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Maryland QDRO query

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My ex-wife was awarded a portion of my Pension and 401k Balance over 20 years ago when were divorced. The QDROs were never filed, but I am just receiving a notice in the mail regarding a hold on my 401k account as a result of ex-wife submitting a draft DRO. My ex-wife was also entitled to "any benefits under Pension plan." Does that mean Survivorship and is it too late for her to filing these QDROs 20 years later?


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You do not provide enough information for an informed response, which you should not rely on anyway and you need legal counsel if you object to what is happening currently or do not understand it. I can tell you with respect to the 401(k) plan that federal statutory law is silent about time gap between a divorce judgement and the submission of a domestic relations order that is intended to effect that judgement with respect to the plan. The plan is unlikely to look askance unless certain things have happen under the plan in the interim. However, that DRO does have to be issued by a court and that court and relevant sate law may have questions. I do not speak to Maryland domestic relations law. Whenever there is a very long time between the awarding of a right or benefit and the actual assertion of that right or claim for the benefit, one may consider asserting equitable defenses either in the state court or to the plan -- but don't expect much protection from the plan. "Equitable defenses" is for your lawyer to explain.  

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You are in luck Mr. Stevenson since I am a Maryland attorney.  

1st:  The case of Potts v. Potts decided in 2002 held that survivor benefits are a form or marital property separate and apart from retirement annuity to which it is attached, and that that if the Agreement of the parties or the Judgment of Absolute Divorce (JAD) do not specifically mention survivor annuity benefits, the former spouse does not get them.....period, full stop.   

2nd:  It is never too  late to file a QDRO in Maryland.  The same Potts case held: ""We have found no case, statute, or rule in Maryland or elsewhere that requires a QDRO to be filed within a specific time frame after a judgment of absolute divorce has been entered. Therefore, the timing of the presentation of the QDRO is dependent on the diligence of the parties and their counsel or the assertiveness of the trial court."  So yes, she can file these QDROs even at this late date. 

3rd: With regard to your pension plan, the JAD likely gave her  50% of the "marital portion" of your pension, if , as and when you receive it.  So the  formula would be 50% of the gross amount of your monthly  pension multiplied by a fraction, the numerator of which is the number of months of creditable service toward retirement earned during the marriage, and the denominator of which is the total number of months of creditable service toward retirement earned at the the time of your retirement.  It may not be as much as you think.  Another possible issue impacting the survivor annuity in Federal plans, e.g., FERS or CSRS, is whether or not she remarried prior to age 55.  

4th: As far as the 401(k) is concerned, the issue will be whether or not the amount she receives will be locked into the amount or percentage set forth in the JAD or whether her share will be adjusted for gains, losses and investment experience from the valuation date to the date of actual transfer to her.  I would have to see the JAD to comment further on that. 

Bottom line: Do now be surprised if the Plan Administrator puts a  hold on your benefits.  Their ass is on the line and they do not want to make a mistake.  

You can reach me at 301-947-0500 in Gaithersburg. 

David S. Goldberg



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Thank you so much sir. I really do appreciate all of your great help! My ex-wife did not remarry and I did a rough calculation that she will receive $1218 out my $6187 pension. The question is about survivor benefits. I met with a lawyer today who said if that the QDRO would likely result in survivor benefits because the JAD says she is entitled to "any benefits under my pension plan" which included Survivor Benefits, among other things.

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  • 4 weeks later...

Jack Stevenson:

Does the JAD specify the percentage survivor annuity amount?  It can be from $1.00 a month to a maximum of 50% of the amount of your self only annuity.  If it is not addressed CFR default at OPM is the maximum amount. 

Does the JAD specify who pays for the cost of the survivor annuity?  In not, then the CFR default at OPM is that YOU, the employee, pay the full amount.  So if your retirement annuity is $6187/month, the maximum survivor annuity is $3,094/month, the cost of the survivor annuity will be $619/month and will be taken from YOUR share of the retirement annuity.  

On top of everything else, if the JAD did not reserve jurisdiction for the court to enter the QDRO, it may not be able to do so at all.  


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