Wacko in Winnebago

The way I read her posts, the PA refuses to even send the Participant an application for benefits until they receive the certified DRO. Ergo, he isn't receiving ANY benefits (even those he would still be entitled to under the DRO's terms) because the PA won't even let him APPLY for them.

Counterpoint: As someone that has knowledge of a participant who had their ERISA-qualified retirement plan (improperly) attached to satisfy a money judgment via a ‘valid QDRO’ which was signed by a family court judge, I can attest as to *exactly* how something like this could happen, especially when the presumption of correctness dissuades the plan administrator from exercising their fiduciary duty with respect to the participant, including ignoring the very advice they received from this board. Biased family courts are a thing. Unethical attorneys are a thing. Fraud is a thing. The presumption of correctness that attaches to a signed court order allows them all to thrive.

That was where my initial question was rooted, but it was my understanding that the plan documents were required to comply with ERISA (and other relevant statutes), such as the requirement of an anti-alienation provision. Thank you to Mr. Gulia for providing the legal authority I hadn't found.

fmsinc, Thanks for your detailed and thorough response. You actually touched upon my unasked question regarding how much investigation a plan administrator might/should/is allowed to perform into the validity of a suspected "sham" or fraudulent QDRO. It seems that the general consensus is somewhere between not much and none, by design. Even the Advisory Opinion you provided tempers its assertion that a plan administrator is not free to ignore evidence calling the order's validity into question by suggesting that the plan defer to the State court or agency that issued the order for guidance.

Sorry, it's a defined contribution (401k) plan.

I read a bunch of cases a while back, but don’t recall seeing this addressed: What is the legal authority that allows an Alternate Payee to immediately take a full disbursement of their portion of the participant's benefit assigned to them through a QDRO, when the participant’s benefit is not in pay status, the participant has not attained the earliest retirement age, and the participant does not otherwise qualify to take a withdrawal from the plan pursuant to the plan's rules.

Thanks for the responses. I'm inclined to believe that it was included to satisfy, as Mr. Gulia suggested, the plan's checklist for qualification. The first item of the plan's Evaluation Guidelines states: "1. Is the order a domestic relations order? Comments. A domestic relations order may take the form of a judgment, decree, or court order (including a court approval of a property settlement agreement) made pursuant to a state domestic relations law (including community property law). It must relate to the provision of child support, alimony, or marital property rights to a spouse (present or former), child, or other dependent of the plan participant. The order must specify the state domestic relations law which permits the division of retirement benefits between the parties."

A proposed QDRO I just received states, "This Order *** is made pursuant to the domestic relations laws of the State of [redacted]." Does this phrasing satisfy the requirement of § 1056(d)(3)(B)(ii)(II) that the domestic relations order "is made pursuant to a State domestic relations law" or does the specific state law/statute need to be identified in the order in order to be qualified by the Plan Administrator?

Mr. Goldberg, Thank you so much for your information and analysis. I've read the case you provided (and several of the 13 following cases that discuss it), and it aligns with my previous research which, as you said, GAL fees are usually determined to be "in the nature of support" and therefore non-dischargeable in bankruptcy. However, it appears to me that there is a difference between the "in the nature of support" standard under the Bankruptcy Code and the "child support" standard under ERISA that has never been addressed. I think I mentioned in one of my previous posts that I haven't been able to find any cases where a GAL has been granted a QDRO to collect their fees. The issue of collecting attorney fees through a QDRO appears to be dependent on the purpose of the underlining litigation, with a more stringent standard towards collections of support arrearages than the "in the nature of support" standard in bankruptcy which encompasses a broad spectrum of custody and health and welfare of the child issues. I agree with you that there are many xxxxxxx, BUT what about yyyyyyy, UNLESS zzzzzzz intersections of the various requirements and definitions, including potential issues with the workarounds you suggested. For example, can the GAL really be considered a "guardian" or "trustee" when they have no legal responsibility for the child? And if they were assigned such a "role" as a workaround, wouldn't that trigger conflict of interest concerns? And wouldn't any state law that might be used to achieve such a result be pre-empted by ERISA? Questions for which I have been unable to find answers, which is why I came to the experts...

Mr. Gulia, I am the non-custodial father, acting pro se. You are correct that the state court does not have personal jurisdiction of the plan, the plan’s administrator, or the plan’s trustee. The guardian ad litem is an attorney and the fees were not incurred to pursue child support. Child support was ordered (payable to the custodial mother) prior to the GAL's appointment by the state court and there has never been an issue with payments. The GAL fees were incurred for an investigation concerning non-compliance with the visitation schedule and protective orders.

I've been embroiled in a parentage case (parents were never married) that repeatedly defies logic. The latest twist is that the minor child's guardian ad litem is now seeking a QDRO to collect their fees from one parent's 401(k) Plan. I have no doubts that the judge will grant/enter/issue the requested QDRO once it is drafted. Is there any case law that supports naming a GAL as an Alternate Payee in a QDRO? I cannot find anything in my research.