Thornton

I've been drafting QDROs for 6 years and haven't seen this situation before. I'm told by the attorney who retained me to draft the QDRO that the Participant/Petitioner's address cannot be in the QDRO due to a restraining order or something against the Alternate Payee/Respondent. It can be excluded from the body of QDRO but listed in the Appendix to the QDRO . The Appendix is not filed with the court but included when the QDRO is sent to the plan administrator for processing. A GAL has been appointed by the court to represent the minor children. 1. If the attorney does want not the Participant's address even in the Appendix, does anyone have an opinion on whether or not the plan administrator will qualify the DRO without the Participant's address anywhere? 2. Does the GAL need to sign the QDRO? Thanks.

H and W divorce. Both are under 59 1/2. H is awarded $11,000 from W's IRA. He does not intend to roll it over. An Order Transferring IRA Incident to Divorce (similar to a QDRO) is drafted, signed by H and W and approved by the court. If this were a distribution from a qualified plan under a QDRO, H would include the distribution in his income but would not be subject to the 10% early withdrawal penalty. Question: Is H subject to the penalty tax here?

I have been retained to review a Qualifying Court Order drafted by another attorney involving an active member of the Army National Guard. The issue involves the formula used to divide the future pension. Where is a good source for this information? Thanks

H & W were divorced on July 16, 2019. W was awarded 1/2 of Hs cash balance pension and 401(k) plans. I was retained by the attorneys to draft the DROs. I did so and submitted them to the plan administrator for preapproval on October 9, 2019. Minor changes were requested, made and resubmitted. Preapproval letters were issued on November 25 and December 9. The court approved the QDROs and they were submitted to the PA for processing. The PA now wants another minor change in both QDROs. Normally, wouldn't be a problem, except for resubmitting them to the court, which PA requires. I just learned that the AP died on November 25, so her signature is not available for the revised QDROs. My thought is to made the requested change but keep the QDROs otherwise as drafted. The only form modification would be to have the personal representative of the AP's estate sign in the place of the AP. Does this sound like a reasonable solution?

Thank you David! This helps! In this case both plans are DC and the DROs were filed for pre-approval prior to the Alternate Payee's death. While revisions were required by the PA, during which AP died, a hold was placed on the participant's accounts. We should be ok. Based on your comments, I will suggest to the attorneys that they not use her signature.

I have a situation that I have not encounted before. A couple's divorce was final on July 16, 2019. I am retained in August by the attorneys to draft two QDROs, one for a cash balance pension plan and one for a 401(k) plan. All parties approve draft QDROs by late September and they are submitted for pre-approval to the plan sponsor on October 9. The plan administrator acknowledges receipt and freezes the participant's accounts, but wants several changes to both QDROs which are made and both are resubmitted on October 22. On November 27, the plan administrator pre-approves the 401(k) but wants one revision to the pension QDRO, which it did not mention in the first revision request. I'm used to this, so I made the minor revision and resubmitted the pension QDRO today. Meanwhile, the Alternate Payee dies on November 26th! Both QDROs have language covering this contingency. Because of the alternate payee's health, signature pages were signed the by both the participant and alternate payee when they approved the drafts in September, but before submission to the plan administrator for pre-approval. Since pre-approval is not complete, the QDROs have not been submitted to the court yet. Of course, the alternate payee does not have a beneficiary form filed with the plan sponsor. 1. Are the signature pages valid? I would prefer to revise the pages to reflect the personal representive of estate's signature. I guess it's up to the attorneys since they are filing them, but thought I'd ask. 2. Should the plan sponsor be made aware of the death of the alternate payee before the court signed QDROs are submitted for payment? 3. Does anyone have advice/thought in this situation? Thanks.

FMSINC, thanks for the detailed information! Peter, thanks for the reminder.

A couple married on September 7, 2007 and divorced on July 16, 2019. The plan is a cash balance plan with Koch Industries (Georgia Pacific). The Judgment of Divorce awards the Alternate payee 50% of the Participant’s vested account balance under the plan earned during the marraige. I drafted the QDRO according. The plan administrator denied preapproval of the QDRO, stating that a single valuation date is required. To be fair, the QDRO quidelines state as much. However, since this a common J of D provision, I have used the above language successly with other plan administrators. I have researched alternative formulas like: Value on date of divorce x months a participant while married/total months a participant x 50% = award to Alternate Payee. Does anyone have a better idea, especially if you have worked with Koch Industries?

A married participant in a DB plan retired and elected a Joint & 75% Survivor annuity. Several years into retirement, he and his wife divorce. I was retained to draft the QDRO, which split the participant's monthly payment 50/50. If the participant dies first, the alternate payee receives the survivor amount of 75%. If the alternate payee dies first, the participant reverts to his full benefit. Pretty simple. The plan administrator supplied the language and of course pre-approved the QDRO. The participant won't sign it, saying it is unfair. The plan administator now says that the J&S can be removed. The participant and the alternate payee would each receive a higher monthly benefit, which sounds like a life annuity. If the participant dies first, the alternate payee continues to receive the same amount for her lifetime. If the alternate payee dies first, the benefit reverts back to the participant, which doesn't sound like a life annuity. I recognize that none of this is my business and I should revise the order as directed, but I'm curious. 1) I has been my understanding that an elected DB benefit can rarely be changed once in payment status, especially by QDRO. Am I missing something? 2) Does my rough description of the single life payment for the alternated payee but an increase for the participant if the alternate payee dies first make sense? I'm not an actuary or anything, so thought I'd ask. Thanks.

Thanks QDROphile and Larry! I'll go ahead and use the format of the Judgment of Divorce.

I've been drafting QDROs in Wisconsin for several years. I am now working on my first Minnesota QDRO (Hennepin County). I have the Judgment of Divorce, property settlemt, etc. Does anyone know where I can get a model Minnesota QDRO, if there is such a thing. Otherwise, I'll use my Wisconsin template and revise as necessary. Thanks.

Thanks for for your guidance!

I've been drafting QDROs for several years for family law attorneys. I am working on my first Multi-Employer Plan (Carpenters' Union) QDRO. This is my first QDRO with the participant in payment status. The monthly benefit is $3,610.64 (disability) for the lifetime of the Participant with a 75% survivor benefit to the surviving spouse. The Marital Settlement Agreement provides that the monthly benefit is to divided equally. Since the annuity election can rarely be changed, how much does the Alternate Payee receive: 1. $3,610.64/2 = $1,805.32? 2. 50% of the gross monthly benefit as if the participant had elected a Single Life Annuity? This would provide the AP any possible cost of living increases, etc., but could change the amount of the payment to something other than $1,805.32. 3. If 2 is chosen, what protections can be provided for the AP if the participant predeceases her? 4. Single employer plans are qualified under IRC 401. Is this also true for Multi-Employer plans? The sample QDRO from the union doesn't really address this? Any comments are appreciated!

A new client of mine worked many years for the FAA and was covered by FERS. Under the property settlement, the ex spouse receives 1/3 of the monthly benefit under the pension program and 1/2 of the thrift savings plan. Are two COAPs required or can both benefits be included in one COAP? Thanks!

A couple of questions that I probably know the answers to, but thought I run them past other experts: 1) Has anyone seen a QDRO that assigns 100% of the participant's accunt balance (401(k)/ps plan) to the alternate payee? 2) I am an attorney who limits my practice to drafting QDROs for divorce attorneys. I always request a copy of the Judgment of Divorce or at least the section containing the retirement plan division. I have been retained to draft a QDRO that provides for a different division than the Judgment of Divorce provides for. I told the attorney the Judgment needs to be amended to comply with the QDRO. He refuses, saying amendment is not necessary, and that I should just draft the QDRO as told. I believe that the Judgment must be amended to agree with the QDRO, and told him so. Am I being unreasonable?