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QDRO questions going through divorce Fidelity Pension

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My soon to be ex has a 401K which he has almost nothing left in it due to him empting the account. The state where he filed doesn't seem to care. He has about 200,000 in his pension (which seems odd for working there since 2007.) I am worried about my future since I wasn't allowed to work for 30 years, so nothing in retirement myself. I have asked my lawyer several times about his pension and if I can roll it over to something I can have in my name. She doesn't seem to understand the question. She did send me a copy of paperwork from a subpoena to Fidelity stating different scenarios one being if he was terminated in July if he was terminated in the year he turns retirement age. I didn't understand the termination part of it. Anyway, it didn't state anything about being able to take (I am assuming 50% out) So I am in the dark about what should I make sure the QDRO states. I know its up to the plan administrator along with the court. I just want to make sure I have all the info I can. I have reserched about being able to cash out (meaning after the QDRO is filed I get a cash out and not having to pay the 10% tax fee) but I am not sure if this is just a 401K or if that includes the Pension as well? TYA 

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Yep.  Also,

  • request a copy of the plan's QDRO procedures.
  • if your spouse worked for more than one employer, don't forget to include any others in your review/research.

I'm a retirement actuary. Nothing about my comments is intended or should be construed as investment, tax, legal or accounting advice. Occasionally, but not all the time, it might be reasonable to interpret my comments as actuarial or consulting advice.

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9 hours ago, QDROphile said:

Essentially, I agree with, “Get a different lawyer.” Maybe it does not have to be so dramatic. In the retirement professionals community, both lawyers and non-lawyers have a general expectation that most domestic relations lawyers do not understand retirement plans, and pension plans in particular (because they also include actuarial principles). Most domestic relations lawyers also know that they do not understand retirement plan law. Consequently, domestic relations lawyers will have a relationship with one or more lawyers who understand retirement plans and QDRO law. Before even contemplating a QDRO one must consider the design and provisions of the retirement plans to be divided in the divorce and how to measure and describe the interest that each party in the divorce will have in the plan or plans. The primary divorce lawyer can associate with, or be advised by, a lawyer who is competent to work with retirement plans, ultimately including drafting a QDRO. If your lawyer seems lacking in understanding or answers that can be conveyed to you so that you understand, then your lawyer needs to connect with another lawyer for help with the retirement plans. Or you get another lawyer.

My primary concern is not with a divorce lawyer that doesn't understand retirement plans, but one that apparently won't even acknowledge it and bring in someone else. It's just ridiculous.

William C. Presson, ERPA, QPA, QKA
C 205.994.4070


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Good Morning! 

Thank you for all of your responses. I appreciate all of them.


I might not be explaining correctly my questions well.  This is my second laywer my first Laywer was I think working for my husband. lol He agreed to the lowest amount one could possibly pay for child support and he told me this was the best case scenario. Which after I did some research was not the case. My ex is making 200,000 a yr. he is paying 300.00 for our son. So this new lawyer is by far a better lawyer. Also I live in another state. So communication can be difficult 

Unfortunately, I cannot obtain employment. I am not sure if it’s my age (54). My being unemployed for the length of my marriage (30 yrs) or not having any true skills. Whatever the case,  I am in a state of panic. It is to the point where I am not sure how I’m going to pay for rent this month. So having cash in hand is as important as having a retirement. 

The main question is the other two lawyers stated that you cannot cash out a pension. being in the financial situation I’m in now and being his 401(k) only has $5000 left in it from all the loans and withdrawals he has made over the past two years. ( The first laywer I obtained didn't file a financial Protective order. I’ve never heard of such a thing, but I guess in the state he filed the divorce in must be filed with the court or you can go “hog wild”with your money.) 

So long story short (not the case) lol what I am wanting is I would like to control the money in the pension. (Meaning my % of it)  I like to roll my portion of the pension over to my own retirement (IRA) so I can keep my eyes on it. I would also like to obtain cash so I don’t have to worry about financial issues. I’ve been doing DoorDash and the like, but is not enough income. I would like to be able to pay for rent in full for a year so I can go back to school. I cannot take out any more student loans since I owe almost the max due to compound interest over 10 yrs. Since there was no payments made on them. 

Can I do this with the pension? 

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It depends on the terms of that pension plan. Some allow QDROs to paid out in a lump sums to the alternate payee at any time after the DRO is qualified by the Plan Administrator and becomes a QDRO. Other plans restrict the timing to when the employee reaches the plan's earliest retirement age and may not have a lump sum payment option, requiring the alternate payee to receive an annuity.

Kenneth M. Prell, CEBS, ERPA

Vice President, BPAS Actuarial & Pension Services


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Would this help? This is from Fidelity sent to my lawyer, then sent to me. I am not sure why they are using the word "terminated" 

Your Modeling Assumptions
The following information was used for the purpose of calculating your pension benefit(s) payment amounts. The scenarios reflect a benefit commencement date and the assumptions associated with that date. The calculation also assumes the current provisions of the Plan will remain the same and you will continue your employment until the date you selected. Should you have questions regarding your modeling calculation, please call the BP Retirement Services at Fidelity at 877-272-3334 and provide the scenario number listed below.
Scenario 218 Termination date......
...... 06/30/2024..... Beneficiary relationship
Not Provided Beneficiary birth date.
Not Provided 30 Year Treasury Rate
. 4.36% ....
1st Corporate Bond Segment Rate
2nd Corporate Bond Segment Rate
. . 5 . 1 9 %
3rd Corporate Bond Segment Rate....................5.37%...
Scenario 219 .....08/31/2033
Not Provided
Not Provided ......4.36%
......4.99% ..... 5.19% . 5.37%

Partial Lump Sum
Benefit Commencement Date:
Your age at Benefit Commencement Date.....
.$1,684.65. .100%
Scenario 218 .... 07/01/2024. 55.833 .......
50% Partial Lump Sum (Spousal consent required, if married) (Segment interest rates)
One-time payment to you ...$147.885.24.
Relative value* Residual Annuity
•N/A .


The other thing is the benefit stated I was, but now it looks like there is none I did leave out some detail due to privacy. 

I still have not heard anything from my lawyer. 

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LadyjaneM10, your lawyer has to handle this. Your lawyer may want to co-counsel an ERISA attorney who can help with this, or seek the aid of an actuary for expert assistance.

Luke Bailey

Senior Counsel

Clark Hill PLC

214-651-4572 (O) | LBailey@clarkhill.com

2600 Dallas Parkway Suite 600

Frisco, TX 75034

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LadyjaneM10, it sounds like are referencing both the BP 401k and a BP defined benefit plan (thus the segment rates in your last post outlining the possible partial lump sum with residual monthly pension). These are two separate and distinct types of retirement accounts for which Fidelity handles the QDRO administration.  I agree with Mr. Bailey in that you need to have your attorney help you on this.  If your share of the 401k was cashed out by your ex then it is possible to increase your award from the defined benefit plan (if that is the only asset left), such that you get your share of the pension plus your share of the cashed out 401k all from the defined benefit (provided there is a sufficient accrued benefit under the defined benefit plan to satisfy this actuarial adjustment).

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