Crazy QDRO situation

[Guest riogrande]

Sorry for the length of this post but I think this group will find my case interesting and unusual.

My ex wife and I were divorced Nov 21, 2000. Date of signed final order.

Per the MSA I was to transfer $97,500 from my TIAA CREF accounts to former wife.

I hired an actuary who contacted TIAA CREF and my Univerisity to draft the DRO and for approval by both.

Draft was approved and sent to court where it was signed June 28, 2001.

Singed QDRO was sent to both my attorney and opposing counsel, neither of who forwarded to TIAA CREF.

Oct 2001 my attorney realizes QDRO has not been sent and obtains certified copy from court and sends to TIAA CREF. TIAA CREF responds to me and former wife that they will set up new account for former wife with funds transferred on Nov 21, 2000.

Former wife's counsel faxes letter to TIAA CREF not to process. No appeal or other legal action was taken to stop QDRO processing. In Feb 2002 counsel for former wife produces AMENDED QDRO in court and has Judge sign with no hearing etc. We try everything in legal means to block AMENDED QDRO even appeal but it fails. (This is in Dade County FL)

TIAA CREF informs me in Feb 2002 that there are insufficent funds in the accounts listed in the AMENDED QDRO so that an amount less than $97,500 will be transferred. In Oct 2002 after appelate court ruling sending QDRO back to circuit court former wife sends Amended QDRO and appelate ruling to TIAA CREF for processing. My attorney informs former wife that Amended QDRO will transfer less money than original QDRO. She accepts Amended QDRO anyway which transfers approximately $90,800. Transfers are completed in Dec 2002.

Now my former wife and her new attorney have been litigating the shortage of the QDRO and other issues of now monetary value. The Judge in my case has always been the same Judge who has consistently ruled against me no matter what the facts are. Now the Judge says I am responsible for my former wifes post divorce attorney fees. However, at this time there is no order for a QDRO.

The only asset I have is my TIAA CREF account. I remaried in Dec 2001 and my current spouse is the alternate payee and beneficiary. The Amended QDRO removed my former spouse as alternate payee and beneficiary when TIAA CREF recieved the QDRO and processed it. It specifically states that all untransferred assets are now the sole property of the participant and all transferred assest are the sole property of the alternate payee.

Unknown to me and my attorney, a CPA firm in Coral Gables, FL has sent a fax to TIAA CREF as a Draft QDRO. TIAA CREF did not notify me of this contact and I became aware when TIAA CREF sent a response to the CPA firm saying the QDRO was OK. This is despite the fact that in the QDRO it states that the money is for Legal Fees and Other Fees and Interest and Income Taxes. Furthermore, there is no cashable portion of my TIAA CREF accounts as that was completely depleted by the AMENDED QDRO. This QDRO names my former spouse as the Alternate Payee and Beneficiary. (How can that be? It seems to me the executed AMENDED QDRO terminated those possiblilities.)

I am dealing with some very low level characters here and I want to know if there are any criminal charges I can file and whether I should go to Federal Court to get a blocking order should this QDRO be signed by this Judge who I believe will sign anything??? What other legal or other actions can I take? I have already reminded TIAA CREF and the University they are not to speak with anyone regarding my personal information or retirement benefits.

[Mike Preston]

OK, this post has a bit more meat than the other one, but the result is essentially the same. You need to engage competent ERISA/family law counsel in Florida. Divorces are messy by nature and there is no way that you can put enough facts into a post so that somebody here can give you an unqualified opinion. You can only get competent advice from an attorney in your state. In general, I will repeat what I said in the other post: family law judges have wide discretion to make "the whole shebang" fair. That sometimes means some very unorthodox "solutions". If the only asset you have is this plan and the court finds that you, for one reason or another, owe your ex-spouse money, it is not beyond comprehension that they will take steps to get at those funds. But, as I said, you need an attorney.

[Guest riogrande]

OK, this post has a bit more meat than the other one, but the result is essentially the same. You need to engage competent ERISA/family law counsel in Florida. Divorces are messy by nature and there is no way that you can put enough facts into a post so that somebody here can give you an unqualified opinion. You can only get competent advice from an attorney in your state. In general, I will repeat what I said in the other post: family law judges have wide discretion to make "the whole shebang" fair. That sometimes means some very unorthodox "solutions". If the only asset you have is this plan and the court finds that you, for one reason or another, owe your ex-spouse money, it is not beyond comprehension that they will take steps to get at those funds. But, as I said, you need an attorney.

Thanks. However, I moved from Florida to New Mexico over 3 years ago. Also, its impossible for my attorney to have a fair hearing with this particular judge.

[masteff]

But, as I said, you need an attorney.

Also, its impossible for my attorney to have a fair hearing with this particular judge.

Then maybe you need a different attorney.

[QDROphile]

And, if true, your attorney should tell you so.

[Guest mjb]

A judge cannot fashion an "unorthodox solution" that violates a participant's rights. If judges can do whatever they want there would be no need to enforce all the rules and regulations that govern participant's rights under ERISA.

There are several reasons why the judge's order are unenforceable as a matter of law and common sense:

1. There are no benefits available to pay the legal fees-the only assets are non cashable annuity benefits. QDRO cannot order benefits to be paid in form not available under the plan.

2. Legal fees are not permitted to be paid under a QDRO. Plan benefits cannot be garnished to pay legal fees.

3. Maritial separation agreement which was part of divorce provided that each party was to pay own legal fees. A MSA is a binding agreement between the parties.

4. Under court precedent only current spouse can be designated as surviving spouse. AP has no right to survivor benefits after employee remarries any more than court could modify a QDRO to designate AP as surviving spouse after employee in pay status dies.

You need to consult counsel in NM to see if a FL court would have jurisdiction over you in a QDRO matter now that you no longer reside in FL. The preceeding discussion assumes that your employer is subject to ERISA.

[Mike Preston]

1. I'll believe it when I see it. Since that took place over 4 years ago, while I can't be sure, my guess is that there are now some funds there that can be "taken."

2. QDRO's pay benefits to alternate payees. If the judge thinks that doing so is equitable, it won't be overturned on appeal. You obviously have not dealt with many family law judges.

3. An MSA is not binding on the court. It is binding on the individuals. If the individuals don't live up to the MSA the court is free to fashion a modification.

4. I don't disagree with what you say, but I don't see the relevance. If there is cash to pay a benefit that the Judge finds is equitable to order, you are going to have to find an abuse of discretion to overturn it, most likely. And that only happens if there is some rule of law that is violated. Rules of law are dependent upon family law rules in the states with jurisdiction.

[Guest mjb]

Before you comment you should research what you are talking about.

1. Some TIAA/CREF annuities (called Retirement annuities) do not have any lump sum value- benefits are paid only as annuities. There are many IRS agents who have found this out when they tried to collect tax liens from the retirement benefits.

2. You are ignoring the role of the Plan administrator who can reject a DRO. "Congress committed all decisions concerning the qualified status of a DRO to the sole discretion of the plan administrator." AT&T Managemennt Pension Plan v. Tucker, 902 FSupp 1168, 1176. The determination of whether a QDRO can be enforced to pay benefits to the AP is determined by the PA, not the judge. Judges cannot overrule th PA.

3. Maybe things are diffierent on the West Coast but every MSA or property settlement I have reviewed is incorporated in the divorce decree as an enforceable part of the divorce. Otherwise why would the parties negotiate such a settlement?

4. State court judges do not have the authority award benefits to an AP if the award violates the rights of other persons under of ERISA or the terms of the plan. A state court judge cannot order a plan to pay legal fees to the AP's attorneys even if there is cash available. AT & T Mangagement Plan v. Tucker cited above. Similiarly Fed cts have rejected a amendment of DROS by state family ct judges to add survivor benefits for an AP by after the employee dies, Samoroo v. Samoroo 3rd circuit, Sanzo v. NYLA-ILA Pension Trust, DNJ 2005, as well as numerious cases that have rejected the AP's filing of a st. ct approved DRO for survivor benefits after the employee has remarried or commenced benefits, Hopkins, et. al. The abuse of discretion standard only applies to violations of state law and state courts cannot fashion remedies that violate ERISA.

The solution for the participant is is to remove the case to Fed ct (Preferably in NM) for a determination of the validity of the DRO issued by the FL judge where he will have a neutral judge who is knowledgeable in ERISA. What needs to be answered is where is the Plan admin in this case?

[Guest riogrande]

Thanks for the feedback. I agree that I need to get the case into a Federal Court in NM.

My divorce was final in Nov 2000 and I have done everything required and more. South Florida is a pit of corruption and disreputible people and the legal system is no different. As a former native Floridian I moved in large part to escape the Circus that Florida has become.

The Family Court Judge in my case does not read anything which is why she is constantly signing orders that contradict previous orders without cancelation or voiding the previous orders.

I have notifed TIAA CREF that I will file suit if they violate their fudiciary responsiblity to me as I have signed no relases for them to communicate with anyone regarding my personal and financial information.

The executed QDRO very clearly terminated my former spouses rights to any "non-tranferrred funds".

Florida courts have become a free for all which are damaging many people because they do not follow their own statutes.

[Guest zora]

Do you know if this is an ERISA plan? Many universities are associated with churches and are not considered to be private entities subject to ERISA.

[Guest riogrande]

Do you know if this is an ERISA plan? Many universities are associated with churches and are not considered to be private entities subject to ERISA.

I worked for a state university and the university of miami which contributed to my TIAA CREF plan. My new employer also contributes to TIAA CREF and I now work for a non-profit research institute.

[Guest riogrande]

Do you know if this is an ERISA plan? Many universities are associated with churches and are not considered to be private entities subject to ERISA.

Also, when I worked for the State University I had the option of being in the State of Florida Employees Pension Plan or a private plan with TIAA CREF and a couple of other similar entitites. My understanding is that all of my plans fall under ERISA regulations.

[Mike Preston]

mjb, your responses to my comments are so off base as to be laughable. Please don't tell me to research my comments before you have done so. Where do you think the original $90k came from if the plan he is participating in only has these unbreakable annuities of which you speak? Why would his benefit structure change dramatically? What evidence do you have that it did?

For some very strange reason you think I've said something other than what I've said. Go back and respond to the specifics of what I spoke about or keep your off-base rhetoric out of here.

I am not talking about converting rights that have been appropriately assigned to another, nor am I talking about specifically saying that the judge will order the payment of monies directly to somebody other than the alternate payee (such as to an attorney for attorney's fees). Get a grip.

And you must have absolutely no experience in family court to say that a judge is precluded from modifying a MSA after the fact, unilaterally, if one side has breached their responsibilities under the existing MSA and doesn't bother coming to court.

What in heaven's name is going on?

This guy needs competent advice, not arm waving by somebody who is making him believe that his ex-spouse has no standing or, even if she has standing, that the benefits are unreachable. You have no evidence of either.

[Guest mjb]

mjb, your responses to my comments are so off base as to be laughable. Please don't tell me to research my comments before you have done so. Where do you think the original $90k came from if the plan he is participating in only has these unbreakable annuities of which you speak? Why would his benefit structure change dramatically? What evidence do you have that it did?

MP: There are different products available from T/C. Where the employer contributes under the plan the products are known as RAs or Group RAs. RAs are individual annuites which can be divided pursuant to a QDRO and a separate annuity issued to the AP but the benefits are only paid as an annuity. GRAs can provide for a lump sum upon retirement if the plan permits. Supplemental Retirement Annuities (SRAs) are a distinct type of annuity which permits only pre tax contributions by the employee and can be liquidated and paid to an AP or rolled over pursuant to a QDRO because the benfits can be paid in a lump sum at any time. A plan participant can have account balances under two or more types of T/C annuities while working for an employer which can result in all of the liquid assets available under a cashable SRA being paid out under a QDRO and the only remaining assets subject to the QDRO being held in an illiquid annuity such as an RA or GRA. This is no different than an an employee who participates in both a 401k plan (SRA) and a DB plan (RA or GRA) with no lump sum option.

MP: I will ignore the rest of your post as it reminds me of a recent talk show rant for which no response on a professional level is possible.

[Mike Preston]

You could, if you wish, actually adress the issues raised, rather than again bring up irrelevancies. I do not question that there is a portion of his benefits which are not divisible. I question why you believe that the portion which was obviously reachable in 2002, has no increased value within which a court can reach, even though we are now 4+ years later. Ibid. Ibid. Ibid.

[Guest mjb]

The only asset I have is my TIAA CREF account. I remaried in Dec 2001 and my current spouse is the alternate payee and beneficiary. The Amended QDRO removed my former spouse as alternate payee and beneficiary when TIAA CREF recieved the QDRO and processed it. It specifically states that all untransferred assets are now the sole property of the participant and all transferred assest are the sole property of the alternate payee.

Unknown to me and my attorney, a CPA firm in Coral Gables, FL has sent a fax to TIAA CREF as a Draft QDRO. TIAA CREF did not notify me of this contact and I became aware when TIAA CREF sent a response to the CPA firm saying the QDRO was OK. This is despite the fact that in the QDRO it states that the money is for Legal Fees and Other Fees and Interest and Income Taxes. Furthermore, there is no cashable portion of my TIAA CREF accounts as that was completely depleted by the AMENDED QDRO.

MP: In order to answer your last post could you please answer the following Q:

Q1. Did you read the above facts posted by riogrande?

Q2. What part of "there is no cashable portion of my TIAA-CREF accounts as that was depleted by the AMENDED QDRO" dont you understand?

Q3 Do you agree that if riogrande's cashable accounts of $90,800 were zeroed out in 2002 and paid to the AP pursuant the to amended QDRO the value of the cashable accounts in 2007 will still be zero.

[Mike Preston]

The only asset I have is my TIAA CREF account. I remaried in Dec 2001 and my current spouse is the alternate payee and beneficiary. The Amended QDRO removed my former spouse as alternate payee and beneficiary when TIAA CREF recieved the QDRO and processed it. It specifically states that all untransferred assets are now the sole property of the participant and all transferred assest are the sole property of the alternate payee.

Unknown to me and my attorney, a CPA firm in Coral Gables, FL has sent a fax to TIAA CREF as a Draft QDRO. TIAA CREF did not notify me of this contact and I became aware when TIAA CREF sent a response to the CPA firm saying the QDRO was OK. This is despite the fact that in the QDRO it states that the money is for Legal Fees and Other Fees and Interest and Income Taxes. Furthermore, there is no cashable portion of my TIAA CREF accounts as that was completely depleted by the AMENDED QDRO.

MP: In order to answer your last post could you please answer the following Q:

Q1. Did you read the above facts posted by riogrande?

Sure. Did you read my comment on the issue that you are now raising?

http://benefitslink.com/boards/index.php?s...st&p=149173

Q2. What part of "there is no cashable portion of my TIAA-CREF accounts as that was depleted by the AMENDED QDRO" dont you understand?

Not one whit. What part of my response, expressing disbelief, did you choose to ignore? Oh, 100%? So be it.

Q3 Do you agree that if riogrande's cashable accounts of $90,800 were zeroed out in 2002 and paid to the AP pursuant the to amended QDRO the value of the cashable accounts in 2007 will still be zero.

Absolutely not. While obviously the zeroed out portion can't come back on its own, with new benefits I find it surprising that you think it will necessarily be zero. Maybe it is. But on this one, I'm from Missouri. Show me. Let me make this clear for you: I do not believe the participant when he indicates that the cashable portion, depleted by the amended QDRO to zero dollars over four years ago, remains with zero dollars. Why do you?

[Guest riogrande]

You could, if you wish, actually adress the issues raised, rather than again bring up irrelevancies. I do not question that there is a portion of his benefits which are not divisible. I question why you believe that the portion which was obviously reachable in 2002, has no increased value within which a court can reach, even though we are now 4+ years later. Ibid. Ibid. Ibid.

For Several Reason they are not reachable.

1) The QDRO states it is a permanent Order.

2) Upon reciept of the QDRO it states my former wife loses all beneficiary status permanently.

3) The QDRO states that all funds not transferred to the alternate payee are the property of the participant and the alternate payee has no rights to those funds. Just as it states that the funds transferred are the property of the alternate payee and the participant has no rights to those funds.

[J Simmons]

That the QDRO issued in 2002 specifies it is a permanent order does not mean that it cannot be changed or added to, merely that when entered it was not intended to be temporary or to expire at any certain time.

Recently, regulations were issued on March 7, 2007 that specify, among other things, that the entry of one QDRO does not prevent the entry of another one later that changes the proportions awarded to the AP and retained by the P. In fact, a later one could even be entered after you are in pay status or you have died. The subsequent QDRO might also name your ex-spouse to be the 'surviving spouse' of your retained benefits. 29 CFR sec 2530.206.

TIAA-CREF's plan administrator is not to look beyond the face of a domestic relations order issued by a state court in determining whether that order meets the requirement to be a QDRO, and thus honored by TIAA-CREF. In reviewing the order, the plan administrator does not relitigate the property division and other issues between the divorcing P and AP. The 'equities' of the situation is therefore a battle to be fought out in the family law court in Dade County, not with TIAA-CREF. That family law court might subsume some of the attorney fees issues into a subsequent QDRO that orders more of your benefits at TIAA-CREF be awarded to the AP.

On the other hand, if TIAA-CREF is providing information to the AP (and attorney for the AP) about the benefits you retained per the 2002 QDRO before a subsequent domestic relations order is signed by Dade County family law court and presented to TIAA-CREF, you have a legitimate beef with the plan administrator of TIAA-CREF over your privacy. Further, TIAA-CREF should be notifying you whenever it receives an order, or proposed draft order, that purports to affect your benefits.

[Guest mjb]

MP: It appears that you are confusing the annuity benefits provided to participants through T/C products as if they were an account based system for a participant available under a 401k plan, e.g, the employee has various investments under the plan with one set of distribution options for all investments, instead of a contract based system in which each T/C contract for which contributions are invested by the employer and/or employee have different distribution rights. There are separate contracts for TIAA (fixed annuites) and CREF (variable annuities). Regardless of the number of plans maintained by an employer, an employee who participates in the T/C system usually has at least 4 contracts with different distribution rights, i.e., TIAA for employer contributions, CREF for employer contributions, TIAA for employee pre tax contributions and CREF for pre tax employee contributions. This means that a participant would have casahble funds invested in TIAA and CREF SRA contracts for pretax employee contributions made under a 403(b) plan and non cashable funds held in TIAA and CREF accounts under separate RA or GRA contracts which hold employer contributions. Additional contracts for employer contributions are usually issued if the employee participates in both an employer funded 403(b) as well as a qualified plan. It is not unusual for a participant who works for an employer to have more than 4 T/C contracts with different distribution rights depending on the terms of the plan and the T/C contract.

Funds held in RA or GRAs are subject to restrictions on cashouts by T/C ranging from no lump sum withdrawals (TIAA and CREF RAs) to cash out in 10 annual installments upon retirement (TIAA GRA) or immediate withdrawals in a lump sum upon retirement (CREF GRA). (GRA lum sum options can be eliminated by the plan sponsor.) Withdrawal of employee contributions to both TIAA and CREF SRAs are allowed in a lump sum. Alternatively an employee could make pre tax employee contributions to an RA which provides only annuity benefits without a lump sum option instead of an SRA. There are numerious other rules which can affect the available payment options (e.g., lump sum distributions are permitted from RAs upon the death of the participant) which are too complex to discuss in this forum.

As for your comment on why I believe that the zeroed out benefit remains at zero today the plausable answer is that the amounts paid to the AP in 2002 were distributed from a cashable contract, e.g. SRA, which reduced its value to 0 where it remains today while the participant retained additional benefits under the divorce decreee in separate noncashable contract(s) (RA or GRA) which increased in value from 2002 to 2007. Again see Rios post of 6/17 @ 2:02 where he said that the cashable portion of his T/C account was completely depleted by the amended QDRO in 2002. (If there is value in a cashable T/C contract in 2007 subject to the QDRO it would be reachable provided the order meets the requirements of applicable law.) Your confusion on cashablility under T/C contracts not unusual. IRA agents have the same problem understanding why tax liens cannot be enforced against RAs and GRAs to force withdrawals to pay taxes.

You should to review riograndes last post for additional reasons under which his T/C benefits are not reachable.

Q1 I thought you are from the west coast (CA?), not MO.

Q2 why do you refeuse to accept Rio's statement that the cashable portion of his T/Caccount was completelty depleted?

[Mike Preston]

If there is value in a cashable T/C contract in 2007 subject to the QDRO it would be reachable provided the order meets the requirements of applicable law.

Hence, we are, strangely, in agreement.

In answer to your other questions, because it is something that I believe is easy for a layperson to assume based on the facts presented through the date of the amended QDRO in 2002 and it further pre-supposes that the benefits earned subsequent to that date were in different benefit structures than the benefits earned prior to that date and we were presented with no rationale which would support such a conclusion.

I remain unconvinced. And I find it impossible to believe that you would accept such a statement from a lay-person/client in your practice without some sort of confirmation.

[Mike Preston]

riogrande, how about you settle my little argument with mjb? Define 100% of your current benefits and contrast them to the accounts pre-2002. Convince us, one way or the other, that the accounts which held the roughly $90,000 which were reachable in 2002 are in fact zero today. Please don't rely on their unreachability being contingent upon the language of the amended QDRO in 2002. That order can be modified by a court of competent jurisdiction and, if so modified, will be acted upon by TIAA/CREF. If there are funds in an account that would have been reachable by the amended QDRO issued in 2002 then there are funds in an account that are reachable by a new QDRO issued today.

[Guest mjb]

riogrande, how about you settle my little argument with mjb? Define 100% of your current benefits and contrast them to the accounts pre-2002. Convince us, one way or the other, that the accounts which held the roughly $90,000 which were reachable in 2002 are in fact zero today. Please don't rely on their unreachability being contingent upon the language of the amended QDRO in 2002. That order can be modified by a court of competent jurisdiction and, if so modified, will be acted upon by TIAA/CREF. If there are funds in an account that would have been reachable by the amended QDRO issued in 2002 then there are funds in an account that are reachable by a new QDRO issued today.

You need to be more specific: what was the amount of his interest in each T/c contract that he had in 2001 on the date of divorce and how much were paid to the ex in 2002 from each contract. Asking him to define 100% of his current benefits in 2007 is incorrect b/c additional contributions could have been made to his annuities by him or his employer after his divorce which would not be reachable by the ex b/c they were not part of the assets acquired during the marriage. Only the increase in the fmv assets which he had earned as of the date of divorce in 2001 could be considered part of the assets which can be reached by the ex in 2007 and even that would be subject to state law. I have reviewed many st. ct orders to pay benefits to an AP which were unenforceable under applicable state law so I find it laughable that non lawyers think they can inform plan participants that final orders can be modified by a subsequent order w/out knowing what the law in the jurisiction actually permits. I dont know why you think that the benefits will be paid in a contested situation and not interpleaded.

[Mike Preston]

Asking him to define 100% of his current benefits in 2007 is incorrect b/c additional contributions could have been made to his annuities by him or his employer after his divorce which would not be reachable by the ex b/c they were not part of the assets acquired during the marriage. Only the increase in the fmv assets which he had earned as of the date of divorce in 2001 could be considered part of the assets which can be reached by the ex in 2007 and even that would be subject to state law. I have reviewed many st. ct orders to pay benefits to an AP which were unenforceable under applicable state law so I find it laughable that non lawyers think they can inform plan participants that final orders can be modified by a subsequent order w/out knowing what the law in the jurisiction actually permits. I dont know why you think that the benefits will be paid in a contested situation and not interpleaded.

I don't quarrel with the concept that contesting may be in his best interest. But I do quarrel with your interpretation of what is reachable and what is not. Maybe it works differently where you are, but out here the family law courts are almost never overturned because state law gives them such wide lattitude. Let's go down the hypothetical route:

1) Reachable assets in Contract 1 as of amended QDRO date are completely turned over to AP.

2) Unreachable assets in Contract 2 are not touched (that is, not divided pursuant to a deferred interest stipulation) due to court's inaccurate assessment of amount available in Contract 1. That is, the court orders $98k to be paid but only $90k is available in Contract 1

3) 4 years later the AP walks back into court and says that the $98k award ordered by the court was not provided as required.

4) AP asks court to provide an additional QDRO dipping into Contract 1 of $8,000 plus interest, which has now grown to over $20,000, and therefore the monies are available.

5) Court so orders.

You are trying to say that since the monies put into Contract 1 that survive today were put in after the marital estate was ended, it is not reachable by the court. That is faulty logic and I'll give you a simple example as to why: deferred jurisdiction.

Many a case is settled with deferred jurisdiction. I sometimes refer to this as the "coattails" methodology. The court orders the AP to receive the community interest based on a formula, to be applied at commencement of benefits. Let's say that formula is number of months married divided by number of months in the plan. As of the initial date of divorce, the benefit might be $1,000 month and the fraction close to 100%. But 20 years go by before the benefit is paid and the benefit increases to $5,000/month and the fraction declines to 50%. The AP gets a benefit of $2,500/month. Using your "logic" since the benefit was only $1,000 upon divorce, the maximum that the court can award would be $1,000/month because anything else clearly "is not part of the assets acquired during the marriage", which is a phrase that I don't find anywhere in any text I have read dealing with QDRO's. That might be a fine piece of logic to deal with things like cars and so forth, but it doesn't have a thing to do with pension benefits.

The fact is that the court can determine a proper portion of a pension benefit (i.e,, community interest) and can satisfy that benefit from any portion of the benefits that exist.

You can interplead to your heart's content, but would get nowhere.

[Guest riogrande]

My MSA stated that I was to transfer $97,500 to my former wife from my pension plan.

I hired someone who drafed the original DRO which did such and transferred the amount on the date of the final order (November 21, 2000).

The order was signed by the Judge and sent to TIAA CREF.

TIAA CREF was going to excute the order until opposing counsel sent a letter telling them not to do so.

The was no court order not to excute the Signed QDRO so TIAA CREF had no legal basis for not executing the Original QDRO.

Opposing Counsel LIED, falsely claim the Original QDRO did not tranfer sufficient funds.

Opposing Counsel gave the Judge the Amended QDRO without showing it to my attorney and the Judge Signed the Order without a hearing. Upon receipt of the Amended QDRO TIAA CREF wrote to me and informed me there where INSUFFICIENT FUNDS IN THE ACCOUNTS TO EXECUTED THE AMENDED QDRO.

However the original QDRO would transfer an amount in excess of $100,000 at that time. The Amended QDRO always transferred an amount less than $97,500 while the Original QDRO always transferred an amount of $97,500 or greater. When the Amended QDRO was excuted it transferred an amount of $90,383 which did not meet the requriements of the ORDER. As I was told by the actuary that drafted the Original QDRO it is TIAA CREF fault for processing it if it did not transfer the stated amount. Futhermore, the values where calculated on the date of transfer (Dec 2002) two years after the final order. This is not allowed as the property after the date of the final order is no longer marital (something MP seems to not understand).

My former wife agreed to accept the lesser amount. She could have petition to the court to have the QDRO amended but not after agreeing to accept the lesser amount. That's the only way TIAA CREF could have processed it. The two CREF stock accounts that were transferred from were zeroed out because of the low stock price. Of course, they are still zero today and the Amended QDRO took funds that were non-marital at the time.

As I stated earlier. If what is happening to me is allowed. Any former spouse could try to reinitiate litigation against a former ex spouse. Get nothing in acutual assests but then the attorney could take $10,000's or even a $100,000 from the former spouses retirment funds. In Florida and most other states Attorney Fees are a debt the the collection of such fees is conducted as a collection of a debt.

[Mike Preston]

Oh, I understand the issue and I'm truly sorry that the way things are in most states is inconsistent with the way you would like them to be. But the fact is that in most states your pension benefits are considered to be "reachable" whether they were initially credited to you before, during or after your marriage. I know that isn't what you want to hear and yes, this allows judges to fashion what they refer to as "equitable" settlements with pension monies that you would prefer be beyond their reach.

Whether you like it or not and whether mjb likes it or not, there are lots of cases out there that say one can not segregate pension benefits earned while in the employ of a specific employer by time period of "while married" from the time period "while not married". That is why many states call for formulas like "time while married and participating in plan divided by total time in plan" to determine community interest. Perhaps the most cited case here in California that highlights this issue is In re: Marriage of Lehman. You can read up on it by searching in google. There are literally dozens of places on the internet that cite that case.

mjb is correct, however, that if the Court attempts to do things which aren't structured "just right" they may find that their efforts fail and can be reversed on appeal.

Hence, you really need to get an attorney involved that can sort through all of this on your behalf, as the situation is far too complex for good advice to flow from here. The specifics of Florida and New Mexico law may have an impact on what is allowed that only an attorney familiar with the case law in both jurisdictions can sift through.

If you want to read something on the internet that somewhat deals with this issue, see the following, which you can find at (you may need to sign in or create an account to see the whole thing):

http://caselaw.lp.findlaw.com/scripts/getc...114&invol=1

This is a North Dakota case that affirms an out of state QDRO (from California) and allows precisely what you are complaining about: the modification of a QDRO by a court of competent jurisdiction that takes into account post-marriage increases in pension benefits. They do so based on an application of the "time rule".

California courts recognize the first years of employment during a marriage must be given just as much weight as the years after separation, and a post-separation increase in a pension's value from continued employment is not entirely separate property, because the pension's value ordinarily is dependent upon the total number of years of employment. Lehman , 955 P.2d at 456 (holding a nonemployee spouse who holds a community property interest in an employee spouse's retirement benefits owns a community property interest in the latter's retirement benefits as enhanced by early retirement incentives); In re Marriage of Judd , 137 Cal.Rptr. 318, 321 (Cal.Ct.App. 1977) (rejecting employee spouse's argument years of service after separation possessed a significantly greater value than years during marriage because employee spouse's subsequent salary increases did not alter or diminish nonemployee spouse's community interest in retirement benefits).

Good luck to you.

[Belgarath]

Mike - I've been following this post with some interest, as I have very little knowledge of the legal minutiae regarding divorce settlements/QDRO's. I do have a question which is perhaps unanswerable, but I'll give it a shot: In these situations where the formula approach you mention is used, would this apply primarily to DB plans, and not to DC? It would seem that years of service would generally not be an issue for a typical DC plan. On the other hand, it sounds like the courts can fashion any kind of modification that they decide is "equitable," subject to certain restrictions.

Thanks.

[Mike Preston]

Of course the time rule is used more frequently in dealing with DB plans than with DC plans. I expect that this issue will become more front and center over time as DC plans replace DB plans as the primary vehicle for retirement savings. The alternative to the time rule is referred to as tracing here in California.

I think there is little question but that 401(k) salary deferrals are almost universally treated as being subject to tracing.

Once one invokes employer contributions/benefits, however, tracing can certainly give way to the time rule.

[Guest mjb]

Oh, I understand the issue and I'm truly sorry that the way things are in most states is inconsistent with the way you would like them to be. But the fact is that in most states your pension benefits are considered to be "reachable" whether they were initially credited to you before, during or after your marriage. I know that isn't what you want to hear and yes, this allows judges to fashion what they refer to as "equitable" settlements with pension monies that you would prefer be beyond their reach.

Whether you like it or not and whether mjb likes it or not, there are lots of cases out there that say one can not segregate pension benefits earned while in the employ of a specific employer by time period of "while married" from the time period "while not married". That is why many states call for formulas like "time while married and participating in plan divided by total time in plan" to determine community interest. Perhaps the most cited case here in California that highlights this issue is In re: Marriage of Lehman. You can read up on it by searching in google. There are literally dozens of places on the internet that cite that case.

mjb is correct, however, that if the Court attempts to do things which aren't structured "just right" they may find that their efforts fail and can be reversed on appeal.

http://caselaw.lp.findlaw.com/scripts/getc...114&invol=1

Good luck to you.

MP:

Before you make incorrect statements about pension benefits subject to divison in a divorce you need to check the law of jurisdiction that applies to the case as well as the rules of the plan.

1. Under Fla law valuation of plan assets subject to divorce does not include contributions made after the original judgment of disolution. Boyett v. Boyett, 703 So. 2d 451 (1997). The retirement benefits that you refer to be included after the marriage ends are a portion of the DB retirement benefits in those states that allow a coverture formula, not DC plan contributions. I dont know of any non community proprety law state that would include contributions and attributable earnings made to a dc plan after the marriage ends to be includible as an asset reachable by the ex spouse because it is not acquired during the marriage.

2. As I previously noted you need to check the rules for division of T/C annuties to determine what rights are transferred to the ex spouse (AP). The T/C website on divorce (what to do in a divorce) states that T/C will only divide an annuity contract and issue a contract to the AP with rights identical to the rights of the employee in the amount ordered by the ct. After transfer T/C will transfer the amount to an IRA of the AP if a lump sum distribution is permitted. However T/C will not transfer funds directly from the employee's contract to an IRA owned by the AP. If the employee's contract has restrictions on lump sum distributions the APs contract will contain similar restrictions. Finally under T/C rules for dividing pensions the formula is limited to contributions made during the marriage and investment return on those contributions. If the value of the T/C contracts subject to a FLA divorce decree are reduced to 0 because of the transfer to the AP, the court cannot order a subsequent transfer of assets to the AP from contracts or assets that were accumulated after the marriage ends to satisfy a deficiency in the award to the AP. If the value of the contracts given to the AP are provided in a non cashable contract T/C will not pay a lump sum distribution.

3. Judges cannot fashon remedies to divide pension benefits in ways they which they consider equitable if it violates state law. In Board of Trustees v. Langford, 833 So2d 230 (2002), the Fla ct of appeals held that a judge could not fashion an equitable remedy by requiring that 50% of a participant's govt pension be paid to the AP because FLa law prohibits the garnishment/attachment of govt pension benefits.

[Mike Preston]

I don't disagree with many of your conclusions. The facts of this case will determine how much, if any, of the benefits remaining are subject to a coverture determination. Such a determination can give rise to precisely the circumstance I described and with which you obviously agree, based on the above.

There is no question that the OP needs competent counsel who can advocate on his behalf.

I'd be very interested in the precise facts and the eventual conclusion.

[Guest mjb]

Why do you think that there is a coverture determinaton in FL? According to Troyan Inc, FL is one of three states (w/ PA and TX) that does not recoginize a coverture fraction. That is the literal meaning of boyett that contributions made after the judgement of dissoluton are not plan assets subject to divorce.

[Mike Preston]

But he now lives in a different state. For all we know, the ex-spouse does, too. I'm not forcing Florida to recognize coverture. I'm allowing for the possibility that, once all of the facts are known, the result might be different from what you want it to be based on the facts you know now.