participant is also alternate payee

[Draper55]

i have a situation were husband and wife were in the same plan. wife quits and the marriage is dissolved. the settlement agreement by the judge basically split their combined interest in the plan 50/50. attorney for the alternate payee(wife) writes qdro to say that alternate payee will get one half of partiicpant's plan interest. I do not think this is correct because she still gets her interest as a participant; hence for her to get 50% of his interest as an alternate payee she would end up with 75%

of their combined interest..In other words giving her something as a alternae payee does cannot cancel what she has as a participant ??

[QDROphile]

If you are associated with the plan, your question is impertinent.

[david rigby]

so what? Does everything have to be split 50/50 in a divorce? Of course not.

[CADMT]

The combined interest/balance in the plan should be divided by 2 and then subtract that result from each participant's balance. The QDRO should then stipulate that the positive remainder be transferred to the negative remainder so that both account balances are even. Only one QDRO is necessary. If the parties cannot agree, then 2 QDROs can be written, each stipulating that 50% is to be transferred to the other party.

I assume from your post that you are not in the plan administrator's office because you are aware of what is in the stip. So if you are the participant who is receiving less than your 50% talk to your attorney and write a QDRO that divides the other participant's account by 50%.

[K2retire]

Keep in mind that a property settlement is intended to divide all of the marital assets -- not just the retirement accounts. Sometimes the retirement accounts are split unevenly to offset other assets that are transferred to one party or the other.

[Draper55]

for this with an open mind thanks for your responses..the question really revolved around

the draft qdro being written in such a fashion that the alternate payee would get

more than the settlement agreement confers because the alternate payee is

also a participant...I think CADMT grasped this to some degree..I am a TPA here

asked to review the draft QDRO and i also have a copy of the settlement agreement...

[ForksnKnives]

Sounds like either the drafting attorney is trying to pull a fast one on the other attorney or just doesn't know what he or she is doing. Either way, the other participant's attorney should oppose the proposed DRO and propose one that accurately divides the accounts based on the agreement.

[Peter Gulia]

Some practitioners suggest that a plan's administrator (and the plan's service providers) might prefer not to have any information that might lead one to wonder whether an order's division is inconsistent with an agreement that the order is supposed to be based on. A few have written in the QDRO procedure that, except for the claimant's claim form and a submitter's transmittal letter, the administrator will not read any document other than an order. To emphasize the point, the procedure has the administrator send a letter to all claimants and representatives stating that documents other than the order were not read (and were discarded).

I can see advantages and disadvantages to this; what do BenefitsLink mavens think about this procedure?

[Effen]

I agree. All I want to see is the QDRO. If they send me additional information I make sure my transmittal letter explicitly states that I did not review any of it.