QDRO Amendment?

[Guest AP 2006]

I am the Alternate Payee and I was married to the Participant for 32 years (including 5 years after he retired) - at the time he retired he elected to receive a monthly benefit payment. Since then we went through a dissolution and our QDRO states that I receive 50% of his monthly benefit. During our marriage we had cashed in MY 401k, therefore when we split up, I asked for 1/2 of his pension and he agreed. I have since re-married and he just re-married a couple of weeks ago. He now wants me to give up my monthly benefit since I have a job and my husband has a job (he and his new wife have no jobs). I feel that during our marriage (when I was and still am employed the whole time) - it was OUR house, it was OUR 401k that we cashed in and used, and it was OUR 401k that I am now receiving monthly benefits from. I am not even considering "changing" our existing QDRO BUT I would like some advice on how to answer him without going into an all out war. I actually think the Participant was trying to change beneficiaries to his new wife for his pension. I wish I could have taken a lump sum but I had no choice since had already designated a monthly benefit payment at the time he retired.

Questions:

1. Can a QDRO be revised and how costly is that and would we have to hire lawyers?

2. The QDRO states in one section that "the amount awarded by the order shall be paid for the participant's lifetime until the earlier of: (i) the death of the participant, or (ii) the death of the alternate payee. The alternate payee shall have no rights in or to any amount of the participant's accrued benefit under the Plan not assigned by this order. It then goes on to say that "The alternate payee will be entitled to receive benefits following the death of the participant to the extent provided under the form of payment in which benefits are currently being paid to the participant." Are these survivorship rights?

3. Can he change beneficiary rights to this QDRO? I don't want to deny his new wife of anything that is rightfully hers BUT at the same time, I don't want to screw myself either.

Life situations can change in a heartbeat! Any advice would be appreciated.

[J Simmons]

1. Can a QDRO be revised and how costly is that and would we have to hire lawyers?

QDROs may effectively be revised by the entry of another court order. See U.S. DoL Regs § 2530.206 issued in March 2007. Also, however, where the benefits in question are already in pay status, your rights as a spouse would seem to be vested and not subject to being taken by another court order. Refer your lawyer to Carmona v Carmona, No. 06-15581 and 06-15938 (9th Cir 9/17/2008).

Would you have to hire lawyers? If your ex files a motion in the divorce court, or some other legal maneuver, your interests would be best protected by hiring a local attorney knowledgeable in such matters.

What would it cost? That's hard to predict. Too many variables and unknown factors could come into play.

2. The QDRO states in one section that "the amount awarded by the order shall be paid for the participant's lifetime until the earlier of: (i) the death of the participant, or (ii) the death of the alternate payee. The alternate payee shall have no rights in or to any amount of the participant's accrued benefit under the Plan not assigned by this order. It then goes on to say that "The alternate payee will be entitled to receive benefits following the death of the participant to the extent provided under the form of payment in which benefits are currently being paid to the participant." Are these survivorship rights?

Maybe. It depends on whether the form of payment is as a single life annuity or a joint and survivor annuity.

Can he change beneficiary rights to this QDRO? I don't want to deny his new wife of anything that is rightfully hers BUT at the same time, I don't want to screw myself either.

If a joint and survivor annuity is the form of payment, then the plan should not allow your ex to change your survivor rights. If your ex obtains a new QDRO that is presented to the plan administrator, your ex will likely run into difficulties with the plan. But it is better to make your first stand in divorce court, arguing the equities (reasons like those you've listed) and the Carmona case.

[Guest mjb]

I am the Alternate Payee and I was married to the Participant for 32 years (including 5 years after he retired) - at the time he retired he elected to receive a monthly benefit payment. Since then we went through a dissolution and our QDRO states that I receive 50% of his monthly benefit. During our marriage we had cashed in MY 401k, therefore when we split up, I asked for 1/2 of his pension and he agreed. I have since re-married and he just re-married a couple of weeks ago. He now wants me to give up my monthly benefit since I have a job and my husband has a job (he and his new wife have no jobs). I feel that during our marriage (when I was and still am employed the whole time) - it was OUR house, it was OUR 401k that we cashed in and used, and it was OUR 401k that I am now receiving monthly benefits from. I am not even considering "changing" our existing QDRO BUT I would like some advice on how to answer him without going into an all out war. I actually think the Participant was trying to change beneficiaries to his new wife for his pension. I wish I could have taken a lump sum but I had no choice since had already designated a monthly benefit payment at the time he retired.

Questions:

1. Can a QDRO be revised and how costly is that and would we have to hire lawyers?

2. The QDRO states in one section that "the amount awarded by the order shall be paid for the participant's lifetime until the earlier of: (i) the death of the participant, or (ii) the death of the alternate payee. The alternate payee shall have no rights in or to any amount of the participant's accrued benefit under the Plan not assigned by this order. It then goes on to say that "The alternate payee will be entitled to receive benefits following the death of the participant to the extent provided under the form of payment in which benefits are currently being paid to the participant." Are these survivorship rights?

3. Can he change beneficiary rights to this QDRO? I don't want to deny his new wife of anything that is rightfully hers BUT at the same time, I don't want to screw myself either.

Life situations can change in a heartbeat! Any advice would be appreciated.

If this a final decree of divorce and the court did not reserve the right to modify the decree at a future date then the decree cannot be changed. I dont see any basis for changing the QDRO because of a change in your ex's circumstances any more than you would be entitled to a larger share of his benefits if you were out of work.

I dont see how he can change your rights to a survivor benefit because the rights to survivor death benefits under the plan accrue to you as the spouse to whom your husband was married to at the time he retired. Your ex's current spouse has no right to a survivor benefit because your ex was not married to her at the time he retired and providing a survivor benefit to her at this time would increase the overall cost to the plan in violation of the law.