe others) if the Court does not specifically mention surivor annuity benefits in the divorce degree, the former spouse does not receive them...full stop. So you need to ask you lawyer if that is true in your state as well. And in a definined benefit plan the Court would have had to specify the amount or percentage or a formula to compute the amount of retirement annuity that your former spouse was receive. And if survivor annuity benefits were awarded, the divorce decress woud have to state the amount or percentage or a formula to compute the amount of the former spouse's share and who was to pay the cost of this survivor benefits. As for health care, she cannot be on your health care plan after the divorce. She will have COBRA benefits through your employer for 36 months at her expense. Courts only have the power to do what State and Federal law authorize them to do. I have never seen a state law that give a court to order a party to order a party to provide health insurance to a spouse beyond the termination of the marriage. If the Court is concerned about the former spouse's abilty to pay for health insurance, the Court will order the payment of alimony. When your provide the complete language of divorce decree we may be able to help you. David

Hardship distributions are "in service" distributions. There is no need for a hardship distribution if the Participant is no longer an employee, that is, no longer "in service". As a former employee he can take any distribution or roll over that he may elect without having to justify the need for it. DSG

From having prepared QDROs for the past 38 years I can tell you that almost no non-qualified plans will enforce a DRO. I have found only two exceptions - some of the non-qualified plans at Lockheed-Martin, and one non-qualified plan an General Electric. In the event that the employer/Plan Sponsor goes out of business or files for Bankruptcy, the Participants become unsecured general creditors and stand in line with all other unsecured creditors. Since most non-qualified plans will exist before the divorce and will be ongoing after the divorce, and will likely increase or decrease in value in the future based on performance criteria that may relate backwards and/or forwards, but in all events will make it almost impossible to figure out the value of the marital share at the time of the divorce and the value of the marital share years down the road where some or all of the change in value may be due to post marital effort by the employee, or by the division in which the employee works, or by the company as a whole. The only reported case in the US discussing the valuation of a non-qualified and unfunded deferred compensation plan is Douglas v. Douglas, 281 A.D.2d 709, 722 N.Y.S.2d 87 (2001), holding that a non-qualified and unfunded deferred compensation plan was capable of being valued for marital property purposes. Said the Court: “Next, plaintiff argues that his ability to collect from the unfunded, non-qualified retirement plan is too speculative to be valued as a marital asset. In support of his argument, plaintiff points out that since the plan is unfunded, payments are dependent upon the partnership remaining profitable and that to be eligible, one must be a partner for 10 years, be 50 years of age, not leave to compete with the partnership in another firm, and retire. Since plaintiff was not 50 years of age on the date that the action was commenced, his expert attempted no valuation of his interest, asserting that it was valueless. To the contrary, non vested pensions are subject to equitable distribution (see, Burns v Burns, supra, at 376) and the uncertainty associated with the fulfillment of the conditions precedent to the receipt of such nonvested pensions does not present a significant impediment to a fair and realistic distribution of this type of asset (see, id., at 376). “Defendant's expert, on the other hand, noted that no partner had left plaintiff's firm to work for a competing firm in over 50 years and that historically the partnership was profitable enough to make payments called for by the plan to retired partners. Moreover, the expert assumed, and the record discloses no evidence to the contrary, that plaintiff would continue as a partner (in fact, he has more than 10 years as a partner in the firm and is now age 50), and he valued plaintiff's interest in the retirement plan at $412,700, $460,400 or $479,400, depending on whether plaintiff retired at age 50, 56 or 62. Given the uncontroverted evidence of valuation, Supreme Court did not abuse its discretion by accepting the valuation ascribed by defendant's expert (see, Ferraro v Ferraro, supra, at 598). Lastly, there is no merit to plaintiff's contention that the Majauskas formula (see, Majauskas v Majauskas, 61 NY2d 481) [time value with coverture fraction] should have been employed by Supreme Court since this formula need not be used where, as here, "a lump-sum payment discounted for present value" may be made to effectuate distribution of pension benefits (Mullin v Mullin, 187 AD2d 913, 915; see, Majauskas v Majauskas, supra).” See also an interesting case from Louisiana, Knobles v. Knobles, 236 So. 3d 726 (La Court of Appeals, 5th Cir. 2017, where the Louisiana Court of Appeals held that a “restoration plan” adopted long after the termination of the marriage was computed with reference to time during the marriage that the Participant was employed by the company in question. Said the Court: “Although Mark did not qualify for the Restoration Plan until his compensation from Chevron exceeded the applicable annual compensation limit, well after the community ceased to exist, the benefits Mark will receive under the Restoration Plan are calculated based in part on his credited service years accumulated during the existence of the community with Kay. Mark's years of employment during the marriage factored into his right to receive the increased accrued benefits of the Restoration Plan once it became effective and Mark met the requirements; thus, the community has an interest in the whole of the accrued benefit. See generally, De Montluzin v. Martinez, 94-1805 (La. App. 4 Cir. 2/23/95); 652 So.2d 71, 76-77, rehearing denied, (La. App. 4 Cir. 4/19/95). Because Mark's years during the marriage were used to determine his eligibility for participation in the Restoration Plan, we find that Kay is entitled to a right-to-share in one-half of the portion of the plan that is a community asset, despite the fact that a determinative value came into existence many years after the dissolution of the marriage. See, Sims, supra. Although the Consent Judgment between the parties anticipated the community property portion of the Restoration Plan as an undiscovered asset, Kay would have ultimately been entitled to that community asset through applicable jurisprudence and community property laws.” But see D.S. v. D.S., 217 Conn.App. 530, 289 A.3d 236 (2023) that reached the opposite conclusion as the Douglas case. In D.S. the decision was based on the opinion of the expert, Harrison, a CPA, that: "As an initial matter, Harrison noted, the provisions for retirement payments set forth in the partnership agreement are not funded and are not carried on the firm's books as a liability. Rather, retirement payments are disbursed from the firm's future earnings. Harrison found it significant that the provision for retirement payments is subject to termination or reduction at any time by a vote of the firm's partners. Harrison pointed out, as well, a provision in the partnership agreement reciting that the payments to a retiree could be adjusted by the firm's compensation committee and the concurrence of a certain number of partners on their determination that the payments are no longer fair to the remaining partners or the firm, or are otherwise inappropriate or inequitable to the former partner. Retirement payments also could be adjusted, deferred, or simply not paid, if the payments to retired partners exceed a certain percentage of the firm's income. In that event, the partnership agreement provides, payments to retirees may be deferred and not paid for up to five years and, if the payments cannot be made during the period of deferral, the obligation of the firm to make payments could be extinguished forever. Distinguishing the partnership retirement provisions from a qualified pension plan, Harrison characterized the defendant's potential to receive retirement payments from the firm as "the epitome of a mere expectancy." (Emphasis supplied.) Brett Turner, Editor of Westlaw's Equitable Distribution of Property, commented on D.S. v. D.S. is as follows. “Unvested and Uncertain Benefits. In D. S. v. D. S.,[new note 26.4] the wife was a partner in a law firm. The firm's partnership agreement provided "that a partner who has reached the age of fifty and completed at least ten years of service, may retire and receive a stream of payments."[new note 26.5] The potential benefits "are not funded and are not carried on the firm's books as a liability. Rather, retirement payments are disbursed from the firm's future earnings."[new note 26.6] In the past, "the firm had changed the formula by which a retiree's pay is determined as the firm's demographics have changed to reflect the greater number of retirees visà-vis active partners,"[new note 26.7] and these changes actually reduced the wife's potential benefits. A financial expert testified for the wife that the stream of benefits was too uncertain to constitute property. The trial court agreed, and the appellate court affirmed. “D. S. reached the wrong result. While the amount of benefits likely to be received was difficult to predict in advance, there was no evidence suggesting that the wife was likely to receive nothing. The right to payment appears to have been considerably more certain than a stock option, which has a substantial chance to be worth nothing if the stock price is less than the option's strike price. See §§ 6:48-6:49; see generally Bornemann v. Bornemann, 245 Conn. 508, 752 A.2d 978 (1998) (holding that stock options are property). The court should have held that the right to payment was property, and divided it by deferred distribution, awarding the husband a stated percentage of whatever payments the wife ultimately did receive. “D.S. is especially troubling because the wife's right to payment may very well have been carefully designed to maximize the likelihood that the payments would not have to be shared with a partner's spouse. The result suggests it is possible for an employer to carefully design a benefit program which gives substantial payments to employees, but which includes just enough uncertainty to avoid division of the benefits at divorce. D.S. therefore poses a significant potential threat to the policy that retirement benefits earned during the marriage are marital property. “Future cases should hold that unvested retirement benefits are property unless it is entirely speculative whether any benefits will be received at all. On the facts of D.S., there was a possibility that the wife’s benefits might be reduced, but there was no actual likelihood that the wife would receive nothing at all.” Changing to the issue of whether or not "unfunded" is even defined by ERISA, in Demery v. Extebank Deferred Comp. Plan (B), 216 F.3d 283, 285 (2d Cir. 2000), the Second Circuit addressed whether a plan was unfunded where: 1) the employer took out life insurance policies on its employees to help pay for its obligations under the plan and 2) the proceeds of the policies were kept in an account entitled Deferred Compensation Liability Account. In Demery, the court first recited its previous holding that a plan is unfunded where "benefits thereunder will be paid solely from the general assets of the employer." Id. (citing Gallione v. Flaherty, 70 F.3d 724, 725 (2d Cir. 1995)). Then, the court adopted the following inquiry as instructive: "can the beneficiary establish, through the plan documents, a legal right any greater than that of an unsecured creditor to a specific set of funds from which the employer is, under the terms of the plan, obligated to pay the deferred compensation?" Id. (quoting Miller v. Heller, 915 F. Supp. 651 (S.D.N.Y. 1996)). Applying the above test, the court held that the plan was unfunded. Id. at 287. Of particular importance was the plan's express terms, which stated: "[T]he Employer's obligation to make payments to any person under this Agreement is contractual and ... the parties do not intend that the amounts payable hereunder be held by the Employer in trust or as a segregated fund for the Employee.... The benefits provided under this Agreement shall be payable solely from the general assets of the Employer, and neither the Employee, the Beneficiary, nor any other person entitled to payments ... shall have any interest in any specific assets of the Employer by virtue of this Agreement. Employer's obligation under the Plan shall be that of an unfunded and unsecured promise of Employer to pay money in the future." Id. Based on those terms, the court concluded that the participants did not have a greater legal right to insurance proceeds than that of an unsecured creditor, thus the plan was unfunded as a matter of law. Id. Other circuits addressing this issue have reached similar conclusions. See Reliable Home Health Care, Inc. v. Union Cent. Ins. Co., 295 F.3d 505, 514 (5th Cir. 2002) (holding that a plan was unfunded for purposes of ERISA, even though plan benefits were technically funded through an insurance policy, since plan participants did not own the insurance policies, and their only right under the plan was to designate death beneficiaries); Belsky v. First Nat. Life Ins. Co., 818 F.2d 661, 663 (8th Cir. 1987) (holding that a plan was unfunded where an employer "obtained the insurance policy with the intention that it could be used in funding the Plan" but "the language of the Plan ... specifically avoids making a direct tie between the insurance policy and the Plan"). See In re IT Group, Inc., 448 F.3d 661, 669-670 (3d Cir. 2006) (finding a plan to be unfunded where the related Rabbi trust documents specified that the trust "shall not affect the status of the Plans as unfunded plans" and that "Trust assets are subject to creditors' claims in the event of insolvency, and that such claims are on par with those of Plan participants"); see also U.S. Dep't of Labor Opinion Letter 91-16A (July 2, 1991) ("[A] plan will not fail to be `unfunded' ... solely because there is maintained in connection with such plan a `Rabbi trust.'"). See Colburn v. Hickory Springs, No. 5:19-CV-139-FL, United States District Court, E.D. North Carolina, Western Division (2020), see: - https://scholar.google.com/scholar_case?case=1317766776274361048&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:17102308171145443235:AAGBfm2dXJvPo0nUQKlDLqIPUBXxyXMitw There are lots of non-qualified plan out there. See my Memo attached. Start at page 29 with respect to non-qualified plans that almost never cannot be enforced with a DRO. If you can find a plan that has a grant date for the benefit, and a vesting date you can formulate the language necessary for an Agreement, not a DRO. For example if the grant date is during the marriage and the vesting date takes place during the marriage the entire profit, income or gain will marital property and will be marital property and become divisible at the time it turns into cash by whatever means that may be. And the former spouse will receive 50% of such profit, income or gain net of the Participant's taxes and the cost of monetization. If the grant date is during the marriage and the vesting date takes place after the divorce, profit, income or gain will marital property and will become divisible at the time it turns into cash by whatever means that may be. The former spouse's share will be 50% the amount of such income, profits or gain net of the Participant's taxes and the cost of monetization multiplied by a fraction where the numerator is the number of months from the grant date to the divorce, and denominator is the number of months from the grant date to the vesting date. Do you really want to wallow into these thickets? David List of Defined Contribution & Benefit Plans- Qualified or Not - 04-14-2023.pdf

https://www.bloomberglaw.com/external/document/X34LHKL4000000/retirement-benefits-professional-perspective-spousal-consent-req

I assume the parties are still married and have signed an Marital Settlement Agreement (MSA) with a mutual waiver of retirement AND survivor annuity benefits in ERISA qualified defined benefit plans. There is no question that the waiver of retirement benefits is valid. The only relationship the Plan Administrator has with respect to the retirement benefits is to obey a valid QDRO, if there is one. With regard to the survivor benefit that I assume are QPSA and QJSA, the law mandates that a former spouse be named to receive those benefits, but I have seen many hundreds of cases where the prospective Alternate Payee waives those benefits in an MSA and where the QDRO affirmative states that the survivor annuity benefits are waived. But what if there is no QDRO because, as in this case, the parties have waived both retirement and survivor annuity benefits? The answer is that the Participant notifies the Plan Administrator of the waiver language in the MSA providing whatever proof is required by the Plan documents. What you seem to be talking about is where there is a waiver but the Participant fails to change the beneficiary. If you are talking above a defined contribution plan there is a potential beneficiary but it's not a QPSA or a QJSA unless the defined contribution plan has an option for an annutized payout. If you are talking about a defined benefit plan then there is no "beneficiary" there is only an Alternate Payee who will in most all cases be a new spouse. https://www.law.cornell.edu/cfr/text/26/1.401(a)-20 So that gets is to Kari E. Kennedy, Executrix v. Plan Administrator for Dupont Savings and Investment Plan, 129 S.Ct. 865, 555 U.S. 285 (2009) which you can find at - https://scholar.google.com/scholar_case?case=16253581861885772265&q=Kari+E.++Kennedy,+Executrix+v.++Plan+Administrator+for+Dupont+Savings+and+Investment+Plan,+129+S.Ct.+865+(2009)&hl=en&as_sdt=20000003 where the plan in question sounds very much like a defined contribution plan: "The SIP [Savings and Investment Plan) is an ERISA "`employee pension benefit plan,'" 497 F.3d 426, 427 (C.A.5 2007); 29 U.S.C. § 1002(2), and the parties do not dispute that the plan satisfies ERISA's antialienation provision, § 1056(d)(1), which requires it to "provide that benefits provided under the plan may 869*869 not be assigned or alienated."[1] The plan does, however, permit a beneficiary to submit a "qualified disclaimer" of benefits as defined under the Tax Code, see 26 U.S.C. § 2518, which has the effect of switching the beneficiary to an "alternate ... determined according to a valid beneficiary designation made by the deceased." (Emphasis supplied.) In Kennedy the Judgment of Divorce stated that the wife, "is ... divested of all right, title, interest, and claim in and to ... [a]ny and all sums ... the proceeds [from], and any other rights related to any ... retirement plan, pension plan, or like benefit program existing by reason of [William's] past or present or future employment." Unfortunately the husband never executed a new beneficiary designation and at his death the Plan paid over the benefits to wife. The Supreme Court held that the Plan was required to pay the benefits to the named beneficiary. But in Footnote 10 they 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")." (Emphasis supplied.) Since the Kennedy case there have been many dozens of cases permitting post-distribution suits under various theories such as breach of contract, unjust enrichment, and constructive trust. In Andochick v. Byrd, 709 F.3d 296 (2013), a case originating in Maryland, the United States Court of Appeals, Fourth Circuit, answered the question left open in the Kennedy case, this is, whether an action could be brought against the recipient of life insurance proceeds (or retirement benefits) by reason of having been the named beneficiary of a company plan covered by ERISA, and restore those benefits to the person who equitably should have received such benefits. The issue was stated by the Court as follows: “Scott Andochick brought this declaratory judgment action, asserting that ERISA preempted a state court order requiring him to turn over benefits received under ERISA retirement and life insurance plans owned by his deceased ex-wife, Erika Byrd. ERISA obligates a plan administrator to pay plan proceeds to the named beneficiary, here Andochick. The only question before us is whether ERISA prohibits a state court from ordering Andochick, who had previously waived his right to those benefits, to relinquish them to the administrators of Erika's estate.” The Court held: “Finally, as the Third Circuit recently explained when addressing facts nearly identical to those at hand, “the goal of ensuring that beneficiaries ‘get what's coming quickly’ refers to the expeditious distribution of funds from plan administrators, not to some sort of rule providing continued shelter from contractual liability to beneficiaries who have already received plan proceeds.” Estate of Kensinger v. URL Pharma, Inc., 674 F.3d 131, 136 (3d Cir.2012). Permitting a post-distribution suit against a plan beneficiary based on his pre-distribution waiver does not prevent the beneficiary from “get[ting] what's coming quickly.” Rather, as the district court noted, it merely prevents him from keeping what he “quickly” received. Thus, we conclude that permitting post-distribution suits accords with the ERISA objectives discussed in Kennedy.” (Emphasis supplied.) A 2014 case out of Texas summarized the law on this issue in detail. Hennig v. DIDYK, Tex: Court of Appeals, 5th Dist., No. 05-13-00656-CV, 438 S.W.3d 177 (2014). See - https://scholar.google.com/scholar_case?case=1419348984792461652&q=Hennig+v.+DIDYK,+&hl=en&scisbd=2&as_sdt=4,44 It is worth reading. I am not sure about the history of this: https://www.taxnotes.com/research/federal/irs-guidance/notices/irs-provides-sample-language-on-spouses-rights-to-survivor-annuities/1fs5c See - https://qdrohelper.com/waiver-qdro/ and - https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/advisory-opinions/2000-09a That's about all I can tell you without know more of the facts and a timeline. David