QDRO needed if parties agree to remain J&S beneficiaries?

[Guest jfreeborn]

I have a client (the wife) who is still working at her job and will retire some years down the road. She and her husband are getting a divorce, which should be finalized relatively soon. The husband is retired and is currently receiving his pension in the form of a J&S annuity. They each want to keep their own pensions after divorce and remain each others J&S beneficiaries so that if one remarries, the new spouse would not receive the 50% part of their benefit. Each is listed as the others spouse right now.

Is a QDRO needed for either/both of the pensions? I assume there may be different answers b/c his pension is in pay status???

[GMK]

As a general answer, I would look at what happens if there are no QDRO's.

What do the Plans say will happen after they divorce, if they remarry, if they die, if they designate different beneficiaries after the divorce, etc., etc., etc. They won't be each other's spouse after the divorce.

If what the plans say is not what the people want, then they may want to do QDRO's.

[david rigby]

... remain each others J&S beneficiaries so that if one remarries, the new spouse would not receive the 50% part of their benefit.

Good advice from GMK.

The norm is that the J&S goes to the person who was the spouse at the benefit commencement date; see IRS Reg. 1.401(a)-20, Q&A25.

[Guest Sieve]

But, a QDRO probably could require, for an annuity already being paid, that payments after death go to a different beneficiary than the former spouse, but those payments certainly would have to cease at the death of the deceased's former spouse (even if being paid to another person) because otherwise the QDRO would require the plan to provuide a form of benefit not otherswise provided under the plan.