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Who must sign a QDRO (2)


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Nowafreeman..... you wouldn't happen to be a physician would you? Just a guess.

The material provided and the opinions expressed in this post are for general informational purposes only and should not be used or relied upon as the basis for any action or inaction. You should obtain appropriate tax, legal, or other professional advice.

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Guest Pensions in Paradise

Nowafreeman - please let us know when you open your QDRO practice. Because it is obvious from your posts that you are the most knowledgeable and educated person we have ever meant in the field of QDRO's and qualified retirement plans. I bow down before your greatness.

Sorry, I couldn't resist posting the above sarcastic message. And I have to make it clear that it is sarcastic, otherwise Nowafreeman will think I'm being serious.

It is a sad statement that a layman would come to this site, receive free correct advice, and then attack the very people who gave him that free correct advice. All because they told him things he obviously didn't want to hear.

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I wonder if he ( http://benefitslink.com/boards/index.php?showtopic=31012 ) told the DOL that this helpful FAQ is "wrong" too. For example, the DOL thinks that courts issue DROs!!!

A state authority, generally a court, must actually issue a judgment, order, or decree or otherwise formally approve a property settlement agreement before it can be a domestic relations order under ERISA. The mere fact that a property settlement is agreed to and signed by the parties will not, in and of itself, cause the agreement to be a domestic relations order.

http://www.dol.gov/ebsa/faqs/faq_qdro.html

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I guess that it could depend on how you look at it. Orders, per se, is generally reserved for items issued by or from an authority position and which carry the force of law. Neither a party in a divorce nor their lawyer is an "authority". Nor are they in a position to issue anything that can enforce anything.

What the lawyer drafts is therefore a request for an order. This would be similar to what happens frequently in court. 1 party writes what the adjudication is and the judge signs off on it. It is not an Order of Judgement or anything else but a piece of paper until the Judge signs it, then it becomes an Order.

From that perspective, it must be the Court (or a statutory authority) that actually "issues" the DRO.

George D. Burns

Cost Reduction Strategies

Burns and Associates, Inc

www.costreductionstrategies.com(under construction)

www.employeebenefitsstrategies.com(under construction)

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Nowafreeman:

I am coming in this at the tail-end, and I haven't read all the posts, but I'll throw in my 2 cents worth in the hopes that it will help.

1. You need to think of the QDRO as being like a divorce decree, because that is essentially what it is. Just as only the court can issue the divorce decree, only the court (usually) can issue a valid and binding QDRO.

2. A plan administrator can pre-approve a draft QDRO that has been signed by nobody at all, but that pre-approval is contingent on the QDRO being a valid and binding QDRO, meaning, usually, approved and signed by the judge.

3. Just as you can have a divorce decree that is not signed by the wife or her lawyer (because the judge signs it), you can have a QDRO that is not signed by the wife and her lawyer - nonetheless, the judge has to sign it.

4. Both state and federal constitutions usually require due process of law. That means generally the court won't agree to take away someone else's rights unless that someone else is given notice and an opportunity to be heard by the court. Thus, if the ex-wife or her lawyer (on her behalf) doesn't sign the QDRO, you have to give her notice and an opportunity to be heard, e.g., serve her with process and set a hearing before the judge. Otherwise, the judge should not be signing the QDRO (though I've seen them do it, and later get very redfaced for doing it).

The bottom line is that that darned due process requirement prevents you from signing the QDRO yourself, giving it to the plan administrator without anyone else looking at it, and having it be binding.

I hope this helps.

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