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Second QDRO filed just prior to receiving pension benefits 23 years after divorce settlement


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(NYS) My ex- wife received a portion of my annuity (via the first executed QDRO), medical benefits through me for life, and cash as part of our divorce settlement in the 90s. The QDRO was signed by all parties, the judge, and filed.

Flash forward to now. we recently began to process of receiving my pension and annuity and my union demanded we send a waiver for signature to my ex wife. She refused to sign, lawyered up, and filed another DRO (already accepted by the plan administrators) with the judge who has also signed and delivered the papers on to me. 

I would like to fight this, as I’ve seen the chances of her winning aren’t great, and want to know what the logical and rational response to the judge should be.

id planned to file a motion indicating, among other things, that the pension was NOT a part of the divorce settlement.

no minor children involved...

any help will be greatly appreciated!

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This is probably way too complicated for this forum.  If your ex in fact already received everything she was entitled to, and there should have been something in the QDRO and maybe plan forms confirming that she was entitled to nothing else - then it seems your union (or whomever was acting for them) made a gross error in asking for your ex to waive anything she wasn't entitled to.  I'd start by going back to them and pointing out that they have alienated you from receiving your pension benefits, which is pretty serious stuff, and ask them how they are going to fix it (presumably by simply paying your benefits).  In theory, it really isn't that complicated - the plan administrator would review the (new) QDRO, and if they are following a checklist, will check a box that says "no this isn't legit because the benefits were paid already" and move on.  But I'm not sure what you mean when you say that's already been accepted by the plan administrators - did they just mess up (the same people again, who asked for your ex's waiver)?!

And then you say the pension was not part of the divorce settlement - are we talking about a non-pension annuity and another pension?

It's not at all clear what's going on.  

Ed Snyder

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Hi and thanks for the reply. It is very likely the union messed up in requiring the waiver.

the original settlement stipulates that she (ex wife) receive a portion of the annuity that is wholly separate from my pension. The new DRO filed was for a portion of the pension, which was not in the divorce settlement.

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1 hour ago, Mj1804 said:

the original settlement stipulates that she (ex wife) receive a portion of the annuity that is wholly separate from my pension. The new DRO filed was for a portion of the pension, which was not in the divorce settlement.

Thanks for clarifying.  Was the pension disclosed and described in the divorce settlement, with language to the effect of "we agree that husband gets to keep this?"

If so, you seem to be on very solid ground.  If not, well, that could be a problem.  But I'm not a lawyer so I don't know that end so much.  Also I didn't know a DRO could be issued without agreement or at least input from both sides, but again, I'm not a lawyer.  I'd be interested to learn that from someone who knows.

Ed Snyder

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Not at all, but it needn't be. Language is clear with regard to what she is entitled to in the final judgment. BUT it is not unheard of for spouses to try this sort of thing with a DRO... what makes my situation more unique is that this is the SECOND (DRO) filed and almost two decades later at that. 

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I'm confused. 

You have an employer sponsored Annuity, which is completely separate from the pension?

Is the Annuity part of a retirement program?

 

Is this correct:

Annuity (part of something other than the pension) - a DRO was filed 20+ years ago, ex-wife was awarded part of it. 

Pension Plan benefit - a DRO is filed present day, it awards ex-wife part of the benefit. Original divorce property settlement agreement from 20+ years ago is clear that pension is 100% awarded to the husband - ZERO to ex-wife. 

So there are two DROs, for two different retirement programs / plans? In that case you don't have competing DROs on the same plan. 

I'm a stranger on the internet. Nothing I write is tax or legal advice. 

I'd like a witty saying here, but I don't have any. When in doubt, what does the plan document say?

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Almost exactly correct -Justanotheradmin. The only inaccuracy is that the original settlement doesn’t mention anything about the pension at all. There was a DRO which became the QDRO for the annuity and that was it.

flash forward to present day, she receives a waiver for signature for the release of my pension payments (to me) from my union and proceeds to file a new DRO to get a portion of the pension.

I’m not certain the union needed to do that, btw.

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This appears to be a state domestic relations law issue at heart, which is not best addressed in this forum.

We do appreciate the thought that the plan administrator (which you described as the union) probably messed up, and therefore caused problems.  Evaluation would depend on the terms of the domestic relations orders the plan received.

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20 hours ago, Mj1804 said:

(NYS) My ex- wife received a portion of my annuity (via the first executed QDRO), medical benefits through me for life, and cash as part of our divorce settlement in the 90s. The QDRO was signed by all parties, the judge, and filed.

Flash forward to now. we recently began to process of receiving my pension and annuity and my union demanded we send a waiver for signature to my ex wife. She refused to sign, lawyered up, and filed another DRO (already accepted by the plan administrators) with the judge who has also signed and delivered the papers on to me. 

I would like to fight this, as I’ve seen the chances of her winning aren’t great, and want to know what the logical and rational response to the judge should be.

id planned to file a motion indicating, among other things, that the pension was NOT a part of the divorce settlement.

no minor children involved...

any help will be greatly appreciated!

Several commentators have pointed out that this is not really the forum to answer your question.  You might very well have a justified reason to ask that the second DRO be withdrawn. But the judge has already issued the order and if the plan CAN comply with it, it must until they are notified by the judge that the order is revoked.

You need an ERISA atty at this point who knows what h/she is doing and you have to go back to court since only a judge can vacate the order.  Good luck.

Lawrence C. Starr, FLMI, CLU, CEBS, CPC, ChFC, EA, ATA, QPFC
President
Qualified Plan Consultants, Inc.
46 Daggett Drive
West Springfield, MA 01089
413-736-2066
larrystarr@qpc-inc.com

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I agree, you need an attorney. 

If the original settlement does not mention the pension - there is your problem. And that is distinct from the DRO.

If you are concerned about the plan paying a benefit to the ex-wife before you can get it resolved, well, an attorney can advise as to your options there. 

Good luck. 

I'm a stranger on the internet. Nothing I write is tax or legal advice. 

I'd like a witty saying here, but I don't have any. When in doubt, what does the plan document say?

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See my comments in ALL CAP BOLDED.

 

(NYS) My ex- wife received a portion of my annuity (via the first executed QDRO), WHAT IS THE EXACT NAME OF THE PLAN medical benefits through me for life, and cash as part of our divorce settlement in the 90s. The QDRO was signed by all parties, the judge, and filed. WHAT DO YOU MEAN BY "FILED", AND WITH WHOM WAS IT FILED?  WAS A CERTIFIED COPY SENT TO THE PLAN ADMINISTRATOR?  WAS IT APPROVED BY THE PLAN ADMINISTRATOR?

Flash forward to now. we WHO IS "WE"?  recently began to process of receiving my pension and annuity DID YOU EX WIFE START TO GET HER SHARE FOR YOUR "PENSION AND ANNUITY"?  WHAT DO YOU MEAN BY "PENSION AND ANNUITY"?  DID YOU HAVE A PENSION AND DEFERRED COMPENSATION PLAN THAT WAS TO BE PAY OUT AS AN ANNUITY ON RETIREMENT?  WAS THERE ONE PLAN OR TWO?  and my union demanded we send a waiver for signature to my ex wife. She refused to sign, lawyered up, and filed another DRO (already accepted by the plan administrators) with the judge who has also signed and delivered the papers on to me. WHAT I THINK HAPPENED IS THAT THE PLAN ADMINISTRATOR KNEW YOU WERE DIVORCED, KNEW THAT THERE WAS AN AGREEMENT OF SOME SORT AND WANTED THE WIFE TO SIGN OFF AND WAIVE IT SINCE THERE WAS NO CONFIRMING QDRO.   AND I THINK YOUR WIFE DISCOVERED THAT THE ORIGINAL QDRO WAS NOT SENT TO OR APPROVED BY THE PLAN AND THAT THE "NEW" QDRO IS ACTUALLY A CERTIFIED COPY OF THE ORIGINAL QDRO.  

OR THE OTHER OPTION IS THAT THERE WERE TWO PLANS TO WHICH SHE WAS ENTITLED AND YOU ONLY DID THE QDRO FOR ONE.  

SOME UNIONS, FOR EXAMPLE, FOR ELEVATOR UNION MEMBERS HAVE TWO PLANS, ONE IS CALLED A "PENSION PLAN" AND THE OTHER IS CALLED AN "ANNUITY AND 401(K) PLAN".  THE LATTER IS NOT AN ANNUITY.  

I would like to fight this, as I’ve seen the chances of her winning aren’t great, and want to know what the logical and rational response to the judge should be.

id planned to file a motion indicating, among other things, that the pension was NOT a part of the divorce settlement. YOUR PENSION IS AN ANNUITY AND YOU SAID SHE WAS TO GET PART OF YOUR ANNUITY, SO IT WAS PART OF THE DIVORCE SETTLEMENT

YOUR LACK OF FAMILIARITY WITH THE LANGUAGE IN THIS AREA OF THE LAW CAUSES YOU TO STRUGGLE IN COMMUNICATING THE SITUATION AND US TO STRUGGLE TO UNDERSTAND WHAT IS HAPPENING.  

no minor children involved...

any help will be greatly appreciated!

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You’re overthinking it. The original annuity 401k is part of the settlement and was already prepared and signed by the judge.

To be clear, the QDRO from the divorce was fully executed and signed by all parties. Why would they file another but change the name from annuity to pension?

 

The pension is separate and was not a part of the original settlement. 

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Not much I or anyone can do to help you if you do not answer my questions.  A 401(k) is NOT an annuity no matter what they call it.   You need to hire a lawyer who if familiar with these issues, and furnish him/her with copies of all relevant documents.    

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12 hours ago, fmsinc said:

Not much I or anyone can do to help you if you do not answer my questions.  A 401(k) is NOT an annuity no matter what they call it.   You need to hire a lawyer who if familiar with these issues, and furnish him/her with copies of all relevant documents.    

To be fair, I think the original poster has made things reasonably clear.  It seems to boil down to the fact that the pension was not part of the original settlement.  What, exactly, that means, is the issue - "not part of" in the sense of "we know about it and he gets to keep it" or "not part of" in the sense that it wasn't mentioned at all?

Ed Snyder

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The first sentence of his post included, "My ex- wife received a portion of my annuity (via the first executed QDRO)".  In my world an annuity is usually a pension, that is, a defined benefit plan.  Although it can be an annuitized payout of a defined contribution plan, that is very rare in my 30+ years of experience.  You cannot say that she was awarded a portion of my annuity but not a portion of my pension .  I don't this our guy knows what she was awarded at any point in his case.  I have learned not to believe anything my clients tell me.  They cannot set forth a question without having the vocabulary or the underlying knowledge to do so.      

We could likely answer his question if we saw a copy of both QDROs and the underlying Judgment of Divorce or written Agreement.   Otherwise we are wasting our time trying to have him explain matters that he himself cannot comprehend or explain.  Perhaps the Court entered a revised QDRO to address matters that WERE included in the Agreement or Judgment of Divorce but were inadvertently omitted from the first QDRO.  Maybe the court issued a nunc pro tunc order to clarify it's intent.  Maybe, as I suggested, the first Order was not submitted to the Plan or was submitted but not qualified and the 2nd QDRO is not much different from the first. 

My colleagues, or clients they refer, regularly call with questions that I cannot answer without seeing the proposed QDRO, the written Agreement and Judgment of Absolute Divorce, the docket entries, the SPD, the correspondence from the Plan Administrator, and more.  They are annoyed that I just don't immediately know the answer.  And 100% of the time the question they first pose is not the issue at all. 

It's  like calling your doctor and saying "Doc:  I have a stomach ache.  What do you recommend?"  A doctor friend tells me that there are 250 illnesses or conditions that can cause a stomach ache. 

David     

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Mj1804 - Your initial post did create confusion because the as fmsinc points out - for many industry professionals the term "annuity" is used ONLY with pension plans. Pension plans, by their very nature, are required to be structured with an annuity. So if someone tells me they have both an annuity plan and a pension plan I would think they aren't familiar with retirement plan terminology. 

It is not common anymore for 401(k) plans to have an annuity provision, and even if they do, in the industry they aren't referred to as "Annuity" or "Annuity plans" because that makes it sound like a pension plan, and folks don't want to conflate the two.

If your first QDRO covered a 401(k) plan that happened to have an annuity provision , for clarity's sake, it would be much more helpful to refer to it as a 401(k) plan, and NOT use the term annuity. 

Something like:

Plan A: 401(k) Plan 

Plan B: Pension Plan

The concern / question I think some of the commentators are getting at is - Do/.did you really have two retirement plans? Or is there only one plan?

Many of us are used to participants, employers, even occasional advisors, CPAs, or attorneys, not understanding the technical terminology of retirement plans. If it isn't something they work with everyday it tends to all get jumbled up when they ask industry professionals questions. Then someone like fmsinc has to try to decipher what they really are asking about, and its hard to do without more information. 

I'm a stranger on the internet. Nothing I write is tax or legal advice. 

I'd like a witty saying here, but I don't have any. When in doubt, what does the plan document say?

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I should clarify - a regular plain old annuity, the private personal kind purchased through an insurance company, is not what any of us are talking about. That kind of annuity account /policy would not be subject to a QDRO .

Since you mention the annuity being subject to the DRO 20+ years ago, the assumption is that the annuity is part of some sort of tax qualified retirement plan, and NOT just a personal annuity. 

If it was just a personal asset - the DRO wouldn't have been necessary (though it would probably still have been addressed by the property settlement agreement).  

I'm a stranger on the internet. Nothing I write is tax or legal advice. 

I'd like a witty saying here, but I don't have any. When in doubt, what does the plan document say?

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2 hours ago, fmsinc said:

The first sentence of his post included, "My ex- wife received a portion of my annuity

I'm not trying to argue with you but I think he did clarify that, enough to get to the gist of the problem anyway.  And of course he's unfamiliar with the terminology; he's a participant, not a pension pro.  

I don't think we really want to be reading the DRO(s) and divorce decree, do we...?

Anyway, I thought your list of demands was kind of off-putting and I would have ignored it myself.  Maybe it was the fact that it was bold, which I understand was to differentiate it from the other text. 

(If I can say all of this without being annoying myself.)

Ed Snyder

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4 minutes ago, Bird said:

Anyway, I thought your list of demands was kind of off-putting and I would have ignored it myself.  Maybe it was the fact that it was bold, which I understand was to differentiate it from the other text. 

I agree with you Bird, I found fmsinc's comments antagonistic. It is hard to read tone into electronic communications, but the BOLD lettering, and demanding nature of the comments did not seem helpful to me. I was hoping my comments would provide some clarity, and the original poster could choose to clarify or not clarify as they felt appropriate. Hopefully i'm not coming across as annoying either. 

Edit : based on my earliest comments - I think I got the gist of his question fine enough too. 

I'm a stranger on the internet. Nothing I write is tax or legal advice. 

I'd like a witty saying here, but I don't have any. When in doubt, what does the plan document say?

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It has become common in our social media world the equate the use of ALL CAPS BOLD as somehow shouting or using aggressive language.  I have used it for a very long time only for the purpose of making my interlineations NOTICEABLE.  Nobody that knows me would imagine that I was shouting at anyone. Now you know.   So you will no longer misinterpret my intentions. 

So far as the "demanding" accusation is concerned, if someone is going to ask for my assistance I expect that they will provide the information and documentation I need to provide that assistance, especially when I am doing so gratis.  These are people with issues dealing with what, for most people, is one of their two highest value assets. It is not too much to expect them to cooperate.  

I am the founder and moderator or a family law listserv in Maryland with about 1,470 family lawyers.  They all know that if they post a question I will hold them to the high standards that were set for me by the Jesuit priests I was lucky enough to have as professors at Georgetown Law, and the United States District Court judges I encountered in DC and Maryland; including a health dose of the Socratic method.  

 David        

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