Continuing Benefit

Client's former spouse is a member of the NYC TRS Pension Plan, and refuses to sign the QDRO because the continuing benefit (the post retirement annuity payments following death of plan participant) awarded to my client is not multiplied by the coverture fraction that the other benefits (pre retirement death and annuity payments during the life of the participant)  are.

1)What specific point in the the law prohibits the continuing benefit from being multiplied by the fraction?
2)What is the logic behind the law that may prohibit this?

Thanks in advance.

The language of the QDRO will reflect  the agreement of the parties if there is one, or if not, the language of the court in the judgment of absolute divorce. So you are not talking about a matter of law. You are talking about a matter of what was agreed to by the parties or mandated by the trial judge.  

Aside from that, the survivor annuity benefit, which is what you were really talking about, is usually less than the amount of the retirement benefit. Most plans mandate what is known as a 50% joint and survivor benefit, but some plans permit the parties to agree, or the court to award, anywhere from 33% to 50% to 66% to 75% to 100% of the full amount of the retirement annuity. 

What this means is that in most cases the amount payable to the former spouse will be necessarily less than the full amount of the retirement annuity and will more closely approximate the amount she was likely receiving as her marital share during the joint lives of the parties. If you multiply 50% by the coverture fraction, it may reduce it by another 50%.

On I'm not aware of any law, rule or regulation that requires the parties to actually sign off on a QDRO. Most jurisdictions treat a QDRO as an enforcement tool, like a garnishment or an attachment. We normally put approvals on the QDRO not because it's required but as a matter of courtesy to the other counsel. The Department of Labor has a pamphlet that specifically says that signatures by the parties are not required.

Would anyone seriously expect a judgment debtor to be asked to sign a document that attaches his assets or garnishes his pay? Of course not.

File a motion for entry of the QDRO I've done so on many times and the judge has never refused to do so. 

If you have any questions feel free to call me at 301-947-0500. 

David

A person who seeks a New York State court’s order that the Teachers’ Retirement System of the City of New York (NYCTRS) would administer will want one’s lawyers’ advice about New York State law and the Retirement System’s law and procedures.

NYCTRS publishes its TRS Guide to Domestic Relations Orders: https://www.trsnyc.org/memberportal/WebContent/publications/TRSGuidetoDRO.

And notice that the TRS Guide linked above does not refer to the participant and/or spouse signing anything.  It does use the phrase "signed DRO", which refers to the proper court signatory.