Defined Benefit QDRO

[dmom]

I'm currently going thru a divorce.  No excuses but trusted a few people along the way to guide me and now I'm very confused.  Signed Stip of Settled in regard to my ex's Defined Benefit Plan says Husband will be required to take a 100% survivor option with a pop up.  My ex's plan has the Shared Method and Separate Interest Method.  We hired a third party to prepare the QDRO.  I was told based on that language i had to go with the Shared Method.  There was no mention of preretirement survivor benefits mentioned.

We went back to court a couple of weeks ago and amended the Stip of settlement to add Plaintiff will agree that Defendant is a surviving spouse for the purposes of Qualified PreRetirement Survivor Annuity QPSA.  Plaintiff is directed to Elect the QJSA if there is post retirement death.

Defendant can elect to receive her benefits at the age of retirement.

I'm the Defendant.  I was married for 28 years to a Narcissist.  If I am forced to go with the Shared Method, he will never retire.  Can anyone offer me any guidance as I'm feeling very defeated.

[QDROphile]

You do not want to rely on any prospective action by your former spouse with respect to benefits you expect to receive.  That means you cannot count on an  election of a QPSA or QJSA., even if the participant has been ordered to make the election.  The plan will not give effect to the order concerning the election.  It sounds like you do not want that as part of what you have been awarded anyway.  More than that, I am not saying.  You seem have some idea of the benefit options, but you also seem to be resigned to  get what someone else says. Where is you lawyer in all this?  I am perplexed about what is going on and what you want, so I am not going to speculate or fill the gap apparently left by your lawyer.

[Larry Starr]

1 hour ago, dmom said:

I'm currently going thru a divorce.  No excuses but trusted a few people along the way to guide me and now I'm very confused.  Signed Stip of Settled in regard to my ex's Defined Benefit Plan says Husband will be required to take a 100% survivor option with a pop up.  My ex's plan has the Shared Method and Separate Interest Method.  We hired a third party to prepare the QDRO.  I was told based on that language i had to go with the Shared Method.  There was no mention of preretirement survivor benefits mentioned.

We went back to court a couple of weeks ago and amended the Stip of settlement to add Plaintiff will agree that Defendant is a surviving spouse for the purposes of Qualified PreRetirement Survivor Annuity QPSA.  Plaintiff is directed to Elect the QJSA if there is post retirement death.

Defendant can elect to receive her benefits at the age of retirement.

I'm the Defendant.  I was married for 28 years to a Narcissist.  If I am forced to go with the Shared Method, he will never retire.  Can anyone offer me any guidance as I'm feeling very defeated.

To add to what QDROphile told you, you need competent counsel, whether an attorney or retirement expert (like some of us who do extensive QDRO work FOR attorneys) to guide you. There are a number of "third party" QDRO preparers who know very little about how this all works, especially when dealing with a defined benefit plan. Suggest you might want to find someone who can advise you appropriately, because the truth is that is what you need at this point.  

[dmom]

Unfortunately, my lawyer has not been helpful.  I do not want to wait until my ex retires.  He served me in April of 2017 and we are still not divorced.  I want to have the separate interest method but pension person is saying because on original stipulation saying Husband will be required to take a 100% survivor option with a pop up, I do not have that option.

[Larry Starr]

On 10/28/2019 at 8:22 PM, dmom said:

Unfortunately, my lawyer has not been helpful.  I do not want to wait until my ex retires.  He served me in April of 2017 and we are still not divorced.  I want to have the separate interest method but pension person is saying because on original stip saying Husband will be required to take a 100% survivor option with a pop up, I do not have that option.

Then you need to find a lawyer who will be helpful; I'm sorry, but you need competent advice if you want to make your voice heard.  Whatever was in the stip (what's a stip?  I doubt that it's actually titled "Stip of Settled" as you indicate in your first posting.  I'm assuming it is some sort of property settlement?  But nothing is final until the judge signs it, so you can still argue for something else.  But I'm afraid this forum is NOT going to be able to help you any further.  Best of luck.

[Lou S.]

On 10/28/2019 at 8:22 PM, dmom said:

Unfortunately, my lawyer has not been helpful.  I do not want to wait until my ex retires.  He served me in April of 2017 and we are still not divorced.  I want to have the separate interest method but pension person is saying because on original stip saying Husband will be required to take a 100% survivor option with a pop up, I do not have that option.

Does the Plan allow for benefits to commence at NRA even if the participant is still working? If so perhaps a compromise might be to have your soon to be ex-husband agree in the QDRO that benefits will not be delayed past his NRA even if he continues to work. QDROs are not my area of expertise so I'm not sure this is possible. I know the QDRO can't force benefits that are otherwise not payable so it may not be an option.

[Larry Starr]

9 minutes ago, Lou S. said:

Does the Plan allow for benefits to commence at NRA even if the participant is still working? If so perhaps a compromise might be to have your soon to be ex-husband agree in the QDRO that benefits will not be delayed past his NRA even if he continues to work. QDROs are not my area of expertise so I'm not sure this is possible. I know the QDRO can't force benefits that are otherwise not payable so it may not be an option.

LIke I said, you need a COMPETENT lawyer in this area; someone for whom it IS an area of expertise (or they have advisors like some of us who ARE experts in the area) so as to determine what your options actually are. Again, best of luck.

[Lou S.]

23 minutes ago, Larry Starr said:

LIke I said, you need a COMPETENT lawyer in this area; someone for whom it IS an area of expertise (or they have advisors like some of us who ARE experts in the area) so as to determine what your options actually are. Again, best of luck.

I agree with you 100%. I was just throwing out an idea she could run by competent QDRO counsel to see if that might be an option that makes all parties happy. It seems to me her 2 biggest concerns are preserving the 100% survivor option with popup while also avoiding the concern that her ex might delay benefits as long as possible to keep her from receiving them.

But maybe I misunderstood the OPs question.

[fmsinc]

If you will provide the name of the Plan somebody in this blog might be able to respond to your question.  You have suggested that your husband's plan offers a 100% survivor annuity plan with a pop-up.  The term "pop-up" is most often found in state, county or municipal defined benefit plans, not in ERISA qualified plans.   On the other hand most state, county or municipal plan do not provide an option for a separate interest allocation of benefits.  And most non ERISA plans do  use the term QPSA or QJSA.  They are almost always limited to a shared allocation payable if, as and when the Participant retires and starts to draw his pension.  So it is hard to understand what you are talking about. 

If your stipulation said "shared", then that's the deal you made and you are stuck with it.  It doesn't matter if your lawyer was competent of not, that is the deal you are made.  It may be the best option.  But it may not.   But in all events you cannot insist that it be changed to a separate interest allocation.  There are pros and cons to each. See the attached Memo - Shared v. Separate - that also discusses the other attached Memo that addresses your right to ask that he be required to pay you your share of his retirement when he is eligible to retire even though he chooses NOT to retire.  See the attached Memo - Gilmore Approach. 

The law varies from state to state.  Tell me where you case is pending and perhaps someone can direct you to a competent practitioner in your jurisdiction.   

David Goldberg

Gillmore Approach - 5-23-19.pdf Shared v. Separate v. Lump Sum v. Gilmore, and more.pdf

[dmom]

Thank you all for responding.  Sorry I haven't been on the site in a while.  My attorney had to file a motion for many reasons of my ex not complying with our Stipulation of Settlement.  My ex' attorney was not responding to any emails or letters in regard to the QDRO.  We decided to ask the court if we could amend the Stipulation of Settlement to change the language in the paragraph with regards to the Pension Plan.  We are supposed to go to court on Tuesday and this past Friday, his attorney decided to respond and is willing to amend the language to reflect the Separate interest method.  Now I'm just concerned i have the proper wording in the Stipulation of Settlement to cover myself if he should die before the benefits are collected.