Archives for ERISA QDRO regulations

[Guest Ms Behave]

I am wondering if anyone can direct me to a place where I can review the regulations governing QDRO's from 1985. I have searched this site and also googled. There was only one hit here, but hundreds of thousands on google. I'm hoping someone here can streamline my search. I am specifically looking to discover if there was any language at the time concerning separate versus shared interests in a defined benefit pension.

Thanks very much.

[QDROphile]

No regulation refers to shared interest or separate interest and no regulation ever has. Those terms are artifical and sloppy, and have no effective meaning. They describe only a rough concept. They are useful for discussion purposes, but dangerous when trying to decide legal rights.

[Guest Ms Behave]

No regulation refers to shared interest or separate interest and no regulation ever has. Those terms are artifical and sloppy, and have no effective meaning. They describe only a rough concept. They are useful for discussion purposes, but dangerous when trying to decide legal rights.

Thanks for your reply QDROphile. The QDRO in question is from the infancy of REA and I'm wondering if you know any source for reading the regulations in place at that time (1985).

Thanks again.

[QDROphile]

Why do you care?

[Guest Ms Behave]

Is someone feeling curmudgeonly, or am I misinterpreting this? I want to know because of a matter I'm dealing with in my personal life. Anyway, I'm beginning to feel that there were no formal regulations in place at the time. Can anyone here help me by giving me some direction on where to search for this information? I have put in a request to the librarian in the law library of the Library of Congress. I really would like to locate an answer to this one way or another. Thanks very much.

[J Simmons]

As QDROphile mentioned, 'shared interest' and 'separate interest' are not regulation-defined terms or categories. Those terms have been used by various practitioners to connote different groupings of rights typically specified in a QDRO for an alternate payee to an employee's benefit under a defined benefit plan. Shared interest typically connotes a right awarded in the QDRO to an alternate payee to a specified portion of each future, periodic payment that the employee will possibly receive. If drafted appropriately, the QDRO will likely name the alternate payee as the 'surviving spouse' with respect to the defined benefit (or at least that portion earned during the marriage) for purposes of the survivor annuity rights.

Separate interest, on the other hand, describes an awarded right to a portion of the defined benefit of the employee that has some distinction for payout purposes from the portion of the defined. The alternate payee may commence payout of that 'separate interest' as soon as the employee could have had his or her employment ended on the date of the QDRO award. This is so even though the employee may yet be employed and unable to access the retained portion of his other defined benefit because employment continues. However, even this so-called separate interest keys off of the age of the employee. For example, a defined benefit plan may permit no early payout to a terminated employee before reaching age 55. The alternate payee will have to wait to withdraw the awarded portion until the employee reaches age 55. Also, required minimum distributions as to the separate interest key off of the employee's reaching age 70 1/2.

The use of these two terms is a shorthand reference, but should not create assumptions about the rights actually given the alternate payee just because someone may label or call a QDRO a 'separate interest' or a 'shared interest' one. It is better to compare the actual provisions of the QDRO in question against the statute (IRC 414(p)) as it existed at the time the QDRO was entered.

[Mike Preston]

Ms Behave: I think the goal here is to refine your search a bit because your broad request is a bit difficult to respond to. A couple of random thoughts: The QDRO provisions most of us in the business are familiar with come from Internal Revenue Code Section 414(p). That section of the code has been amended from time to time and I don't have a resource which easily provides what that section looked like in 1985. Further, the IRS has never issued regulations under Section 414(p). They may have issued proposed regulations at one point, but again, I don't have a resource at my fingertips here that would identify the existence of proposed regulations under Section 414(p).

So, your reference to the regulations governing QDRO's may be a bit difficult to establish, if in fact no "Federal" regulations exist.

However, there are a number of other avenues you might look to.

First, the DOL may have issued something. Again, I don't have anything going back that far. I know the DOL (and the PBGC) have issued booklets attempting to inform the public about pensions and divorces, but I believe those booklets were first published after 1985 and, further, they don't really rise to the level of regulations, anyway.

Second, the very name we are dealing with ("QDRO") means an order which is qualified in STATE court. Hence, the particular state you are in has a significant bearing on how a QDRO can be constructed and worded and unless we know that state we are hard pressed to provide any information on what guidance may exist. My understanding is that many states have absolutely nothing in the form of regulations and only an attorney familiar with case law in that state would be able to give you information.

With all that said, there are some issues which are generally treated the same from state to state. If we had a better idea of what the issue is or issues are that you are concerned with, we might be able to provide more information.

However, as I have stated here many times, if you are here it is highly likely that whoever you are dealing with (or one of their representatives) is here, too. So please don't put something on this publicly available website that you think may work to your disadvantage at a later date.

Hope this helps.

[Guest Ms Behave]

Thanks J Simmons and Mike Preston for taking the time to reply. I appreciate your help. I read the code at the Cornell Law School website 414(p). Maybe it was my choice of wording - I meant any writing, code, rule, regulation, law, definition, etc., which guided the writing of a QDRO in 1985. What was published at the time that told the preparers and also the plan administrators how to treat assigned benefits?

Thanks again Mike for the warning about identifying too much info on this site. My hands are kind of tied because I cannot be too specific on this open forum; and so since my questions are general, so are the answers.

[Steelerfan]

Thanks J Simmons and Mike Preston for taking the time to reply. I appreciate your help. I read the code at the Cornell Law School website 414(p). Maybe it was my choice of wording - I meant any writing, code, rule, regulation, law, definition, etc., which guided the writing of a QDRO in 1985. What was published at the time that told the preparers and also the plan administrators how to treat assigned benefits?

Thanks again Mike for the warning about identifying too much info on this site. My hands are kind of tied because I cannot be too specific on this open forum; and so since my questions are general, so are the answers.

What you want to read is the legislative history (committee) reports on the REA. I'm not sure where to get these for free, thomas.gov only goes back to 1995.

[Guest Ms Behave]

Thanks steelerfan, I'll see if I can find anything.

[Steelerfan]

The following is the text of the committe reports for QDROs. It may not have what you're looking for, but it's interesting.

Domestic relations orders. ('84 Retirement Equity Act, , PL 98-397, 8/23/84)

Senate Explanation

Present Law.

Generally, under present law, benefits under a pension, profit-sharing, or stock bonus plan (pension plan) are subject to prohibitions against assignment or alienation (spendthrift provisions). Under present law, 1 certain provisions of ERISA supersede (preempt) state laws relating to pension, etc., plans. A plan that does not include these required spendthrift provisions is not a qualified plan under the Code, and state law permitting such an assignment or alienation is generally preempted by ERISA.

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1

Sec. 514 of ERISA.

Several cases have arisen in which courts have been required to determine whether the ERISA preemption and spendthrift provisions apply to family support obligations ( e.g., alimony, separate maintenance, and child support obligations). In some of these cases, the courts have held that ERISA was not intended to preempt state domestic relations law permitting the attachment of vested benefits for the purpose of meeting these obligations. 2 Some courts have held that the ERISA preemption provision does not prevent application of state law permitting attachment of nonvested benefits for the purpose of meeting family support obligations. 3 There is a divergence of opinion among the courts as to whether ERISA preempts state community property laws insofar as they relate to the rights of a married couple to benefits under a pension, etc., plan. 4

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2

See, e.g., American Telephone and Telegraph Co. v. Merry (1979, CA2) 592 F2d 118 American Telephone and Telegraph Co. v. Merry (1979, CA2) 592 F2d 118, Cody v. Riecker (1979, CA2) 594 F2d 314 Cody v. Riecker (1979, CA2) 594 F2d 314 .

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3

See, e.g., Weir v. Weir (1980) 415 A.2d 638 Weir v. Weir (1980) 415 A.2d 638Kikkert v. Kikkert (1981) 177 NJ Super 471 Kikkert v. Kikkert (1981) 177 NJ Super 471.

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4

In Stone v. Stone (1980, CA9) 632 F2d 740 Stone v. Stone (1980, CA9) 632 F2d 740, the court held that ERISA was not intended to preempt community property laws and that a court order requiring a division of retirement benefits did not violate the anti-assignment provisions. In Francis v. United Technology Corp. (1978, DC CA) 458 F Supp 84 Francis v. United Technology Corp. (1978, DC CA) 458 F Supp 84, however, the court held that ERISA's preemption provision prevents the application of State community property law permitting attachments of plan benefits for family support purposes.

The IRS has ruled that the spendthrift provisions are not violated when a plan trustee complies with a court order requiring the distribution of benefits of a participant in pay status to the participant's spouse or children in order to meet the participant's alimony or child support obligations. 5 The IRS has not taken any position with respect to this issue in cases in which the participant's benefits are not in pay status.

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5

Rev Rul 80-271980-1 CB 85 .

Reasons for Change.

The committee believes that the spendthrift rules should be clarified by creating a limited exception that permits benefits under a pension, etc., plan to be divided under certain circumstances. In order to provide rational rules for plan administrators, the committee believes it is necessary to establish guidelines for determining whether the exception to the spendthrift rules applies. In addition, the committee believes that conforming changes to the ERISA preemption provision are necessary to ensure that only those orders that are excepted from the spendthrift provisions are not preempted by ERISA.

Explanation of Provision.

In general

The bill clarifies the spendthrift provisions by providing new rules for the treatment of certain domestic relations orders. In addition, the bill creates an exception to the ERISA preemption provision with respect to these orders. The bill also provides procedures to be followed by a plan administrator (including the Pension Benefit Guaranty Corporation (PBGC)) and an alternate payee (a child, spouse, former spouse, or other dependent of a participant) with respect to domestic relations orders.

Under the bill, if a domestic relations order requires the distribution of all or a part of a participant's benefits under a qualified plan to an alternate payee, then the creation, recognition, or assignment of the alternate payee's right to the benefits is not considered an assignment or alienation of benefits under the plan if and only if the order is a qualified domestic relations order. Because rights created, recognized, or assigned by a qualified domestic relations order, and benefit payments pursuant to such an order, are specifically permitted under the bill, state law providing for these rights and payments under a qualified domestic relations order will continue to be exempt from Federal preemption under ERISA.

Qualified domestic relations order

Under the bill, the term “qualified domestic relations order” means a domestic relations order that (1) creates or recognizes the existence of an alternate payee's right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a pension plan, and (2) meets certain other requirements. A domestic relations order is any judgment, decree, or order (including approval of a property settlement agreement) that relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of the participant, and is made pursuant to a state domestic relations law (including community property law). Under the bill, an alternate payee includes any spouse, former spouse, child, or other dependent of a participant who is recognized by a qualified domestic relations order as having a right to receive all, or a portion of, the benefits payable under a plan with respect to the participant.

To be a qualified order, a domestic relations order must clearly specify (1) the name and last known mailing address (if available) of the participant and the name and mailing address of each alternate payee to which the order relates, (2) the amount or percentage of the participant's benefits to be paid to an alternate payee or the manner in which the amount is to be determined, and (3) the number of payments or period for which payments are required. The committee intends that an order will not be treated as failing to be a qualified order merely because the order does not specify the current mailing address of the participant and alternate payee if the plan administrator has reason to know that address independently of the order. For example, if the plan administrator is aware that the alternate payee is also a participant under the plan and the plan records include a current address for each participant, the plan administrator may not treat the order as failing to qualify.

The committee intends that an order that is qualified is to remain qualified with respect to a successor plan of the same employer or a plan of a successor employer (within the meaning of sec. 414(a)).

A domestic relations order is not a qualified order if it (1) requires a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan, (2) requires the plan to provide increased benefits, or (3) requires payment of benefits to an alternate payee that are required to be paid to another alternate payee under a previously existing qualified domestic relations order. An order does not require a plan to provide increased benefits if the order does not provide for the payment of benefits in excess of the benefits to which the participant would be entitled in the absence of the order.

The bill provides that a domestic relations order is not treated as failing the requirements for a qualified domestic relations order merely because the order provides that payments must begin to the alternate payee on or after the date on which the participant attains the earliest retirement age under the plan whether or not the participant actually retires on the date. If the participant dies before that date, the alternate payee is entitled to benefits only if the qualified domestic relations order requires survivor benefits to be paid. In the case of an order providing for the payment of benefits after the earliest retirement age, the payments to the alternate payee at that time are computed as if the participant had retired on the date on which benefit payments commence under the order.

When payments are made to an alternate payee before the participant retires, the payments are computed by taking into account only benefits actually accrued and not taking into account any employer subsidy for early retirement. The amount to be paid to the alternate payee is to be calculated by using the participant's normal retirement benefit accrued as of the date payout begins and by actuarially reducing such benefit based on the interest rate specified in the plan or 5 percent, if the plan does not specify an interest rate. A plan providing only normal and subsidized early retirement benefits would not specify a rate for determining actuarially equivalent, unsubsidized benefits.

If an alternate payee begins to receive benefits under the order and the participant subsequently retires with subsidized early retirement benefits, the order may specify that the amount payable to the alternate payee is to be recalculated so that the alternate payee also receives a share of the subsidized benefit to which the participant is entitled. The payment of early retirement benefits with respect to a participant who has not yet retired or the increase in benefits payable to the alternate payee after the recalculation is not to be considered to violate the prohibition against a qualified domestic relations order providing for increased benefits.

The payments to the alternate payee after the earliest retirement date may be paid in any form permitted under the plan (other than a joint and survivor annuity with respect to the alternate payee and the alternate payee's spouse). In the case of a defined contribution plan, the earliest retirement date is the date on which the participant attains an age that is 10 years before the normal retirement age.

Under the bill, a plan is not treated as failing to satisfy the requirements of section 401(a), 409(d), or 401(k) of the Internal Revenue Code that prohibit payment of benefits prior to termination of employment solely because the plan makes payments to the alternate payee in accordance with a qualified domestic relations order.

Under the bill, an alternate payee is treated as a beneficiary for all purposes under the plan. In no event, however, will more than one PBGC premium be collected with respect to the participant's benefits (determined as if a qualified domestic relations order had not been issued) even though such benefits, subject to the usual limits, may be guaranteed by the PBGC.

Determination by plan administrator

Under the bill, the administrator of a plan that receives a domestic relations order is required to notify promptly the participant and any other alternate payee of receipt of the order and the plan's procedures for determining whether the order is qualified. In addition, within a reasonable period after receipt of the order, the plan administrator is to determine whether the order is qualified and notify the participant and alternate payee of the determination. The notices required under these rules are to be sent to the addresses specified in the order or, if the order fails to specify an address, to the last address of the participant or alternate payee known to the plan administrator.

The bill authorizes the Secretary of Labor to prescribe regulations defining the reasonable period during which the plan administrator is to determine whether an order is qualified. In addition, the bill provides that plans are to establish reasonable procedures to determine whether domestic relations orders are qualified and to administer distributions under qualified orders. Ordinarily, a plan need not be amended to implement the domestic relations provisions of the bill.

Deferral of benefit payments

During any period in which the issue of whether a domestic relations order is a qualified order is being determined (by the plan administrator, by a court of competent jurisdiction, or otherwise), the plan administrator is to defer the payment of any benefits in dispute. These deferred benefits are segregated either in a separate account in the plan or in an escrow account. In the case of a defined benefit plan, the amounts are to be placed in an escrow account. Of course, segregation is not required for amounts that would not otherwise be paid during the period of the dispute.

If the order is determined to be a qualified domestic relations order within 18 months after the deferral of benefits, the plan administrator is to pay the segregated amounts (plus interest) to the persons entitled to receive them. If the plan administrator determines that the order is not a qualified order or, after the 18-month period has expired, has not resolved the issue of whether the order is qualified, the segregated amounts are paid to the person or persons who would have received the amounts if the order had not been issued.

Any determination that an order is qualified after expiration of the 18-month period is to be applied prospectively. Thus, if the plan administrator determines that the order is qualified after the 18-month period, the plan is not liable for payments to the alternate payee for the period before the order is determined to be qualified.

Of course, the provisions of the bill do not affect any cause of action that an alternate payee may have against the participant. For example, if an order is determined to be qualified after the 18-month period, the alternate payee may have a cause of action under state law against the participant for amounts paid to the participant that should have been paid to the alternate payee.

During any period in which the alternate payee cannot be located, the plan is not permitted to provide for the forfeiture of the amounts that would have been paid unless the plan provides for full reinstatement when the alternate payee is located.

Consultation with the Secretary of the Treasury

Under the bill, the Secretary of Labor is required to consult with the Secretary of the Treasury in prescribing regulations under these provisions.

Tax treatment of divorce distributions

The bill provides rules for determining the tax treatment of benefits subject to a qualified domestic relations order. Under the bill, for purposes of determining the taxability of benefits, the alternate payee is treated as a distributee with respect to payments received from or under a plan.

Under the bill, net employee contributions (together with other amounts treated as the participant's investment in the contract) are apportioned between the participant and the alternate payee under regulations prescribed by the Secretary of the Treasury. The apportionment is to be made pro rata, on the basis of the present value of all benefits of the participant under the plan and the present value of all benefits of the alternate payee under the plan (as alternate payee with respect to the participant under a qualified domestic relations order).

Payments to an alternate payee before the participant attains age 591/2 are not subject to the 10-percent additional income tax that would otherwise apply under certain circumstances if the participant received the amounts.

The bill provides that the interest of the alternate payee is not taken into account in determining whether a distribution to the participant is a lump sum distribution. Under the bill, benefits distributed to an alternate payee under a qualified domestic relations order can be rolled over, tax-free, to an individual retirement account or to an individual retirement annuity. The usual income tax rules apply to benefits not rolled over. The special rules for lump sum distributions from qualified plans will not apply to benefits distributed to an alternate payee.

Effective Dates.

The provisions of the bill relating to assignments in divorce, etc., proceedings generally apply on January 1, 1985. If a domestic relations order was received by a plan before the date of enactment, however, the plan the administrator is to treat the order as a qualified domestic relations order to the extent payments are being made pursuant to the order. In addition, the plan administrator may treat any other order entered before the effective date as a qualified order. The committee encourages plan administrators to treat an existing order as qualified to the extent it is consistent with the provisions of the bill. Of course, if the plan administrator does not treat an order as qualified, the alternate payee may amend the order to satisfy the requirements for a qualified order.

[Steelerfan]

The following is the conference report from TRA '86"

Qualified Domestic Relations Orders

Conference Report

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Explanation of Provision.

*** [A]n order will not fail to be a qualified domestic relations order even if the form of the benefit does not continue to be a form permitted under the plan on account of (1) a plan amendment or (2) a change of law. In the case of a plan amendment, an alternate payee remains entitled to receive benefits in the form specified in the order unless the alternate payee elects to receive benefits in another form and the election of such alternate form does not affect, in any way, the amount or form of benefits payable to the participant. In the case of a change of law, which makes the form specified in the order impermissible, the committee intends that the plan is to permit the alternate payee to select a form of benefit specified in the plan, provided the selection of an alternative form by the alternate payee does not affect, in any way, the amount or form of benefits payable to the participant.

The bill makes it clear that the 18-month period during which benefits may be deferred begins with the date on which any payments would, but for the deferral, be required to commence. Accordingly, if a payment is deferred pending the resolution of a dispute, then that payment and each other payment that is deferred within the next 18 months because of the dispute are to be segregated. If the dispute is not resolved within 18 months after the first payment is deferred, then all payments deferred during the 18-month period with respect to the dispute are to be paid to the persons who would have received them if the order had not been issued.

If a plan administrator determines that a domestic relations order is defective before the expiration of the 18-month suspension period, *** the plan administrator may delay payment of a participant's benefit until the expiration of the 18-month period if the plan administrator has notice that the parties are attempting to rectify any deficiences in the order.

Notice of issuance of a stay during the time an appeal is pending is deemed to be notice that the parties are attempting to cure deficiencies in a domestic relations order. Further, the committee intends that a plan administrator will honor a restraining order prohibiting the disposition of a participant's benefits pending resolution of a dispute with respect to a domestic relations order.

In addition, the bill eliminates the requirement that a defined benefit plan establish an escrow account for amounts that would have otherwise been paid during the 18-month period. Instead, the plan administrator is required only to account separately for such amounts. If the deficiency is not cured or the dispute not resolved within the 18-month period, all payments deferred during the 18- month period are to be paid to the persons who would have received them if the stay or order had not been issued.

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Conference Report

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The conference agreement adopts the provisions in the Senate amendment with regard to procedures during the 18-month period. If a plan administrator determines that a domestic relations order is defective before the expiration of the 18-month suspension period, the conference committee intends that the plan administrator may delay payment of a participant's benefit until the expiration of the 18-month period if the plan administrator has notice that either party is attempting to rectify any deficiencies in the order.

Similarly, the committee intends that the plan administrator may delay payment of benefits for a reasonable period of time if the plan administrator receives notice that a domestic relations order is being sought. For example, a participant in a profit-sharing plan which is exempt from the survivor benefit rules requests a lump-sum distribution from the plan. Before the distribution is made, the plan administrator receives notice that the participant's spouse is seeking a domestic relations order. The plan administrator may delay payment of benefits.

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Senate Explanation

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Explanation of Provision.

The bill clarifies that a qualified domestic relations order may not require that payments prior to, or subsequent to, a participant's separation from service be made in the form of a qualified joint and survivor annuity with respect to the alternate payee and his or her subsequent spouse.

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Explanation of Provision.

The bill clarifies that the qualified domestic relations provisions do not apply to any plan to which the assignment or alienation restrictions do not apply. For example, a domestic relations order relating to the division of pension benefits of a participant in a plan maintained by a governmental employer is not required to meet the rules relating to qualified domestic relations orders because the payment of benefits to a spouse or former spouse of the participant is not a prohibited assignment or alienation of the participant's benefits.

Coordination of Domestic Relations Provisions with Federal Garnishment Restrictions.

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Explanation of Provision.

*** [P]ayment of benefits pursuant to a qualified domestic relations order is not treated as a garnishment of wages for purposes of Federal or state law restrictions on garnishment.

Coordination with Qualified Plan Requirements

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Explanation of Provision.

*** [A] plan is not treated as failing to satisfy the qualification requirements of section 401(a) or (k) or section 409(d) of the Internal Revenue Code (prohibiting payment of benefits prior to termination of employment or such time as distributions are otherwise permitted) solely because the plan makes payment to the alternate payee, even if the payments are made with respect to a participant who has not separated from service, and they commence before the participant has attained the earliest retirement age under the plan. This exception applies, however, only if the present value of the benefit to be paid to an alternate payee (1) does not exceed $3,500 or (2) exceeds at least $3,500 and the alternate payee consents in writing to such earlier distribution. Further, the exception applies only if the distribution, if paid to the participant, would not contravene the provisions of the plan (except as permitted under section 414(p)(4)). Of course, a plan could not make distributions to an alternate payee at a time not specified in a qualified domestic relations order unless (1) the order also provided for such earlier distributions pursuant to an agreement between the plan and an alternate payee, and (2) the plan authorized such distributions.

In determining whether the present value of the benefit payable to the alternate payee exceeds $3,500, the present value of the participant's accrued benefit or that of any other alternate payee (after reduction for the benefits payable to the alternate payee) is disregarded. Similarly, for purposes of determining whether the present value of a benefit payable to a participant exceeds $3,500, the present value of amounts payable to an alternate payee under a qualified domestic relations order is disregarded.

*** [T]o the extent provided in a qualified domestic relations order, a spouse of a participant is not treated as a spouse. For example, a qualified domestic relations order could provide for the division of a participant's accrued benefits under a pension plan as part of a separation agreement and could further provide that the participant's spouse is not entitled to receive any survivor benefits under the usual survivor benefits provisions. Thus, the plan administrator would not be required to secure spousal consent to the participant's election to waive a survivor benefit.

In addition, the bill authorizes the Secretary of the Treasury to issue such regulations as may be necessary to otherwise coordinate the Code provisions affecting qualified domestic relations orders (sections 401(a)(13)(B) and 414(p)), and the regulations issued by the Secretary of Labor thereunder with other Code provisions affecting qualified plans. The Secretary of Labor has authority to issue regulations under the qualified domestic relations order provisions of ERISA, and the Code (secs. 401(a)(13)(B) and 414(p)), and the bill does not affect the authority of the Secretary of Labor to prescribe such regulations.

Earliest Retirement Age.

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Conference Report

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Under the conference agreement, the definition of “earliest retirement age” for purposes of the QDRO provisions in the case of a defined contribution plan or a defined benefit plan is the earlier of: (1) the earliest date benefits are payable under the plan to the participant, and (2) the later of the date the participant attains age 50 and the date on which the participant could obtain a distribution from the plan if the participant separated from service.

For example, in the case of a plan which provides for payment of benefits upon separation from service (but not before then), the earliest date on which a QDRO can require payments to an alternate payee to begin is the date the participant separates from service. A QDRO could also require such a plan to begin payments to an alternate payee when the participant attains age 50, even if the participant has not then separated from service. The amount payable under a QDRO following the participant's earliest retirement age cannot exceed the amount which the participant is (or would be) entitled to receive at such time. For example, assume that a profit-sharing plan provides that a participant may withdraw some, but not all, of the participant's account balance before separation from service. A QDRO may provide for payment to an alternative payee up to the amount which the participant may withdraw.

A plan may provide for payment to an alternate payee prior to the earliest retirement age as defined under the conference agreement.

[Guest Ms Behave]

Wow, Steelerfan, you are a doll!! Thanks so much. I have printed all of this out. Words can't express how much I appreciate your help in locating all of this.

[Steelerfan]

Wow, Steelerfan, you are a doll!! Thanks so much. I have printed all of this out. Words can't express how much I appreciate your help in locating all of this.

I thought you might like that. Think of it as a Christmas present!

[Guest Ms Behave]

Thanks for the gift . . . sorry, Steeler, I didn't get anything for you! Merry Christmas!