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Can this DRO be a QDRO?


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Suppose a DRO that was signed by the judge and the person who is to be the alternate payee, but not by the participant, is being submitted to the plan administrator. It is not clear whether the participant is willing to sign the order.

Would the fact that the participant has not signed off prevent the order from being properly recognized as a QDRO? If it makes a difference, presume that the order relates to a defined benefit pension plan.

Always check with your actuary first!

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Does the Judge's Order explain why it is drafted to allow for participant and AP signatures? Does the Order say it is contingent upon their acceptance/signatures?

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Courts order a lot of things that one of the parties does not agree to. The question is whether or not the order is valid under state domestic relations law and the plan administrator does not have a duty to determine state domestic relations law. The plan administrator can accept the order on its face, so jpod's questions are determinative. If the order appears on its face that the execution by the participant is a condition of effectiveness, then signature is neccessary, otherwise not. A blank signature line in the form of order is not a provision that says that execution is required for the order to be effective. The presumption should be that if the order is issued, then it is effective. The participant can take appropriate action to suspend matters upon receipt of the notice of qualification if in fact participant consent was necessary for the order to be effective.

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@jpod

That would be my question as well. It almost sounds like they are conflating a settlement agreement with a DRO. The QDRO is a court order. Court orders require no signatures from either party. Nor is a settlement agreement or stip, a DRO.

I have never personally prepared DRO that requires either party's signature, nor could I ever envision a situation where that would be a necessity. There is either more to the story or someone doesn't have full understanding of the DRO process and what the plans require.

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In all liklihood, the order is valid - with just the judges signature on it. What TYPICALLY happens is that the court ASKS one of the parties (or both) to draft an order for signature by the judge. The placement of signature lines for the parties (or their attorneys) is there for one (or both) of two possible reasons. First, to indicate that the parties agree on the language of the order. This is NOT necessary for the order to be effective, but simply lets the judge know that the parties are in agreement with the terms of the order as written (without having to look at the record, or inquire as to why one party doesn't agree). Often, the drafting attorney forwards the draft order to the other attorney, and if the other attorney doesn't sign off on it within a certain period of time, the order is still submitted - often with a notation where the other party should have signed saying "seen but not approved xx/xx/2015" indicating that they saw it - but posited no FORMAL objection - so the judge will sign it.

The second reason an order may be signed by the parties is simply to give notice to them that an order if the judge has been issued (to avoid the "I didn't know I was supposed to ...."). Again, this is NOT necessary as parties to litigation (including a divorce) are PRESUMED to know what is in the file/docket and if you don't, you do so at your peril.

UNLESS the order CLEARLY says "not valid unless signed by hte parties" - the ORDER is valid with JUST the signature of the judge (assuming it otherwise is a valid DRO under state law) and the fact that ONE party signed it (but not the other) is superfluous.

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Thanks to all! Very useful commentary!

The DRO has not been provided yet for review, so it cannot be determined whether there are, in fact, any conditions in it requiring signature by one or both of the parties in addition to that of the judge (who, it is our understanding, has already signed it).

Always check with your actuary first!

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Really? You asked that question and you haven't even seen the document that is the basis of the speculation? Where did you make this up from?

Is anyone else feeling a bit put off by spending time to help with a question that is not even a real question? I don't mind so much a clear "what if" on an interesting legal point, but his one really bothers me because it the question is based completerly on imaginations that will be realized (or not) later and the question could have been asked later when it might have had some meaning.

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This is from an actual situation, where the alternate payee expressed concern that the participant has not signed the order yet. It was not a "what if" hypothetical. Sorry if I gave the impression that it was.

Always check with your actuary first!

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Thank you for the clarification. In that situation, if the question were asked of the plan, the plan should respond that the question should be redirected because it is outside the scope of the plan's concerns and responsibilities. that goes back to the issuse of what is happeing under state domestic relations law and how the plan is not required to occupy itself with stat law matters. In almost any QDRO situation in which the plan is not required to attend to something, the plan would be well-advised to keep out of it.

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