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I have a unique client problem. Client (ex-wife) was divorced in 2009. Ex-husband's attorney drafted a QDRO and submitted it to Putnam, the IRA provider, in 2010. Putnam will only give us the QDRO from the file, and states it requested a signature from the ex-spouses on a form letter of instruction in 2010 but ex-husband never signed or did anything further. Client does not recall ever getting a request to sign anything. Further, Putnam told her in 2010 that the amount owed to ex-husband was on "hold" in her account. At the time she thought little of it. Ex-husband died 4 years ago. Client recently tried to access the funds sitting in her account, but Putnam says there is a hold due to the language in the QDRO that says if the AP dies prior to receiving all the funds and does not designate a beneficiary "such amount shall be paid to the Alternate Payee's estate." The client gets statements from Putnam that are titled "IRA Rollover for Mary Smith" -- the funds have never been separated into deceased husband's name. She has no idea if he had an estate, an executor, or anything else. (They had no kids so there was no connection after divorce.) Putnam is telling her the executor can submit forms to request the funds. I am getting nowhere with them. For starters, I don't know why the QDRO would govern since this is an IRA (yes, some IRAs accept QDROs but this provider clearly needed other documents to process the division). I don't see what right they have to hold this money in limbo when the ex-husband never signed what was needed to separate the funds. Anyone have any suggestions about how to proceed?

Hi everyone, I may have made a grievous financial error. Under the terms of my 2013 QDRO, I'm entitled to 100% of the marital share of my ex's pension. His plan's administrator in 2013 told me I'd start getting the pension when my ex retired. (That's my recollection. I'm hoping to find this exchange in writing.) My ex is now age 62. He became eligible to retire at age 60, with 20 years of continuous service. I recently asked him about his intended retirement date. He referred me to his retirement plan administrator, who told me I was eligible to start my benefit "at any time." Have I forfeited either 2 or 9 years of pension payments? Is there any possible way for me to get back payment? My QDRO is below, and the retirement plan is attached. Thanks for helping me think this through! Best, Christie QDRO EXCERPT 8. The parties and the Court intend this Order to constitute a "Qualified Domestic Relations Order" as defined in Section 414(p)(l) of the Internal Revenue Code of 1986, as amended (the "Code”), and Section 206(d)(3)(B) of the Employee Retirement Income Security ^ct of 1974, as amended ("ERISA"). 9. This Order is issued pursuant to Section 20-107.3 of the 1950 Code of Virginia, as amended, which relates to the division of marital property rights between spouses and former spouses in actions for divorce. 10. The Alternate Payee is hereby assigned One Hundred Percent (100%) of the Participant’s total vested account balance under the Plan as of June 1, 2012, plus or minus any earnings and investment gains or losses thereon from June 1, 2012, to the date the Alternate Payee's share is segregated into a separate account in the Alternate Payee's name under the Plan. Such "total vested account balance" shall include all amounts which have accumulated under allof the various accounts and/or subaccounts established and maintained under the Plan on the Participant's behalf. There were no loans against the account as of June 1, 2012. The Alternate Payee's share of the benefits as set forth above shall be allocated on a pro rata basis among all of the accounts and/or investment funds maintained on behalf of the Participant under the Plan. If applicable, the Alternate Payee's share shall be paid from the non-loan assets in the Participant's account(s) on the date that the award is distributed from the Participant's account. 11. As soon as administratively feasible following the determination that this Order as a Qualified Domestic Relations Order, the Alternate Payee’s share as awarded hereunder shall dc segregated and separately maintained in an account established on the Alternate Payee's Behalf and shall additionally be credited with any investment earnings or losses attributable :hereon from the segregation date to the date of total distribution to the Alternate Payee. Notwithstanding the foregoing, the Alternate Payee may elect to receive her benefits in any brm or permissible option under the Plan, including, but not limited to, an immediate lump sum cash payment and/or a direct rollover into an IRA or other qualified retirement account in the Alternate Payee's name. 12. The Alternate Payee shall be eligible to receive payment as soon as administratively feasible following determination that this Order is a Qualified Domestic Relations Order. 13. If the Participant predeceases the Alternate Payee prior to payment of the Alternate Payee's assigned benefits under the Plan, payment to the Alternate Payee shall nonetheless be made under the terms of this Order. If the Alternate Payee dies before full payment to Alternate Payee has been made, the amount unpaid shall be made to the beneficiary designated by the Alternate Payee, or if no beneficiary has been so designated, in accordance 14. No benefits have been previously assigned from the Participant's interest to another alternate payee under another order which has been determined to be a QDRO. 15. This transfer is intended to be a trustee-to-trustee transfer and a non-taxable went to either party; however, if the Alternate Payee elects to receive a direct distribution from he Plan, the Alternate Payee shall be treated as the distributee under 26 U.S.C. Sections 72 and 102 of the Internal Revenue Code on Federal, State and local income tax returns for all retirement benefits and distributions that the Alternate Payee receives due to the benefits assigned herein, and, as such, will be required to pay the appropriate Federal, State, and local income taxes on such distributions. 16. The Alternate Payee shall notify the Plan Administrator in writing of any change in her mailing address as set forth above. 17. If the Plan is terminated, the Alternate Payee shall be entitled to receive the portion of the Participant’s benefits as stipulated herein in accordance with the Plan's termination provisions for participants and beneficiaries. 18. This Order does not require (i) the Plan to provide any type or form of benefit option not otherwise provided under the Plan; (ii) the Plan to provide increased benefits (determined on the basis of actuarial value); or (iii) the payment of any benefits to the Alternate with Plan provisions. Payee which are required to be paid to another alternate payee under another order previously determined to be a Qualified Domestic Relations Order. SPD Ret Plan 2010-Dec.pdf

After searching extensively for an answer online, I apologize in advance if this has been answered here and I wasn't able to locate it. My husband and his ex divorced in 2010. At that time, his ex was awarded the following: - their house (just purchased the year prior for $430,000) - their travel trailer - a used vehicle - 1/2 of his 401k and 1/2 of his PERS retirement accounts (1/2 of the total amount for the time they were married which equates to a large sum). My husband was awarded the following: - he had to sell the house to her for $1.00 (which she paid off in 2013 w/ her new husbands money) - he had to sell the travel trailer to her for $1.00 - he kept their boat that he had to sell (worth under $15,000) - a used vehicle My husband did not have an attorney, she did, paid for by her then boyfriend, now husband. My husband, had he been allowed to keep all of his PERS retirement or most of it, could be retired at this point. When they got divorced, she quit working and hasn't had a full time or even part time job since. My question is this: Can his QDRO be amended, now several years after the divorce has been finalized, to be more fair and equitable? Not only did she get everything listed above, we also found out after having a retirement plan review w/ the administrator, that in the QDRO, her attorney got the court to approve she will be the "spouse" listed when he retires for the 50% joint spousal designation for when he passes away. This designation also means he cannot list myself, his wife, as his 50% joint when he retires. I have my own retirement so while the latter is rather upsetting, I know at least I will have my own retirement to help take care of us when I can retire. However, my husband, quite literally, got screwed. I just want for him to be able to retire. He's worked very hard to reach this point and there should be no reason why he cannot. If anyone has any knowledge of an amendment being done for this reason, I am grateful for any advice you can give. Thank you, BK

My mom had a Pension. A QJSA. She divorced in 2006 and retired in 2011. In her divorce they each retained their own retirement acts. Free and clear from any claims of one another. Through her employer I was her beneficiary on her life ,ad&d, 401k while she was working. She has passed and the company said the beneficiary had been notified without another word spoken to me. Her attorney said that state law (Ohio) predeceases the ex in retirement plans with decree which she thought all would go to me (pension and other acts) I am her only child. Now, her employer said I was not the beneficiary although I showed them paperwork that I was, which was done at her retirement in 2011. EVEN THOUGH THEY NOW SAY, after 5 months of back and forth, that I’m not the beneficiary they want me to send in her death certificate? It does not make any sense. Not only am I dealing with the death of my best friend but her employer is making me feel like crap to be honest. It’s all so very sad and don’t know what to do at this point. Do I just give up? Do I let it go? My mom did not want him to have anything because he had his own and it was always her intentions for me to have her acts. I was also her power of attorney and we had bank acts together. I have taken a full notebook of notes with the conversations I have had with her benefits center and Human Resources. Any insight would be appreciated. Thank you so much! Quinan

Good morning to All, Have you ever had a case where no DRO or QDRO was ever done, yet the participant is demanding a distribution? This is a first for me. One of our clients has a 401(k) plan with a participant who was an unwilling party to his divorce. He says his ex wife "did it all" - hired the lawyer and paid for the divorce. The lawyer made a one paragraph passing reference to the participant's retirement account in the Marital Settlement agreement. "Respondent has a retirement plan with XX Company. Upon distribution of the funds in this plan, Respondent will direct the Plan Administrator to divide the funds equally between the Respondent and the Petitioner, that being 50% to each party, however distributed." That's it. The participant has now terminated employment and claims to be in very dire straits and wants his half of his money RIGHT NOW so he can move in two weeks. He does not know or care how a DRO or a QDRO might eventually be created and he does not particularly care about the rules and regulations we are all trying patiently to explain to him. He has stated that he most certainly is not going to pay any lawyer to do a DRO. His HR department knew enough to call me as the TPA, send me a copy of the marital agreement and question whether he wasn't supposed to have a QDRO before anybody could get paid. I knew enough to alert John Hancock not to process any termination requests from this person and effectively "freeze" his account until we can get this all sorted out. What the participant wants is for the Plan Administrator (the employer/ Trustee, effectively) to liquidate his account, send half to his ex and half to him, tomorrow if at all possible. I do not know of any legal way to accommodate this participant, but I thought I would run it up the flagpole to see if any of you have ever processed a marital division of an account without a QDRO. I have certainly never heard of any such thing. Your advice is appreciated, as always.

Here’s the situation, and I apologize for the length and if I am not getting all the terminology correct as I am not a professional. Mother and Father (from now referred to as M & F) are nearing end of divorce that started years ago. For reasons I’d rather not get into on this forum, I’m helping M. F, age 70, is 100 percent owner of company (4 plan participants including himself) with a defined benefit pension plan that is significantly overfunded. He has the vast majority of pension vested benefits. His vested benefits are 10 times that of employee #2 (longtime 30 year employee), employee #3 (family member), employee #4 (new employee). Despite M working for free for years for the company, she was never an official employee that had any interest in the pension plan. The pension overfunding is so large that it almost equals the amount of F’s current vested benefits. To soak up overfunding, F shifted a couple hundred thousand dollars into employee #3’s plan , which didn’t make much of a dent in overfunding, and since he is only 30 years old, maxed him out on his future expected benefits. F is trying to soak up the rest of the overfunding by having the plan buy term life insurance for employees, and pay the yearly premium. The plan has more than enough overfunding to pay the upfront premiums and pay the yearly premiums for the 30 year duration of the policies. As per law, the death benefit on the policy can be 100 times the monthly salary of the plan participant…so figure that as long as F doesn’t live till 100, his designated beneficiaries get a hefty life insurance payout. If he lives till 100, all the premiums went down the toilet, but hey he won anyways, he lived till 100! As part of divorce settlement, F has agreed to give M half of his vested benefits of pension plan in a QDRO. However there is significant value in the overfunding that F is extracting via life insurance purchases for his choice of beneficiary, and possibly other ways to monetize overfunding in future (such as selling the company or a part of it, and the overfunding)… at bare minimum, overfunding reverts to company at 10 cents on the dollar after excise/income tax. F refuses to make M or her choice of heirs a ½ beneficiary of this life insurance he is purchasing, and refuses to compensate M not even 1 dollar for the value of the overfunding. M is upset because it was through F’s own foolishness that he built up overfunding with their money and effort over the years and now he is getting value out of it and he is refusing to give her anything. Questions are as follows 1) Is there a way to transfer any portion of this Overfunding into M’s QDRO, whether through cash or pension assets? If so what are the legal ways to do it? 2) Can a judge order the pension plan trustee to transfer Overfunding cash or assets into a Wife’s QDRO? 3) Does anyone know of any instances in which Overfunding has been valued in a courtroom setting, and more specifically in marital law? For instance, at the very minimum that overfunding is worth 10 cents on the dollar if all the money reverts to the company and excise/income tax is paid…but F is purchasing life insurance with the overfunding to avoid the excise tax., and there is an expected value to that death benefit his choice of beneficiary is receiving. There also other creative options for monetizing overfunding. .Does anyone have any experience with convincing a judge or negotiating a settlement based on pegging a value to an employee’s interest in his pension plan’s overfunding? 4) Any other suggestions that would help M get value from pension overfunding that F is getting benefits from and may monetize in the future, but refuses to share with M? I have talked to a lawyer in pension funding, who has helped me get this far, but as you can see this is a very niche issue and any fresh perspectives or experience would be much appreciated. Thank you! -Rich

Moderator - My multi-part story/question got deleted from the forum, I guess because I posted it in 3 different forums as it has multiple topics to it....I will keep this question limited to the QDRO issue, so hopefully you can keep this post active in this forum Situation - Pending Divorce, and QDRO has not been filed yet. Husband owns 100 percent of company with 4 employees in pension plan. Husband (age 70) owns about 90 percent of pension plan's total vested benefits. Employee #2 has about 10% of vested benefits. Employee 3&4's shares are nominal. A dollar amount about equal to Husband vested benefits is owned by the pension plan that is not applied towards anyone's share, which is the "overfunding" (this number is substantial, in the 7 figures). Question - Does anyone know if any portion of this "overfunding", whether in cash or pension plan assets can be transferred to the wife via her QDRO? Can it be done either voluntarily by the Pension Plan trustee or by court order? Any help or thoughts are much appreciated -Rich

We have a client with a self-funded health plan. Ex-spouse of employee in Nebraska claims he should still be covered for 6 months (until divorce decree is final for purposes of health plan per Nebraska statute). Question: because the plan is self-funded would ERISA preemption apply? Would the answer be different if the plan was insured? Nebraska Statue Below: 42-372.01. Decree; when final. (1) Except for purposes of appeal as prescribed in section 42-372, for purposes of remarriage as prescribed in subsection (2) of this section, and for purposes of continuation of health insurance coverage as prescribed in subsection (3) of this section, a decree dissolving a marriage becomes final and operative thirty days after the decree is entered or on the date of death of one of the parties to the dissolution, whichever occurs first. If the decree becomes final and operative upon the date of death of one of the parties to the dissolution, the decree shall be treated as if it became final and operative the date it was entered. (2) For purposes of remarriage other than remarriage between the parties, a decree dissolving a marriage becomes final and operative six months after the decree is entered or on the date of death of one of the parties to the dissolution, whichever occurs first. If the decree becomes final and operative upon the date of death of one of the parties to the dissolution, the decree shall be treated as if it became final and operative the date it was entered. (3) For purposes of continuation of health insurance coverage, a decree dissolving a marriage becomes final and operative six months after the decree is entered. (4) A decree dissolving a marriage rendered prior to September 9, 1995, which is not final and operative becomes operative pursuant to the provisions of section 42-372 as such section existed immediately preceding September 9, 1995. Source:Laws 1995, LB 544, § 2; Laws 1997, LB 434, § 1; Laws 2000, LB 921, § 34.

This is a husband and wife plan. The husband is an adopting employer. They’re getting a divorce that will be effective November 2018. The client would like to begin setting up a separate plan for her husband. Can he adopt a plan’s in the same year in which he is already an adopting employer of an existing plan? Or would it best to make the new one effect 1/1/2019?

A client's employee is going through a divorce, and HSA assets were divided. The former spouse set up a new HSA to receive her share of the funds and to make future contributions. The employee is being told by the bank that holds his HSA has said that they will only issue a check to the former spouse directly, and not to the institution where she has set up her new HSA. Does anyone have any specific guidance on this issue? Thanks in advance.

Hello, Client was divorced 5 years ago and the divorce decree awards a portion of Jax police and fire pension as property settlement award. Now, govt ee is retiring and not sure if can use IDO to claim divorcee's share? An attorney said use IDO, but this is property settlement award, not alimony or child support. Pension representative says use IDO. I think need to get order reforming this property settlement as permanent nonmodifiable alimony and use IDO. Can we do that? I am an attorney trying to help my client. But as a newbie attorney (yet old to defined contribution plans), not sure who to ask about what I do with a government plan question? Where can I go to find answer? Or, who can I reach out to for help in this divorce case? Thank you, Susan

I'm really trying to see if this should throw a "Red" flag. The parties enter into a settlement wherein the alternate payee is paid 50% of the payee's Defined Benefit Plan. This is a small business. After the Consent is signed but before the QDRO is entered the Plan is scheduled for termination by the Plan administrator. The "Plan administrator" happens to also be the Participant. Could this affect the alternate payee's 50%? Something just doesn't feel right. I'm afraid someone is trying to pull a fast one. The participant has not retired at this point. They are asking that the QDRO, after initial review include termination language.

An employee is requesting information on the COBRA implications of her entry into a partial dissolution of marriage (or "bifurcated divorce") under California Family Code s. 2337, pursuant to which I believe a ruling on dissolving the formal marital status is made ahead of resolving other (eg financial) issues: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=02001-03000&file=2330-2348 Anyone have any experience as to whether a bifurcated divorce ruling would constitute a "divorce" or "legal separation" (both COBRA qualifying events under our plan)? Bonus points for Calfornia practitioners but any state would be helpful. Note this is a separate question from whether the employee will remain financially responsible for providing health coverage pending total dissolution - the CA Family Code suggests that this could be addressed in the ruling, so the only question in my mind is whether the coverage (if any) should be provided as regular spousal coverage or through COBRA. Thanks for any guidance!