Defense of Marriage Act Affidavit

[Guest QDROs]

Fidelity Employer Services Company LLC is the administrator for a QDRO I am working on.

Fidelity says that it requires an affidavit signed by both parties attesting that the AP is a former "spouse" under the definitions under the Federal Defense of Marriage Act. Interestingly, Fidelity says it will not transfer any funds until it has the affidavit.

In my case Husband has not responded to any of my correspondence, so I am anticipating that he will not sign the affidavit.

Have any of you encountered this situation? What have you done? What is your advice?

[MSN]

The plan should have established procedures for administering distributions under a QDRO. If it's not in the procedures, I don't see how an administrator could justify not acting on the distribution request on these grounds.

[Peter Gulia]

Do you represent the participant or the proposed alternate payee?

If your client’s instructions or purposes would not be met by the plan’s denial of a QDRO claim, consider, along with other ideas, some steps to sort out the plan’s decision-making:

• Use the plan’s summary plan description or a recent Form 5500 to check the identity and address of the plan’s administrator. (It’s unlikely that FESCO is named as the plan’s administrator.)

• If you don’t already have the plan’s QDRO-decision procedure, request that the plan administrator send this to you.

• If the procedure doesn’t describe requiring the affidavit Fidelity mentioned, consider challenging the plan administrator’s failure to follow its procedure.

The Labor department has stated a view that an ERISA plan’s administrator need not “review the correctness” of a State court’s finding that a natural person is or was the participant’s spouse. Moreover, the Advisory Opinion stated a view that a plan administrator may rely on a court order’s description of a person as a former spouse notwithstanding the same court order’s decision that the person never was the participant’s spouse. ERISA Adv. Op. 92-17A (Aug. 21, 1992).

Some lawyers consider the interpretation suggested by the Advisory Opinion unsound, and some advise clients not to rely on it if the court’s description of a relationship is obviously wrong or internally inconsistent. However, many plan administrators find it convenient to use the Labor department’s view as a way to avoid considering whether a proposed alternate payee is or was the participant’s spouse.

If the plan administrator truly requires evidence beyond the court order, consider whether your client could present other evidence that the marriage exists or previously existed.

As always, if you need advice about how you go about your lawyering, it’s often smart (and sometimes required) to consult an expert.

[GMK]

This could be Fidelity's response to the fraudulent DRO recently discussed here under QDRO from Hades

... not that that changes the Plan Administrator's need to follow the Plan's QDRO Procedure.

[Peter Gulia]

GMK, you're right that some plan administrators and their service providers use extra procedures as an effort to protect plans from frauds. For example, some use appearance tests and docket look-ups to try to consider whether a paper that appears to have been signed by a judge as a domestic-relations court's order likely was so signed.

One assumes that you're merely referring to what papillon described as resulting in a 'fraudulent DRO' without adopting papillon's description. However, in "QDRO from Hades", papillon didn't entirely say that the court's order was other than an order. Rather, he or she suggested that a litigant made a false presentation to the court: "My ex-wife fradulently submitted a bogus DRO that she had drafted - misrepresenting to the MO circuit court judge that it was a product of the attorneys. The judge signed ...."

An outside-the-order procedure of the kind that "QDROs" described Fidelity as requesting would be unlikely to detect a litigant's misdescription of a draft order. And the fact that a draft order was misdescribed before the judge signed the court's order might be irrelevant to a plan administrator.

Aside from these observations, is it possible that Fidelity's request relates to the payer's tax-reporting duties? If there is an absence of evidence (in the court order or otherwise) that an alternate payee was the participant's spouse, a payer might assume that it should tax-report a QDRO distribution as the participant's income.