fmsinc

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

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.