Are these valid QDRO provisions?

[mal]

I am having some difficulty in reviewing a DRO sent to

our plan office. It is for a defined benefit plan. The provisions

are as follows.

1. Assigned benefit is 50% of amount earned during

life of the marriage--No problem.

2. Alternate Payee may begin receipt of her benefit

on earliest retirement date of participant and must begin

by time the participant retires--no problem.

3. No mention of the appropriate measuring life--worrisome.

4. AP has preretirement survivorship protection to extent

of her benefit--no problem.

5. If AP predeceases the participant, order provides for

a reversion back to participant--ok.

6. AP has post-retirement survivorship protection to the

extent of her benefit. This is where I am stuck. This

clause and #5 lead me to believe the order is not designed

as a separate interest QDRO.

Ordinarily, under the separate interest approach, the

death of the participant after the AP is in pay status

should have no effect on the administrator and the

AP. Her benefit would be governed by the selection

made at the time she applied for an annuity.

Questions are...

-Assuming this is a stream of payment order, can

an AP begin receipt of a stream of payment

benefit prior to the date the participant goes into

pay status?

-What form of benefit could the AP elect if she wanted to

begin receipt of a benefit under the earliest retirement

age rule? Per #6 above, a "60 month certain" option

or any other benefit above and beyond an annuity

based on her ex-husband's life would seem to violate

the order.

I realize this is confusing, but input from any QDRO

gurus is appreciated.

[QDROphile]

#1 either determines the the order to provide a "separate interest" or presents a problem or you are not telling us everything. I am a simple person. I don't see how you can determine the amount of payment for a "stream of payment " approach from what you have provided, hence your first question.

#2 is consistent with #1 as a "separate interest."

#3 is determined if #1 and #2 lead you to a separate interest.

#5 shows that the term "separate interest" is not such a great term, but I will overlook that point of language. I don't think #5 is incompatible with "separate interest" because "separate interest" has no detailed intrinsic meaning.

#6 needs to tell us more. The alternate payee automatically has post retirement survivorship protection under a "separate interest," but cannot have a form of benefit that is not provided under the plan or that could violate 401(a)(9). The old 401(a) (9) regulations were easy to work with. I am not sure I understand how to apply the current regulations. You are correct that the AP could always legally have the participant be the contingent annuitant.

In general, it is not a good idea for plan to allow a "stream of payment" approach if the order is qualified before the participant starts benefits. If the plan adopted the right policy, it would simply the analysis.