Drafting a Domestic Relations Order for Homeless Client

[Eric Hanford]

I am a Paralegal and I am assisting a homeless woman divorcing her husband. In the Domestic Relations Order, should I include the total months of marriage and total months of employment so that the Plan Administrator will know how to divide benefits?

[QDROphile]

You have to start from the interest awarded to your client in the divorce proceeding. That award is then described in the domestic relations order that is submitted to the plan. If the court defined your client’s interest as a function of months of marriage and months of employment, you might use those terms in the domestic relations order to inform the plan as to the proper division of the benefit. You might simplify the terms and just provide fractions if you know what you are doing. If you don’t know what you were doing, get some help. Understanding division of pension benefits in particular is beyond most lawyers.

[fmsinc]

The QDRO should contain the date of the marriage and the date of divorce. The plan administrator will know the number of months during that period that the participant accrued creditable service toward retirement. The plan administrator will also know the date on which the participant started to accrue credible service toward retirement and the date of his retirement which may not be until some point in the future. The plan administrator will then make the computations. 

 

[Luke Bailey]

You and the attorney for the participant, or the court if this is contested, will decide how to divide the benefit. Determining the portion of the benefit that accrued during the marriage and giving half of that to each party is a rational approach and a possible starting (and ending) place, but ultimately it is a negotiation and the division of other assets could have an effect on how the retirement benefit should be divided.

[Peter Gulia]

If the proposed alternate payee is homeless, here’s a detail one might tend to.

An order is a QDRO only if the order, along with meeting other conditions, “clearly specifies . . . the name and mailing address of each alternate payee[.]” ERISA § 206(d)(3)(C)(i), 29 U.S.C. § 1056(d)(3)(C)(i). The address recited in an order need not be the address of a place where the alternate payee resides. It is enough that the address is a mailing address at which the alternate payee could receive mail. See Mattingly v. Hoge, 260 F. App’x 776 (6th Cir. Jan. 8, 2008).

In my experience, such an address sometimes is an address of a lawyer, paralegal, certified public accountant, enrolled actuary, investment adviser, or other person who has the alternate payee’s authority to receive mail, at least regarding the domestic-relations-order matter.

I’ve also seen such a method used when an alternate payee has a residence address but prefers that the information not become known to the participant.