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

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

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

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

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

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

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

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

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

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

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

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

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

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