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See my previous response to your other post. If survivor benefits were not specifically mentioned by the JAD, your ex- will NOT receive. It is difficult to answer questions without seeing the exact language of the JAD.

You are in luck Mr. Stevenson since I am a Maryland attorney. 1st: The case of Potts v. Potts decided in 2002 held that survivor benefits are a form or marital property separate and apart from retirement annuity to which it is attached, and that that if the Agreement of the parties or the Judgment of Absolute Divorce (JAD) do not specifically mention survivor annuity benefits, the former spouse does not get them.....period, full stop. 2nd: It is never too late to file a QDRO in Maryland. The same Potts case held: ""We 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. Therefore, the timing of the presentation of the QDRO is dependent on the diligence of the parties and their counsel or the assertiveness of the trial court." So yes, she can file these QDROs even at this late date. 3rd: With regard to your pension plan, the JAD likely gave her 50% of the "marital portion" of your pension, if , as and when you receive it. So the formula would be 50% of the gross amount of your monthly pension multiplied by a fraction, the numerator of which is the number of months of creditable service toward retirement earned during the marriage, and the denominator of which is the total number of months of creditable service toward retirement earned at the the time of your retirement. It may not be as much as you think. Another possible issue impacting the survivor annuity in Federal plans, e.g., FERS or CSRS, is whether or not she remarried prior to age 55. 4th: As far as the 401(k) is concerned, the issue will be whether or not the amount she receives will be locked into the amount or percentage set forth in the JAD or whether her share will be adjusted for gains, losses and investment experience from the valuation date to the date of actual transfer to her. I would have to see the JAD to comment further on that. Bottom line: Do now be surprised if the Plan Administrator puts a hold on your benefits. Their ass is on the line and they do not want to make a mistake. You can reach me at 301-947-0500 in Gaithersburg. David S. Goldberg www.familymediator.com

I misread the question. I took it to mean that the participant had died, in which event the PPA of 2006 will enable a posthumous QDRO to be submitted and qualified. But Peter Gulia is correct that the estate of the Alternate Payee who predeceases the Participant is not "Alternate Payee" per ERISA § 206(d)(3)(K). A survivor annuity is only payable to an Alternate Payee who survives the Participant's death - be definition. This is not the situation addressed in the discussion on April 11, 2019. See .

What kind of Plan, defined contribution or defined benefit. Pursuant to what law, ERISA, US Military, CSRS, FERS and other Plans administered by OPM, State, County or Municipal Plan, Union Plan, Church Plan, International Plan. Did the Court specifically award survivor annuity benefits. Is this matter pending in a case where if the court does not specifically award survivor annuity benefits the former spouse will not receive them....period, full stop? Like Maryland per the 2002 Potts v. Potts case. If you are referring to an ERISA qualified defined benefit plan and if survivor annuity benefits are subsumed into whatever language is in the Judgment of Divorce, then you are in luck. See my attached Memo that gives you two avenues of attack, the Pension Protection Act of 2006 that permits the post-mortem/posthumous entry of a QDRO, and the concept of "nunc pro tunc". Some states have permitted posthumous EDROs with respect to State pension plans that are not ERISA qualified. Post Morten and Nunc Pro Tunc Memo.pdf David

If you take a distribution the payment is taxable income. You cannot take a loan from a NQDC plan and you cannot roll over a distribution to an IRA or other eligible retirement account. I would read: https://www.fidelity.com/viewpoints/retirement/nqdc and https://www.fidelity.com/viewpoints/retirement/nqdc-part-2

The first questions are: (i) was the QDRO was submitted to the trial judge; (ii) was it signed by the trial judge; (iii) was a certified copy submitted to the Plan Administrator; (iv) was the QDRO approved by the Plan Administrator. You need to check the Courthouse file and with your attorney and with the Plan Administrator for the answer to these questions. The next question is what benefits are you talking about. You will normally have a share of your ex-husband's retirement benefits and that will normally not terminate on his remarriage or your remarriage unless that outcome is set forth in the QDRO or is a requirement of the underlying Plan documents. You should be able to contact the Plan Administrator and ask them if you will still receive your share of his retirement benefits and if any events could change that outcome. You may also be entitled to a survivor benefit (that you will receive after his death) if that is set forth in the QDRO, however in the case of survivor annuity you can lose your entitlement if: (i) you remarry; or (ii) you remarry prior to a certain age, usually 55; (iii) or if he remarries. It will all depend on the language of the QDRO and the underlying Plan document, and once again you should be able to find out the answers from the Plan Administrator. Many municipal plans for police, firefighters or correctional officers do not provide for survivor annuity benefits for former spouses, unless the employee retired during the marriage and elected such survivor annuity benefits and if such election survives the divorce pursuant to the plan documents. Once again, the Plan Administrator will be able to help you. You need to know that Plan Administrators owe a fiduciary duty to the employee/Participant and to the former spouse/Alternate Payee so they should answer any questions you may have. Note that employees of the City seem to contribute to 4 plans: Municipal Employees' Annuity & Benefit Fund of Chicago (MEABF) Laborers' & Retirement Board Employees' Annuity & Benefit Fund (LABF) Policemen’s Annuity & Benefit Fund Firemen's Annuity & Benefit Fund so you need to know exactly what plan is involved and that should be set forth in the Court Order. See this page - https://www.chicago.gov/city/en/depts/fin/supp_info/pension_funds.html Note that the Court Order is not a "QDRO" but a Qualified Illinois Domestic Relations Order (QILDRO). See the attached pamphlet that describes more the 4 plans. Also find attached a QILDRO Booklet and a Model QILDRO Order. Also a Fact Sheet that describes more than the four plans mentioned above. I hope this is helpful. DSG 11-20-23 QILDRO_BOOKLET_20211019 (1).pdf QILDRO_FORMS_2012_04.pdf QIDDRO - Chicago.pdf

Peter. My local (Montgomery County, Maryland) buddies agree with you even though none of them have ever seen a direct distribution from a Roth account. Thanks for your help. David Goldberg

The court awarded my client a percentage share of her ex-husband's 401(k) account. It turns out that abut 90% of his 401(k) are in a Roth funds. I am working on the QDRO. She plans to take a taxable distribution since she needs the money now. If the distribution was coming from a traditional pre-tax 401(k) it would be income taxable to her and the Plan would withhold 20% for Federal taxes, and there would be no 10% premature withdrawal penalty under IRC 72(t)(2)(C). Since it's a Roth account, will she have to pay income taxes on a direct distribution, or will it be tax free? 72(t)(C) provides that an exception to the imposition of the 10% penalty under 72(t)(1) includes: "(C)Payments to alternate payees pursuant to qualified domestic relations orders: Any distribution to an alternate payee pursuant to a qualified domestic relations order (within the meaning of section 414(p)(1))." So one would surmise that the 10% penalty will not apply to the Roth distribution. I guess she could take a loan or make a hardship withdrawals if she is disabled, or she can just wait until age 59-1/2. What do you think? Any creative ideas? David

The court awarded my client a percentage share of her ex-husband's 401(k) account. It turns out that abut 90% of his 401(k) are in a Roth funds. She plans to take a taxable distribution since she needs the money now. If the distribution was coming from a traditional pre-tax 401(k) it would be income taxable to her and the Plan would withhold 20% for Federal taxes, and there would be no 10% premature withdrawal penalty under IRC 72(t)(2)(C). Since it's a Roth account, will she have to pay income taxes on a direct distribution, or will it be tax free? 72(t)(C) provides that an exception to the imposition of the 10% penalty under 72(t)(1) includes: "(C)Payments to alternate payees pursuant to qualified domestic relations orders: Any distribution to an alternate payee pursuant to a qualified domestic relations order (within the meaning of section 414(p)(1))." So one would surmise that the 10% penalty will not apply to the Roth distribution. I guess she could take a loan or make a hardship withdrawals if she is disabled, or she can just wait until age 59-1/2. What do you think? Any creative ideas? David

I am assuming you are talking about a defined contribution plan. I am assuming that the divorce is final, and that the QDRO was signed by the Court. and that a certified copy of the QDRO and was sent to the Plan Administrator, and that the Plan Administrator approved the QDRO, and that no appeal of the Divorce Decree was filed by either party. If I am incorrect in any of these assumption, let me know. A timeline is essential. Some states provide that the court will lose jurisdiction to modify (including a recission) a QDRO within a certain number of days after the entry of the QDRO (e.g. after the time to revise a Court Order has expired), or after the expiration of the applicable statute of limitation that can be many years down the road. Res judicata will apply. Some states will not permit a modification (including a rescission) of a QDRO under any circumstance if it changes the terms of the underlying Divorce Decree. Res judicata will apply. Some states will permit a modification (including a rescission) of a QDRO even though it changes the terms of the underlying Divorce Decree but only if the Court has reserved jurisdiction in the Divorce Decree to do so. Some states view a QDRO as the source of the obligation to transfer pension and retirement assets from one party to the other. Other states view a QDRO as a tool, like an attachment or a garnishment, to enforce the Divorce Decree. The ability to modify it or rescind it will differ depending how they view it. I found this online: "The question of whether retirement savings plans, such as IRAs, 401(k)s, and pensions, impact Medicaid eligibility is complicated. There are no federally set rules on these plans and Medicaid eligibility; each state sets its own rules. Adding to the complexity are other variables, such as the type of retirement savings plan, payout status, payout amount, one’s other income and assets, and marital status. "The bad news is that it is likely an applicant’s retirement savings plan will be considered by Medicaid as either income or an asset when determining eligibility for long-term care. The good news is that most candidates can still gain Medicaid eligibility and preserve some or all of their savings for a spouse or another family member. "In states that consider a Medicaid applicant’s retirement savings account as an asset, it will count against Medicaid’s asset limit for eligibility. Some states will exempt one’s retirement account if it is in payout status, and therefore generating income. However, the payments are considered as income and will count against Medicaid’s income limit for eligibility. While this does not automatically mean the candidate will be Medicaid-ineligible, this is common because Medicaid’s income and asset limits are so low." You need to check with the eligibility requirements for Medicaid in the jurisdiction in which she resides. It may not be as onerous as she imagines. It may be that she can elect to take her 401(k) as an annuity. The payments will count as income, but the total amount will not impact Medicaid eligibility. And it may only impact long term care eligibility. See - https://www.medicaidplanningassistance.org/medicaid-eligibility-401k-ira/#:~:text=California%2C Florida%2C Georgia%2C and,payments are counted as income. Good luck, DSG

Many plans have a list of beneficiaries in none is named, such as: (i) Surviving spouse, (ii) Children in equal shares, (iii) Surviving parents in equal shares, (iv) Estate. If the plan does not such a list then the money goes to the estate of the decedent and the probate court will determine who gets it. This is not an uncommon event. It might be prudent to check and see if the employee was divorced and whether or not a QDRO was issued, or whether the Judgment of Divorce or the Judgment of Divorce incorporation a Marital Settlement Agreement exists. Under the Pension Protection Act of 2006 a post mortem QDRO can be entered. David

If you don't have a QDRO in hand then you have no right or obligation to investigate whether or not some person out there is entitled to retirement or survivor annuity benefits. See the attached DoL Advisory Opinions. BUT If the Participant retired during the marriage he would have been required by the REA - 29 USC Section 1055(a)(d) that you can find at https://www.law.cornell.edu/uscode/text/29/1055#:~:text=§ 1055-,29 U.S. Code § 1055 - Requirement of joint and,annuity and preretirement survivor annuity&text=in the case of a vested participant who dies before,surviving spouse of such participant. [and see attached from the Internal Revenue Manual Section 4.72.9.3.5 and see ERISA § 205(a)-(d), and see 26 CFR § 1.401(a)-20 - answer 25(b)(3). If an employee retires while still married, the spouse will receive a survivor annuity (unless waived by the spouse) and no subsequent divorce will undo that mandatory election regardless of whether or not the parties or the judge have addressed it in the divorce proceeding.] to name his then spouse to receive a QJSA and a QPSA, and that election would survive a later divorce, unless the spouse affirmatively waived such benefits. If you have the documents he submitted at the time of retirement you should have the answer to his problem if his divorce occurred after that date. The spouse is covered for survivor annuity benefits per 29 USC 1055 and not by reason of a QDRO that is preempted by Federal law, BUT only for a share of his survivor benefits and but not for a share of his retirement annuity benefits during his lifetime. That would require a QDRO. The fact that he did not tell you he was divorced makes no difference if the QJSA and QPSA were locked in at his retirement. Let's hope you have his retirement application that would show a waiver, but even if you don't, you have the law on your side. David Advisory Opinion 1992-17A - duty of Plan Admin.pdf Advisory Opinion 1999-13A _ U.S - Sham Divorces.pdf DoL Advisory Opinion 1990-46A.pdf IRS Manual section 4.92.9.3.5.pdf

Memo to Wacko in Winnebago: One of my favorite cases is Brown v. Continental Airlines, Inc., 647 F. 3d 221 (5th Cir., 2011) - https://scholar.google.com/scholar_case?case=4019345202025914766&q=brown+v.+continental+airlines&hl=en&as_sdt=20000003 Continental alleged that a number of pilots and their spouses obtained "sham" divorces for the purpose of obtaining lump sum pension distributions from the Continental Pilots Retirement Plan that they otherwise could not have received without the pilots' separating from their employment with Continental. The pilots were allegedly acting out of concern about the financial stability of Continental and the fear that the Plan might be turned over to the PBGC and that their retirement benefits would be substantially reduced. By getting divorced, the pilots were able to obtain QDROs from state courts that assigned 100% (or, in one instance, 90%) of the pilots' pension benefits to their respective former spouses. The Plan provides that, upon divorce, if the pilot is at least 50 years old (as all the pilots in this case were), a former spouse to whom pension benefits are assigned can elect to receive those benefits in a lump sum even though the pilot continues to work at Continental. The former spouses presented the QDROs to Continental and requested payment of lump-sum pension benefits. After the former spouses received the benefits, the couples remarried. Continental sought to obtain restitution under ERISA Section 502(a)(3). The Court of Appeals noted that ERISA § 206(d)(3) limits the QDRO qualification determination to whether the state court decree calls for benefit payments outside the terms of the Plan. It rejected Continental’s expanded reading of § 206, concluding that plan administrators may not question the good faith intent of Participants submitting QDROs for qualification. Beyond that, 26 USC 414(p)(1)(B) provides: “(B) Domestic relations order - The term “domestic relations order” means any judgment, decree, or order (including approval of a property settlement agreement) which— “(i) relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and (ii) is made pursuant to a State domestic relations law (including a community property law)." I don't believe any Code provision requires that the "marital property rights" requiring the transfer of pension or retirement benefits must relate only to those benefits themselves. I have had cases where one party dissipated assets and the only way to make the other party whole was to give her a larger share of the pension and retirement benefits. I had another case where the Participant repeatedly perjured himself on the stand and the judge punished him by giving my client 60% of his GM pension. I have had people trade off pension and retirement benefit for equity in the house. And in Maryland and I think in most states the trial judge has the power to award as much or as little as he/she deems the be "equitable". There is no presumption of 50/50. There is no requirement that the court recognize and adjust for the Participant's premarital and therefore non-marital portion of his/her benefits. On top of all of this, the fact that pension and retirement benefits can be garnished/attached via a QDRO for alimony or child support is more evidence that the parties can agree how much of these benefits will be transferred from the Participant to the Alternate Payee and how that amount will be computed. Sometimes the terminal date for the accrual of benefits if the date of the parties separation, or it can be the date of the divorce, or it can be any arbitrary date the parties agree upon. The Brown v. Continental case and the DoL Advisory opinions are evidence that this is a "nunya" situation. Nuya business Mr. Administrator. The Plan Administrator has a fiduciary duty toward both parties, and part of that means not interfering with their deal. For more reading in the importance of the Plan Administrator not looking behind that they have in front of them. Read 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 and PaineWebber v. East, 363 Md. 408, 768 A.2d 1029 (2001) - https://scholar.google.com/scholar_case?case=14624602948014812254&q=painewebber+v.+east&hl=en&as_sdt=4,83,96,109,124,146,159,290,291,292,308,309,312,313,353,354,355,371,372,375,376 David

If you are the Plan Administrator and you have "qualified" the DRO, thereby making it a QDRO, then you should do nothing until you receive an Amended DRO from the Court. It is not your job as Plan Administrator to look behind the QDRO. See attached DoL Advisory Opinions. And it is not prudent or legal to take any actions not authorized by the QDRO based on the agreement of parties unless that agreement is set forth in an Amended QDRO. It might be possible for the court to order that the payments, if they are in pay status, be deposited into the Registry of the Court, or if your attorney is concerned he/she can file an Interpleader action asking the Court to rule on the dispute. But you haven't set forth the nature of the dispute or the possible dispute. It is not clear if you desire is to vacate the QDRO or to amend it. If you are going to vacate it, there is no reason to wait. Submit an appropriate Order by Consent ASAP and be done with it. Why would you want to "lock in" the benefit for any period of time. The QDRO is already "locked in" because you have Qualified it. The Plan Administrator needs to follow the terms of the QDRO until ordered otherwise. You need to be more detailed about the status of the case and the timeline. Has the divorce judgment been entered? Was the QDRO entered after the divorce judgment was entered? Had the Participant retired prior to the divorce, in which event ERISA would have required a QJSA and a QPSA and at the happening of the divorce that election would have been locked it and the validity of a separate interest allocation would be in doubt? If the Participant is in pay status and the Alternate Payee is not, or vice versa, who benefits are you freezing? If you plan to submit a shared interest QDRO, will that even be possible if the separate interest QDRO is in place or in place and in pay status to one or both of the parties. For what reason should it "never have been filed"? What exactly is the problem? You need to be specific. Is sounds like the Participant has buyer's remorse. And you need to be careful of matters that can occur unexpectedly and cause problems. Like the death of the Participant, or the Participant retiring and entering pay status if he not already in pay status, or the Participant terminating his employment but deferring retirement, or the Participant remarrying and then retiring at a time after the separate interest QDRO is vacated but before a new QDRO is submitted and approved, in which sequence of events the Participant's new spouse will vest in the survivor annuity benefit and the former spouse will be SOL. More details needed. Keep in mind that in all of these cases you have to deal with Federal laws and regulations, state law and regulations that are normally preempted by Federal law, the written or dictated and transcribed agreement of the parties if there is one, the divorce judgment or the divorce judgment incorporating and/or not merging the agreement of the parties, the QDRO and the Plan documents. Assume nothing. David Advisory Opinion 1992-17A - duty of Plan Admin.pdf Advisory Opinion 1999-13A _ U.S - Sham Divorces.pdf

Assuming that you have a right to look behind the factual basis for his loan request, check out "bridge loan". This is a loan that a borrower may take to enable him to close the transaction prior to the time he gets permanent financing or in this case a 401(k) loan.

If he is not working then he can start his SS benefits at any age from 62 up to age 70. The younger he starts the less he receives since his life expectancy will be longer at age 62. The older he starts the more he receives since his life expectancy will be shorter at age 70. Theoretically, the present value of his benefits are the same no matter what age he starts; but PV computations are speculative based on uncertain COLA rates, discount rates, actual life expectancy and other factors. You can get hit my a bus tomorrow morning and PV computations will be of zero value. A personal story will illustrate the issue. Based on the year of my birth I could begin to receive full unreduced benefits at age 65 and 10 months. Or I could start at age 65. At 65 the payments would be $1900/month. At 65 and 10 months the payments would be $2017/month - and extra $117/month. If I started at 65 and 10 months I would lose $19,000 in benefits. The additional $117 a month from waiting until 65 and 10 months would take 162 months to recoup - 13.5 years. So I started at 65. So in addition to looking at how much a spouse will receive, think about how much will be lost if you wait. Most people who address this issue spend their time calculation how much more you will receive at age 70 without mentioning how much you will lose by waiting to age 70. Do the math.

Thank you Peter. I'm glad I don't have your job. By comparison my job is easy. I confirm that the Plan is ERISA qualified (or qualified under some other Federal, state, county, municipal or international organization law) and that benefits can be transferred to the Alternate Payee. I get my hands on the Plan's SPD and their "QDRO package" per ERISA Section 206(d)(3)(G)(ii). And I do my drafting. I live in an "I can" or "I can't" environment and don't often have to get into the statutory weeds to resolve a can/can't dilemma. None of my clients are ever going to pay the cost of legal research let alone a court battle. Having said that, there was that one time where my client was accused, but not convicted, of stealing from her employer, Bell Atlantic. They decided that it would be okay to recoup their losses by refusing to distribute her Cash Balance plan benefits to her. We won the case, our client got her money (including market increases if I remember correctly) and Bell Atlantic paid about $35,000 in legal fees to me and my co-counsel, Wendy Widmann. See attached Memo. Thanks and best regards, David Bowersox v. Bell Atlantic.pdf

Question for Peter Gulia: I should probably know this. A QJSA and QPSA are mandated with respect to a defined benefit plan. As I correct that these provisions of 29 U.S. Code § 1055(a) are not mandatory with respect to an ESOP, but may be adopted by the Plan documents? In the 36 years I have been preparing QDROs I have never came across this issue. I found this language at Pub. 6301 attached. "The law provides a special rule in the case of a money purchase ESOP. The portion of a participant’s accrued benefit under such a plan that is subject to section 409(h) (“put options”) is treated as though it were provided under a defined contribution plan not subject to section 412. Thus, if the requirements in a), b), and c), above, are met, the 409(h) part of the participant’s benefit in the money purchase ESOP is exempt from the survivor annuity requirements. 401(a)(11) 1.401(a)-20 Q&A 3" So now I'm guessing that there are different types of ESOP plans and different defaults and rules for each as they may pertain to survivor annuity elections, and options for adopting language in the Plan that can change the default - or not. Any words of wisdom would be appreciated. David p6391 (5).pdf

See the complaint in the case of Knight v. IBM filed in the US District Court for the Southern District of New York. See also attached a comment by Cohen Milstein. Without going into detail, this class action representing IBM employees alleges that the IBM had been using out of date life expectancy tables that resulted in artificially lower benefit payouts. The Complaint mentioned the fact that ERISA requires a joint and survivor annuity to be the “actuarial equivalent” of the single life annuity. ERISA §§ 205(d)(1)(B), (d)(2)(A)(ii), 29 U.S.C. §§ 1055(d)(1)(B), (d)(2)(A)(ii). Furthermore, that for married participants, the default form of pension payment is a joint and survivor annuity or “JSA.” A joint and survivor annuity provides the participant a payment stream for his own life, and then, if he has a surviving spouse when he dies, for the life of his spouse. ERISA § 205(a)-(d), 29 U.S.C. § 1055(a)-(d). The survivor annuity is expressed as a percentage of the benefit paid during the participant’s life; typically, the surviving spouse will receive 50%, 75%, or 100% of the benefit the participant received. For clarity, a single life annuity is a retirement annuity (a "pension") that is paid to the Participant for the life of the Participant and terminates on the Participant's death. A joint and survivor annuity, (a "Qualified Joint and Survivor Annuity - "QJSA"), is structured so that the share due to the Participant is shared with the Alternate Payee during the concurrent joint lives of the parties, and, on the death of the Participant prior to the death of the Alternate Payee, the survivor annuity benefit will continue to be paid to the Alternate Payee for his/her life. It is important to understand that the survivor annuity is not free. The amount of the retirement annuity will be reduced to pay the cost of the survivor annuity. The amount of the reduction is normally computed by actuaries at the time of retirement who will look at the ages and relative ages or the parties and their life expectancies to determine how much of a reduction in the retirement annuity will be sufficient to pay the survivor annuity following the death of the Participant. [Some plans, like FERS and CSRS, use a flat percentage deduction from the retirement annuity to fund the survivor annuity. Actuaries are not involved.] so.... The point is that both a single life annuity and a QJSA annuity are funded by the same pile of dollars reduced to present value. The Plan puts a certain amount of dollars in a theoretical fund and that amount can be used to pay either a single life annuity or a joint and survivor annuity. They are payment options from the same source of funding. If there is no survivor annuity election then the Participant will receive $X as a retirement annuity and the marital portion of that retirement annuity can be allocated between the Participant and the Alternate Payee as agreed or as directed by the trial court using a QDRO. If a survivor annuity for the Alternate Payee is intended, then the Participant will receive a retirement annuity of $x less the cost of the survivor annuity, and the marital portion of this reduced retirement annuity can be allocated between the Participant and the Alternate Payee as agreed or as directed by the trial court using a QDRO. If the Participant predeceases the Alternate Payee, the Alternate Payee will receive a survivor annuity equal to the option elected - 25%, 33%, 50%, 66%, 75% or 100% of the amount of the retirement annuity. Not all plans offer 25%, 33%, or 66%. All plans must offer 50% and can offer more. Note that the greater the percentage of the survivor annuity the greater the reduction in the retirement annuity to fund the survivor annuity. So there is no free lunch. Some planning is possible here. For example, if the Participant is old and or in bad health and the Alternate Payee is substantially younger and in good health, it may make sense to elect a 100% joint and survivor annuity. If the opposite is true, than a 50% or less survivor annuity may make more sense. The ultimate point is that the actuarial equivalence cannot be determined until the parties have elected or the court has awarded a QJSA in the amount of 33%, 50%, 66%, 75% or 100%. At that point the retirement annuity is reduced to pay the cost of the QJSA and you will have your actuarial equivalence. It can be any combination of retirement annuity + QJSA = the same present value = actuarial equivalence. Chris says that the Plan designates 50% as the QJSA, but that's not the Plan's choice, The Court or the parties have the option for 50% or 75% or 100%. In all cases the equivalence will be the same. Percentage of QJSA up = retirement annuity down. It's not for the Plan to designate only one option if they offer multiple options. David Knight v. IBM Attorney Comment.pdf Knight v. IBM - Complaint.pdf

I assume that you intend to modify the plan document and not just ignore the spousal notice or consent requirement. If you have actual knowledge that the Participant has been recently divorced or that a QDROis in the works, you would be advised not to make any loans or distributions until the rights of the prospective Alternate Payee have been resolved. DSG

DOL, EBSA, Field Assistance Bulletin 2003-3 (attached) provides: Qualified Domestic Relations Orders (QDROs) and Qualified Medical Child Support Order (QMCSOs) Determinations. "ERISA does not, in our view, preclude the allocation of reasonable expenses attendant to QDRO or QMCSO determinations to the account of the participant or beneficiary seeking the determination." "It should be noted that, pursuant to 29 CFR § 2520.102-3(l), [https://www.law.cornell.edu/cfr/text/29/2520.102-3] plans are required to include in the Summary Plan Description a summary of any provisions that may result in the imposition of a fee or charge on a participant or beneficiary, or the individual account thereof, the payment of which is a condition to the receipt of benefits under the plan. In addition, 2520.102-3(l) provides that Summary Plan Descriptions must include a statement identifying the circumstances that may result in the ". . . offset, [or] reduction . . . of any benefits that a participant or beneficiary might otherwise reasonably expect the plan to provide on the basis of the description of benefits . . . "These requirements are intended to ensure that participants and beneficiaries are apprised of fees and charges that may affect their benefit entitlements." 29 CFR §2520.102-3(l) also provides: "Plans also shall include a summary of any provisions that may result in the imposition of a fee or charge on a participant or beneficiary, or on an individual account thereof, the payment of which is a condition to the receipt of benefits under the plan. The foregoing summaries shall be disclosed in accordance with the requirements under 29 CFR 2520.102-2(b).” Note that if review and processing fees are not set forth in the SPD, the Plan cannot charge them. Note that the above does not apply to defined benefit plans. Note that most Plan Procedures allow the QDRO to set forth the allocation of such fees between the parties, but provide for a default if no such allocation is specified. DSG QDRO - Fees Charged to Review QDRO - Field Assistance Bulletin 2003-03.pdf

It is rare to see a Plan Administrator or a TPA prepare Plan Procedures required by ERISA Section 206(d)(3)(G)(ii) or Model Orders that do not address a "Valuation Date" and whether or not gains and losses are to be included from the Valuation date to: (i) the date of a rollover to the Alternate Payee's IRA or other eligible retirement account; or (ii) the date a taxable distribution is made to the Alternate Payee; or, (iii) the date that the Alternate Payee's share is segregated to an account for his/her benefit. Here is my Memo that might be helpful. It is noteworthy that many Plans will not or cannot compute gains and losses. IRA custodians rarely do. The law that can be read to require them to do so is ERISA § 206(d)(3)(C)(ii) that clearly allows a DRO to specify the method of determining the Alternate Payee's share. "(ii)the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined," I have engaged in pretty heated battles Fidelity who try to require that the amount to be transferred must only be a hard percentage or a hard dollar amount, neither of which will be adjusted for gains and losses. It was almost embarrassing to have to cite the above ERISA section to them. It is also noteworthy that not all plans will value their portfolios and the Participant's share thereof on a daily basis. Many do so monthly, quarterly, or in a few cases only on December 31st. The parties select valuation dates at the date of separation, or the date of divorce, or the date of actual distribution, or at other random dates. It often depends on State law. In Maryland, for example, the court values marital property for equitable distribution purposes on the date of the final divorce merits hearing. In Virginia, the accumulation of marital property stops on the date of separation. So as you might expect, in Maryland the Valuation Date will be the date of entry of the Judgment of Absolute Divorce, and in Virginia the Valuation Date will be the date of separation. DSG Gains, Losses, Investment Exp - 09-29-2022.pdf

Thoughts about what? Whether or not to fire the Plan Administrator? How to collect the loan balance due?

The TAM cited by Dare Johnson is an outlier. Read https://www.alvarezandmarsal.com/insights/warning-employee-loans-could-have-adverse-tax-consequences#:~:text=In Technical Advice Memorandum (TAM,the loan%2C for tax purposes. See the attached Memo that I prepared on this topic a few years ago. 1099-C is the proper instrument to forgive the loan from year to year. David Empl Forgivable Loans.pdf

"If the participant isn't electing to withhold anything now (understanding that withholding isn't mandatory on a hardship), can the amount taken still be grossed up (BY WHOM? THE PLAN ADMINISTRATOR? ARE YOU TRYING TO SAVE THE PARTICIPANT FROM HIS OWN FOLLY? ARE YOU PLANNING TO BUMP UP THE AMOUNT OF HIS WITHDRAWAL AND SEND 20% AS WITHHOLDING TO THE IRS? WITHOUT TELLING HIM? IN VIOLATION OF HIS ELECTION NOT TO GROSS UP THE DISTRIBUTION?) to include an amount to cover taxes to be paid later? I see discussions here on how to actually figure out how much is an appropriate amount to gross up -- we're (WHO IS "WE"? DO YOU MEAN "YOU"?) going with a simple 20% of the amount requested, for better or worse. But I don't see anything that says that if you're not electing to have the taxes withheld now, that takes away the ability to have the distribution increased for the taxes that will be due, so long as you're still under the amount that you have available under the terms of the plan." (THE AMOUNT OF THE WITHDRAWAL IS TAXABLE INCOME TO THE PARTICIPANT AND IT WILL BE PAYABLE TO THE IRS [LET'S NOT FORGET THE STATE.] WHETHER OR NOT ALL OR PART OF THE TAX WAS WITHHELD. I DON'T UNDERSTAND THE QUESTION?)