QRDO Quandary

Good morning to All,

Have you ever had a case where no DRO or QDRO was ever done, yet the participant is demanding a distribution?  This is a first for me.

One of our clients has a 401(k) plan with a participant who was an unwilling party to his divorce.  He says his ex wife "did it all" - hired the lawyer and paid for the divorce.  The lawyer made a one paragraph passing reference to the participant's retirement account in the Marital Settlement agreement.  "Respondent has a retirement plan with XX Company.  Upon distribution of the funds in this plan,  Respondent will direct the Plan Administrator to divide the funds equally between the Respondent and the Petitioner, that being 50% to each party, however distributed."  That's it.  

The participant has now terminated employment and claims to be in very dire straits and wants his half of his money RIGHT NOW so he can move in two weeks.  He does not know or care how a DRO or a QDRO might eventually be created and he does not particularly care about the rules and regulations we are all trying patiently to explain to him.  He has stated that he most certainly is not going to pay any lawyer to do a DRO.

His HR department knew enough to call me as the TPA, send me a copy of the marital agreement and question whether he wasn't supposed to have a QDRO before anybody could get paid.  I knew enough to alert John Hancock not to process any termination requests from this person and effectively "freeze" his account until we can get this all sorted out.

What the participant wants is for the Plan Administrator (the employer/ Trustee, effectively) to liquidate his account, send half to his ex and half to him, tomorrow if at all possible. 

I do not know of any legal way to accommodate this participant, but I thought I would run it up the flagpole to see if any of you have ever processed a marital division of an account without a QDRO.  I have certainly never heard of any such thing.

Your advice is appreciated, as always.

My guess is the lawyers who know more about QDROs will leave comments at some point but here is my take.

What do we know at this point?

You have a participant who is terminated.  You don't have a DRO or a QDRO.  There might be one coming but you don't know that for sure.

What does the law and plan document say? 

You clearly have a distributable event for this guy that would entitle him to 100% of the funds in the account.   Is there something in the plan document, QDRO procedure or law that says something different? 

I have seen plans with QDRO procedures that say if the plan get notified there might be a future DRO to put a hold on the account for 90 or 180 days.  After that wait the hold is up and the plan goes on using normal procedures.  Does the plan or procedure have any such rule?  If so, follow that rule and part of the document/procedure.  If not, on what basis are you not paying this person 100% of the money in his account? 

A well written document or QDRO procedure ought to guide you through this so let us know what if anything they say.  There is a good chance it answers your question. But at some point the document says this guy is entitled to be paid 100% of the benefit in the plan for him unless someone can point to something that says otherwise. 

That is how I would look into this. 

As for your final question:  No I don't think this guy can arbitrarily say just pay me 50% and wait for the ex-spouse to show up with a QDRO to pay the other 50%.  He is entitled to 100% of the money since he is termed or something in the plan documents is saying you can put a hold until a QDRO is produced or some time limit is hit.  

Pardon me while I bark first.  Your ignorance about QDRO law and procedures probably prevented the practical solution that I offer below. Your should refer QDRO questions out to someone capable of advising about QDRO administration.  That said, your standard of understanding and competence is about average in the industry, so don't take it too hard.

What should have happened is the participant should never have shown the papers to the plan.  The order (and it is a domestic relations order) applies only to the participant and has nothing to do with the plan.  It orders the participant to pay half of the distribution to the former spouse.   This may be stupid or pretty sneaky on the part of the former spouse; it changes the tax consequences and I pass on that issue.  The direction has nothing to do with the plan.  But the participant DID give the order to the plan, so next what should have happened is the plan (or its adviser) should have recognized that the plan was not implicated and bent the strict processing procedure and conclude that it has not received a domestic relations order and therefore it should process a distribution to the participant in normal course.   The plan should not accommodate the participant's request to split the distribution check in any way -- the plan needs to completely disregard the order to keep itself clear.  The entire distribution is to the participant -- just as the order says.

You probably cannot now restore Humpty Dumpty.  You have started processing the order as a domestic relations order.  You may have to continue, especially since you jerked  John Hancock's chain.

If you understood QDRO processing, there is still a way to get the participant a distribution of half of the account right away, even while processing the domestic relations order that is not going to be qualified.  I will refer you to section 414(p)(7) to give you ideas, but I am not going to spell it out.  You need a shock to your system to make you understand that you are not competent to deal with QDROs and you should seek professional help that you or the plan pays for to extricate yourself from this mess.  Or not.  You can just let the participant dangle while you process the domestic relations order under usual procedures.  The participant brought it on himself by not participating in the divorce.

Hi ESOP Guy,

Excellent and thought provoking answer that has raised a host of new questions.  The plan document and the written QDRO procedure are just peachy once we actually have a DRO.  They are both silent on what happens when you know a DRO might be in the works.

Does that little paragraph I quoted from the marital settlement agreement somehow constitute a DRO that just doesn't happen to be a QDRO yet because it does not contain all the ingredients to be qualified?  I don't know.

I don't know what the legal obligation of the employer was to send us the marital settlement agreement and I don't know what our legal obligation is to stop anything from happening to the funds until the issue can be addressed.

Looking at it from your perspective, maybe both we and the employer are in the wrong for freezing his account, since there is not DRO.  (Unless that little paragraph is a DRO).

3 minutes ago, ldr said:

They are both silent on what happens when you know a DRO might be in the works.

That is 100% the intent of the person who drafted the document / QDRO procedure.  There is nothing in the law that allows you withhold funds from a participant with a distributable because you know or suspect or have heard rumors of a DRO maybe being drafted.  Language like yours is clear cut.  If you have a DRO you hold the assets until you determine if you have a QDRO.  If you dont have one, you pay the participant.  

10 minutes ago, ldr said:

I don't know what our legal obligation is to stop anything from happening to the funds until the issue can be addressed.

Unless your document tells you otherwise, you don't have one.  In fact, you would be withholding a distribution to a participant with a valid claim for the benefits.

At the risk of being picky, before making any payment to the participant, make sure he has reached a date on which payment could be made.  Just because he "...has now terminated employment..." does not automatically mean he can be paid now.  RTDD.

@RatherBeGolfing, thank you.  That makes sense.  @david rigby, I see your point.  Under the terms of the plan document, he is now eligible to be paid out, when he has completed his withdrawal form.  He would have been treated like any other terminated participant and paid his full vested account balance "as soon as administratively feasible" after his date of termination and completing his form, had it not been for his HR department sending us his marital settlement agreement.

I understand all of the kind advice given, and I understand QDROphile's blistering, scathing attack as well.  From what you all are saying, it would appear that the participant is entitled to withdraw 100% of his funds.  The problem I see with this is that If the participant does not give his ex-spouse 50% of the proceeds, are we as the TPA or the HR department of the client somehow going to be held liable when the ex-spouse comes complaining?  We can't say we didn't know.

It would appear to be time to consult with the ERISA attorney we have on retainer for thorny issues.

3 minutes ago, ldr said:

... had it not been for his HR department sending us his marital settlement agreement.

If the document/QDRO procedures require receipt of a QDRO, the HR departments actions here does not matter

4 minutes ago, ldr said:

The problem I see with this is that If the participant does not give his ex-spouse 50% of the proceeds, are we as the TPA or the HR department of the client somehow going to be held liable when the ex-spouse comes complaining?

Not if you followed procedure.  Ex spouse should have acted to protect her entitlement.  Her legal issues are with participant.

RatherBeGolfing, I believe you, but we still have a call in to the ERISA attorney just to see what her take on all this is. I will post her reply if it turns out any differently than what has been discussed so far.

5 minutes ago, ldr said:

RatherBeGolfing, I believe you, but we still have a call in to the ERISA attorney just to see what her take on all this is. I will post her reply if it turns out any differently than what has been discussed so far.

 

The ERISA attorneys I know personally tell me all the time it is often cheaper to call before then after and a fix is needed.  Over the decades experience has taught me they aren't being self-serving here.  

2 minutes ago, ldr said:

RatherBeGolfing, I believe you, but we still have a call in to the ERISA attorney just to see what her take on all this is. I will post her reply if it turns out any differently than what has been discussed so far.

 

Oh I would too, no worries.  Beyond that, I also think a review of your internal procedures would be prudent.  I won't be as scathing as @QDROphile, but I think this case has illustrated that you may have a knowledge gap that should be filled, or certain situations should be turned over to someone else. 

Personal insight from me for what it is worth. 

I would see if the powers to be at your firm are wiling to start to work on a basic QDRO policy you can offer to your clients.  You can use this to see an area where it would have been nice to have had a written procedure for the client in place before the fact.  

I will be the first to admit not all the ESOP clients I work with have a good QDRO policy.  As you say at times it takes all you have to keep up with the normal day to day flow of things. 

6 hours ago, ldr said:

Good morning to All,

Have you ever had a case where no DRO or QDRO was ever done, yet the participant is demanding a distribution?  This is a first for me.

One of our clients has a 401(k) plan with a participant who was an unwilling party to his divorce.  He says his ex wife "did it all" - hired the lawyer and paid for the divorce.  The lawyer made a one paragraph passing reference to the participant's retirement account in the Marital Settlement agreement.  "Respondent has a retirement plan with XX Company.  Upon distribution of the funds in this plan,  Respondent will direct the Plan Administrator to divide the funds equally between the Respondent and the Petitioner, that being 50% to each party, however distributed."  That's it.  

The participant has now terminated employment and claims to be in very dire straits and wants his half of his money RIGHT NOW so he can move in two weeks.  He does not know or care how a DRO or a QDRO might eventually be created and he does not particularly care about the rules and regulations we are all trying patiently to explain to him.  He has stated that he most certainly is not going to pay any lawyer to do a DRO.

His HR department knew enough to call me as the TPA, send me a copy of the marital agreement and question whether he wasn't supposed to have a QDRO before anybody could get paid.  I knew enough to alert John Hancock not to process any termination requests from this person and effectively "freeze" his account until we can get this all sorted out.

What the participant wants is for the Plan Administrator (the employer/ Trustee, effectively) to liquidate his account, send half to his ex and half to him, tomorrow if at all possible. 

I do not know of any legal way to accommodate this participant, but I thought I would run it up the flagpole to see if any of you have ever processed a marital division of an account without a QDRO.  I have certainly never heard of any such thing.

Your advice is appreciated, as always.

ESOP gave gave you a great answer; the other responses have also pretty much hit the target EXCEPT for the comment about now that you have started dealing with a DRO with Hancock you somehow are stuck.  No you are not, and you need to tell Hancock there is no QDRO.  The spouse's problem is with HER LAWYER; she (and her lawyer) needed to perfect her right to 1/2 of his retirement money. There is a very specific legal process for that (it's called a QDRO) and they did not do that.  Barring that, there is NO QDRO; he is not married; he can get all his money and then she will have to sue him for her share.  

The lawyer who wrote this: "Respondent will direct the Plan Administrator to divide the funds equally between the Respondent and the Petitioner, that being 50% to each party, however distributed" clearly did not know what he was doing and probably is guilty at a minimum of malfeasance and more likely malpractice.  But that's NOT the plan's issue.  A marital settlement document cannot authorize the participant to tell the PA to do something that is not legally permitted.

Larry, thank you for a great response too.  Now in the meantime, the ERISA attorney and HR lady from the client's office have weighed in and the results are as follows:

The ERISA attorney actually said that it was "probably prudent" of us to have had John Hancock freeze the account until we could see what was happening.  She went on to suggest that the participant either get an attorney to do the DRO or take a stab at filling out his own DRO and getting the judge to bless it as a QDRO, AFTER we compare it to a checklist of ingredients to be sure everything is in it. (This is a very poor state where a lot of people do their own legal work).  The incentive to do this is taxes.  The participant's account has $60,000 in it.  ERISA attorney agrees that as it stands right this minute, he does indeed have a right to a total distribution, but that he will pay 20% up front to the feds, he will owe something to the state whether he pays it now or at the end of the year, and he will also owe the 10% penalty for not being 59.5.  He will be paying the taxes for both himself and his ex-wife.  With so much to lose, he has every incentive to get a DRO one way or another.  

Meanwhile HR lady told us that the reason she sent us his marital settlement agreement was that she had recently been through a divorce and she recognized the document as a boilerplate, do it yourself divorce document.  She knew that the part about the retirement plan couldn't possibly be "right".  She had also tried unsuccessfully to persuade the participant that he should not be paying his ex-spouse's taxes for her, but he didn't understand her.

We have advised the participant that he can take his full distribution, pay all of the taxes for himself and his spouse, or, he can come up with a DRO and avoid paying her taxes.  It's his choice and we will do whatever he decides he wants.

It's been an interesting day!  Thank you to everyone who helped with the topic.

11 hours ago, ldr said:

Larry, thank you for a great response too.  Now in the meantime, the ERISA attorney and HR lady from the client's office have weighed in and the results are as follows:

The ERISA attorney actually said that it was "probably prudent" of us to have had John Hancock freeze the account until we could see what was happening.  She went on to suggest that the participant either get an attorney to do the DRO or take a stab at filling out his own DRO and getting the judge to bless it as a QDRO, AFTER we compare it to a checklist of ingredients to be sure everything is in it. (This is a very poor state where a lot of people do their own legal work).  The incentive to do this is taxes.  The participant's account has $60,000 in it.  ERISA attorney agrees that as it stands right this minute, he does indeed have a right to a total distribution, but that he will pay 20% up front to the feds, he will owe something to the state whether he pays it now or at the end of the year, and he will also owe the 10% penalty for not being 59.5.  He will be paying the taxes for both himself and his ex-wife.  With so much to lose, he has every incentive to get a DRO one way or another.  

Meanwhile HR lady told us that the reason she sent us his marital settlement agreement was that she had recently been through a divorce and she recognized the document as a boilerplate, do it yourself divorce document.  She knew that the part about the retirement plan couldn't possibly be "right".  She had also tried unsuccessfully to persuade the participant that he should not be paying his ex-spouse's taxes for her, but he didn't understand her.

We have advised the participant that he can take his full distribution, pay all of the taxes for himself and his spouse, or, he can come up with a DRO and avoid paying her taxes.  It's his choice and we will do whatever he decides he wants.

It's been an interesting day!  Thank you to everyone who helped with the topic.

I think the answer you have gotten is perfectly in line with just about what everyone said.  If he doesn't want to get the QDRO done so he can save paying her taxes, then he gets the whole amount distributed. However, if he is going to give her half as the property settlement contemplated and is not trying to stiff her (which it appears is the case from what he has previously requested), he can certainly pay her the half AFTER THE TAX BITE so it doesn't cost him extra. I haven't seen that mentioned as an option, but I think it is absolutely there for him.

One hopes that the participant will receive a copy of the "Special Tax Notice" so he will have some information about taxation.  Perhaps he will even consider doing a rollover, thus giving him a greater degree of control over the timing of his taxation. Perhaps he will even consider spreading his IRA withdrawals over 2 (or more) years which might help to minimize the tax impact.

16 hours ago, ldr said:

We all were under the impression that once you knew, no matter how you knew, that an alternate payee had a right to part of a participant's account, the account was supposed to be frozen lest the participant run off with the alternate payee's balance.  We now know better, but that doesn't make us stupid, ignorant, or bad administrators.  We are darned good administrators who seldom process QDROs and never pretended to be attorneys.

I never said stupid, ignorant, or bad admins.  I simply stated that this situation has identified an area that you may not be fully equipped to handle and that you should use this to make improvements.  If you only get a handful of QDRO situations each year, maybe it makes more sense for you to outsource the review process instead of filling that knowledge gap in house.  That is not a put down at all, it is just reality and we all have to do it (big and small shops).

RatherBeGolfing, I had no issue whatsoever with anything you said.  My issue is with QDROphile, who is simply rude, and not even 100% accurate in all the advice he gave.  Responses like the one he gave will drive away people who might otherwise have participated on this forum, and will make many more into "lurkers" who read the information but don't dare speak up for fear of being ridiculed for asking questions in the first place.  Even I am going to step back and read from now on and try to solve all of my questions on my own.  I don't say I will never put up a question again - management may require it - but not if I can find any other alternative.

30 minutes ago, ldr said:

RatherBeGolfing, I had no issue whatsoever with anything you said.  My issue is with QDROphile, who is simply rude, and not even 100% accurate in all the advice he gave.  Responses like the one he gave will drive away people who might otherwise have participated on this forum, and will make many more into "lurkers" who read the information but don't dare speak up for fear of being ridiculed for asking questions in the first place.  Even I am going to step back and read from now on and try to solve all of my questions on my own.  I don't say I will never put up a question again - management may require it - but not if I can find any other alternative.

Fair enough, I just wanted to clarify what I said in case it came off as rude or dismissive.  

Good Luck

1 hour ago, ldr said:

RatherBeGolfing, I had no issue whatsoever with anything you said.  My issue is with QDROphile, who is simply rude, and not even 100% accurate in all the advice he gave.  Responses like the one he gave will drive away people who might otherwise have participated on this forum, and will make many more into "lurkers" who read the information but don't dare speak up for fear of being ridiculed for asking questions in the first place.  Even I am going to step back and read from now on and try to solve all of my questions on my own.  I don't say I will never put up a question again - management may require it - but not if I can find any other alternative.

I agree with ldr here.   I don't mind a certain bluntness in answers, I am also very thick skinned so my blunt could be another person's rude.   However, I try do make sure initial answers are not rude.   It is for the reason I think people should be encouraged to answer.  Even if you give a wrong answer you ought to be encourage to give an answer.  You should learn from the other answers if you are wrong but that is really the only way to learn here. 

I know for a fact you can search my answers over the years where I have gone back and edited my answer to say something to the effect:  I have edited my answer to nothing as I have been shown to be wrong in my first answer.  Sorry for the confusion I may have caused.  

That should be good enough and encouraged.  That is how everyone learns. 

And in the case of this forum the number of truly dumb questions is very small.   So all questions ought to be encourage to be asked. 

"My issue is with QDROphile, who is simply rude, and not even 100% accurate in all the advice he gave. "

Yes, I was rude.  It ticks me off when service providers cover matters that look manageable from the middle of the road in an off-the-shelf form-based world.  QDRO practice in particular is tricky because the action is generated (1) in state court under state law either by (2) lawyers who are often not competent in this technical area or (3) untrained individuals in an environment usually involving great (4) emotional and (5) financial stress, all the more reason for the adviser to the QDRO fiduciary to have a broad and deep understanding beyond just the checklist aspects of qualification in order to minimize the complications at the plan level.  Even the Department of Labor gets a lot of QDRO stuff wrong. 

So where are you right now?  Unless you believe that the plan fiduciary or employer should take a paternalistic approach to deciding what is right or best for the participant (which I will not quarrel), the participant has been hung out with at least delay against his rights and wishes (as imprudent as they may seem to the experts).  It could have come out differently, allowing the participant to manage his own life, even in desperation.  The original post seemed to ask how to get the participant what the participant wanted.

I was rude, but I am teachable.  I responded without knowing what might be provided in the plan's  written QDRO procedures, but I bet it would not make a difference, notwithstanding some astute comments by others concerning policies about action to be taken upon the receipt of a domestic relations order or the suggestion of an appearance of a domestic relations order.  What was not accurate about the advice I gave?*

*As for Larry Starr's disagreement with my warning about falling into the pit of unnecessarily engaging John Hancock, I was stating possibilities.  He is correct that John Hancock should simply follow instructions from the appropriate fiduciary, but (1) we have no information about John Hancock's actual role or responsibilities, and (2) a lot of institutional service providers overstep their role and improperly interfere unless they are happy in their own minds with the proceedings.  I wager that Mr. Starr has had to read the riot act to an officious provider about respecting the instructions of the appropriate fiduciary or compliance in some other fashion.

1 hour ago, QDROphile said:

"

*As for Larry Starr's disagreement with my warning about falling into the pit of unnecessarily engaging John Hancock, I was stating possibilities.  He is correct that John Hancock should simply follow instructions from the appropriate fiduciary, but (1) we have no information about John Hancock's actual role or responsibilities, and (2) a lot of institutional service providers overstep their role and improperly interfere unless they are happy in their own minds with the proceedings.  I wager that Mr. Starr has had to read the riot act to an officious provider about respecting the instructions of the appropriate fiduciary or compliance in some other fashion.

 

 

Never more than twice a day! ?

@QDROphile:

On the whole, the outcome so far was extremely positive and came the closest to satisfying absolutely everyone concerned.  Yesterday we sent the participant the John Hancock withdrawal form for himself as a terminated participant, the Special Tax Notice, AND the boiler plate QDRO document that our ERISA attorney allows us to share in special cases.  He called back today with a few questions on how to fill out the form, and then he was off to court to see what he needed to do to get this thing blessed by a judge and turned into a QDRO.  He finally understands the tax consequences of merely taking a distribution of the entire account first and he wants to avoid that if he can.  It remains to be seen whether he can get a judge to approve the DRO in the time frame that he needs.  He's not trying to escape paying the ex-wife.

At the moment, everyone is satisfied.  The client and we as the TPA are not worried about being sued by the ex-wife.  The ex-wife, who, as it develops, has been bugging the participant about getting her share, now knows that there is movement on her case and it should be resolved soon.  The HR department at the client's office knows that we've done our dead level best to take care of both them and the participant and the ex-wife and that's what they wanted.  The participant "gets it" about his taxes and has opted to try to do the QDRO.  He knows he can always default to taking all the money and paying all the taxes if absolutely necessary due to time constraints.

I appreciate the professionals who replied yesterday and I respect their expertise and advice, even if I don't agree with all of them.  My one exception is you.  You may have had some good ideas, but you delivered them with so much venom and sarcasm that the effort to "help" was lost.  If you enjoyed belittling me and my efforts yesterday, then I hope you had fun.  You won't get another opportunity.

As for the accuracy, there were only two points with which I do not agree.  First, the notion that we have no responsibility to do anything at all until we receive a genuine DRO does not play here.  Our client expects us to listen, care, and take action of some sort when she alerts us to the fact that there something in the works with a divorce.  Our ERISA attorney said it was "probably prudent" to freeze the account until it could be sorted out.  We have stopped kicking ourselves for doing that, and we will assess each case individually and make our best decision in the future as to whether to do that or not.  Yes, many of our employers are paternalistic and with good reason.  We have no quarrel with that.  Plus, our clients, and we, do not want to go to court over an ex-spouse's claim to a benefit that we approved to be paid out to a participant.  It really does not matter that we would have technically been "right" because we did not receive a DRO or a QDRO.  We would still have to spend the money, hire a lawyer, and use valuable time to go win the case.  The other point with which I disagree is that "jerking John Hancock's chain" brought down some kind of adverse circumstance.  It did not, and there is no problem there.

And that is all I have to say on this subject, except that I will update the thread when I find out the ultimate outcome of the situation.

Here's how you can make the husband  happy and save him some money.  

First, the Plan is not going to distribute anything to anybody now that they know there is an Agreement that I assume was incorporated in the Judgment of Absolute Divorce.  They will insist on a QDRO so like it or not a QDRO will be necessary.  

Second, if the QDRO is issued by the Court giving 50% to his ex-wife then at that point he can take out his 50%.  BUT, the ex-wife's 50% will be taxable income to her but will not be subject to the 10% early distribution penalty.  AND, his half will be taxable income to him and, if he is under 59-1/2. it WILL be subject to the 10% penalty.   

Third:  Assuming he is under 59-1/2 and therefore subject to the 10% penalty, the parties should amend the Agreement to give her 100% ot the 401(k) and provide that she will divide the net after tax amount she received 50/50 with the husband.  That will save both of them the 10% penalty.  And there are no tax consequences to the transfer from her to him.  

I have done this on may occasions to get money into the hands of the Participant penalty free.  And the law is clear that the Plan Administrator is not required, or even allowed, to look behind the motivations of the parties.  My favorite case is In Brown v. Continental Airlines, Inc., 647 F. 3d 221 (5th Cir., 2011)
https://scholar.google.com/scholar_case?case=4019345202025914766&q=brown+v.+continental+airlines&hl=en&as_sdt=20000003
Continental alleged that a number of pilots and their spouses obtained "sham" divorces for the purpose of obtaining lump sum pension distributions from the Continental Pilots Retirement Plan that they otherwise could not have received without the pilots' separating from their employment with Continental.  The pilots were allegedly acting out of concern about the financial stability of Continental and the fear that the Plan might be turned over to the PBGC and that their retirement benefits would be substantially reduced.   

    By getting divorced, the pilots were able to obtain QDROs from state courts that assigned 100% (or, in one instance, 90%) of the pilots' pension benefits to their respective former spouses.  The Plan provides that, upon divorce, if the pilot is at least 50 years old (as all the pilots in this case were), a former spouse to whom pension benefits are assigned can elect to receive those benefits even though the pilot continues to work at Continental.  (Think “separate interest” annuity allocation.)  The former spouses presented the QDROs to Continental and requested payment of lump-sum pension benefits.  After the former spouses received the benefits, the couples remarried.  
    Continental sought to obtain restitution under ERISA Section 502(a)(3).  The Court of Appeals noted that ERISA § 206(d)(3) limits the QDRO qualification determination to whether the state court decree calls for benefit payments outside the terms of the Plan. It rejected Continental’s expanded reading of § 206, concluding that plan administrators may not question the good faith intent of Participants submitting QDROs for qualification.

    But the opposite may be true in U.S. v. Brazile, No. 4:18CV56 RLW, United States District Court, E.D. Missouri (2018) - that you can find at - 
https://scholar.google.com/scholar_case?case=10011356851935590761&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:14880692104701005079:AAGBfm2qi1_JaXLJvydb4f3quYTnTlLkbA, where Steven Brazile was convicted of securities fraud and, as part of his plea agreement with the Government, he acknowledged owing restitution in the amount of $3,902,880.85.  The Government imposed a lien against his property and rights to property under 18 U.S.C. § 3613(c).  

    It seems that among Steven’s assets was a pension plan.  Steven’s wife, Lorraine, filed suit for divorce and as part of the settlement the parties agreed to the entry of a QDRO transferring 100% of the plan benefit to Lorraine, thereby putting this asset unavailable for Steven’s restitution obligation.  
        “ In September 2017, probation officers conducted a home visit at Defendants' home and discovered that Steven Brazile and Lorraine Brazile are living together with their children and are raising their kids together as a "family." (Id. at ¶ 28) The Government contends that this demonstrates that the Defendants entered into a "sham divorce" to transfer assets to Defendant Lorraine Brazile that could have been used to pay victim restitution. (Id. at ¶ 29) On January 12, 2018, the Government filed a three count civil Complaint against Defendants alleging fraudulent transfer in violation of 28 U.S.C. § 3304. (Id. at ¶¶ 30-44).”

The case came before the court on Steven and Lorraine’s motions to dismiss or for summary judgment.  The judge allowed the case go forward.    

Glad to hear this is being resolved to everyone's satisfaction. I understand that the account owner was pushing for the disbursement, but would like to point out that for the ex to get her share of the funds from an account belonging to her husband, the normal process calls for her lawyer to get a QDRO submitted in a timely manner.  Failure on the part of the lawyer to do that (timely) may be malpractice. (I am not suggesting it is here, but sharing as an FYI.) 

There was a case out of NY where the lawyer for the spouse dallied on getting the QDRO done correctly (he had tried once and was told his document did not satisfy the Plan's standards for a QDRO).  Meanwhile, a few years went by, and the economy tanked; the husband's retirement account lost just under 40% of its value from the date on the Court order.  The wife's attorney had a successful malpractice claim brought against him for failure to act diligently and secure the funds with a QDRO in a timely manner. Attorneys in every jurisdiction in the US have a duty under their respective Rules of Professional Conduct to be diligent, and waiting around when the economy (or other factors, including a spouse who actually intends to abscond with the funds) can negatively impact the value of the awarded property, is a failure of the standard of care he/she owes the client.   

I would be pleased with a happy outcome.

If your plans are going to take action, particularly restricting accounts, the written QDRO procedures must spell out the circumstances and the procedure.   And that is not the best policy or protection for the plan.  It is a suggestion of the first published federal court decision on the subject as an approach that might pass muster. That court imposed liability on the plan for restriction based on less than receipt of a domestic relations order.  The Department of Labor doesn’t quite have a grip on the law in this area, but you should take some comfort in its position that the plan should act on suggestion.

@fmsinc, your reply is fascinating.  I had no idea so much plotting and scheming was going on.  If I could please ask a practical question:  I can see the appeal of amending the marital settlement agreement the way you suggested in order to avoid the 10% penalty tax.  However, what would compel the ex-wife to give the participant his share of the funds, once the distribution was complete?  People who are on somewhat amicable terms and can trust each other to honor agreements might be able to work this out, but what if they aren't?  The agreement might stipulate that she is supposed to split the proceeds 50/50 with him, but when she receives the funds, what if she doesn't comply?  I don't think the participant is going to want to take that chance.  He's also in a hurry for a fast resolution and I don't know that he can wait on an amendment of the agreement.  It is a great strategy to know about, though.

@BVoss, I think a lot of the problem lies in the fact that possibly there wasn't an attorney involved at all.  In one conversation, the participant made the statement that his ex had "done it all, paid the lawyer, whatever"  but on the other hand, the HR lady said the ex-wife had gotten a boiler plate divorce document and done all the work herself to save money.  I realize that it was up to her and/or her attorney to have done a QDRO correctly.  At this point, the participant and the ex seem to be working together to try to come up with a DRO as cheaply as possible (or for free) and as far as we know now, they are trying to get it done with what we provided to them.  Neither of them seems to be able or willing to hire competent legal advisers.  That really is the source of my problem to begin with.  I have only ever worked on cases where I was presented with a DRO or a QDRO.  With a DRO, my job was to determine whether all the ingredients were in the document.  Lately, I have been presented with QDROs where the attorney, without any input from us, has run the document by the judge and he has declared it to be a QDRO without the review process.  If something is missing, I have to get the attorney to make changes to the document and take it back to court.  I did have a case once, earlier this year, in which the parties to a divorce were truly abysmally poor and had to get the job done with no money.  That's when our ERISA attorney gave us a DRO boiler plate to share in hard luck cases.  That couple managed to get someone to complete the form, the judge blessed it into QDRO status, and we were able to proceed.  This particular case started out as "there is no DRO, there is no QDRO, there isn't going to be a DRO or a QDRO, the participant isn't going to pay a lawyer to draw one up and neither is the ex."  We just hadn't had that happen before, and yet we had to deal with an anxious HR department and a participant who wants money within 2 weeks so he can move.  Anyway, it all seems to be working out now.  He will either get the DRO approved, or he will take a distribution of all of the account and pay all of the taxes, and either way, he has some degree of control over what happens, and we now know a lot more than we did before.

Here is something you need to know about an important issue that is inadequately covered by your playbook.   The divorce proceeding, and all that comes out of it, including the terms of the settlement as reflected in the domestic relations order to be submitted to the plan., is personal to the plaintiff.  Plan, its fiduciaries, and its service providers, are in line for a heap of trouble if they intervene or advise about personal matters, especially personal tax matters.  The contents of the Tax Notice and what might be in the SPD are as far as the plan should go with respect to advising about tax consequences and strategies.  I know you don't like to receive anything I have to say,.  If your interest in fmsinc's post is academic, OK, but if you are thinking of passing along any advice, you are going way out on thin ice unless you are expressly engaged to provide services to participants'/employees.

Our Benefit Election forms have a section called  COURT ORDERS where one of two choices   ("are"  or  "are not") needs to be checked:

     [  ]   I hereby certify that my benefits   [are / are not]  subject to a court order dividing benefits as a result of a dissolution of marriage.

                     (These are actually 2 separate lines on the Election Form)

Assuming the participant  checked the   "are"   box,  wouldn't that stop you from further processing of the benefit request?  ....... i.e.  go back to the participant to say   "Get a QDRO, and send it to the Plan."    In absence of getting the QDRO subsequently, I leave it to the attorneys to answer.

....   Jeff

A number of the posts in this thread seem to focus on the question of whether or not  the amount awarded from a defined contribution plan will be subject to gains, losses and investment experience from the "valuation date" to the date of transfer to the Alternate Payee (via tax free rollover or taxable distribution, as the case may be) or the segregation of the Alternate Payee's benefits by the Plan before such transfer.  

Here is a Memo I prepared for my colleagues here in Maryland.  

Gains, Losses, Ownership Interest and Constructive Trust.pdf

Idr -

the information you provided regarding the divorce decree and the reference to the retirement plan sounds like it was in the boilerplate document she completed herself.  What it does not state is the account number, the value of the account as of a certain date, if there was a loan on any of the funds, etc. After all, there is volatility in the stock market.- so, upon receipt of a proper QDRO or divorce decree, the funds should be sold as of a certain date and the value frozen to -protect the assets for both parties sake. In addition, the one paragraph puts the responsibility on the Respondent to direct the Plan Administrator to divide the funds equally.  Why would the responsibility of dividing the account be placed upon the Respondent?  That is just crazy.  This isn't how a real QDRO is written. A real QDRO is sent to the TPA or Plan Administrator directly and if it is handed over instead,  it  must be signed by a Judge and entered into the court system as a valid document. This does not sound like a "valid" document and would not  hold up in any court of law.   If the employee is married, the 401k beneficiary is the wife and if a distribution is made, they wife would have to sign off on it.- but how do you know if it's the wife's signature?    Since the Respondent has terminated employment and you don't have a valid QDRO signed by a Judge- he probably could direct you to rollover 100% of the funds into an another account  and be done with it.  Without a valid QDRO signed by a Judge - there is no legal document.  This is just my 2 cents.  

The lawyer made a one paragraph passing reference to the participant's retirement account in the Marital Settlement agreement.  "Respondent has a retirement plan with XX Company.  Upon distribution of the funds in this plan,  Respondent will direct the Plan Administrator to divide the funds equally between the Respondent and the Petitioner, that being 50% to each party, however distributed."  

Good morning to all,

@QDROphile, I am not going to get into a discussion about how to save the extra 10% on $30,000 with the participant.  It is an interesting "dodge" and could be useful in the future but it was hard enough to get to the point we are at now without muddying the waters any further.

@JeffHartman, we are using distribution forms of John Hancock, so we can't edit a form in this particular case and add the language you are suggesting, but I like the idea.

@fmsinc, the QDRO boilerplate we furnished to the participant is silent on the subject of earnings.  It would appear from the way it is worded that if they agree on the division date as being the date the divorce papers were signed, then she will get 50% of whatever was in the account on that day.  But thank you for the memo, which I will read at lunch - it's a little long and duty calls.

@My2Cents, We realize that the little paragraph didn't constitute anything remotely resembling a DRO.  We were led to believe at first that there would not and could not be a DRO or QDRO forthcoming.  That changed yesterday when our participant decided to try to develop his own DRO using a boilerplate document from our ERISA attorney.  It will have all of the ingredients you mentioned.  If he can get a judge to bless it, we can split the account.  If he can't, he can indeed direct us to distribute ALL of his account in any manner he dictates.  That is what came of all of this discussion - we now understand that we can't hold his funds up if he wants a full distribution, he understands that if he doesn't get a QDRO he's going to pay taxes on the whole sum, and now we will see what happens.

Thank you, all of you.

17 hours ago, QDROphile said:

  If your interest in fmsinc's post is academic, OK, but if you are thinking of passing along any advice, you are going way out on thin ice unless you are expressly engaged to provide services to participants'/employees.

This is one of the more important takeaways from this thread.  Stay within the terms of your engagement, period.

Idr - this has been one of the most informative and, frankly, the most fascinating thread I've seen on this forum (though I am relatively new). I really do hope you choose to stay in the forum and not leave it as you stated you were thinking of doing early on. So many questioners might not have hung in there when initially feeling quite disappointed. I seldom see the original questioner continue to be so engaged in the process, thus making this thread a great resource for others to find in their future electronic searches for information about the QDRO process and the twists and turns inherent with the topic. Bravo to you (and to all those who contributed).

Two points, both drawn from the DOL QDRO handbook:

1.The court order between the parties is a DRO that should be qualified by the plan.  If the participant is eligible for a distribution, 1/2 goes to participant, 1/2 to spouse, alternate payee. I am assuming the court did not enter a divorce decree without a property settlement, so assume that the property settlement dividing the account was incorporated into the divorce decree. I am also assuming that the participant had notice of all of the proceedings, and must have signed the settlement agreement?  

2. There does not need to be a separate order to the plan to pay -- the plan is required to "honor" the division of property by the state court order.  Long ago, and in a far away place - California - plan administrators refused to give account information to prospective alternate payees, and refused to honor division of ERISA benefits pursuant to state court DROs. In response, California enacted a law requiring automatic joinder of ERISA- covered retirement plans in state domestic relations matters in order to enforce information disclosure and property divisions in DROs. The DOL spent a number of years, unsuccessfully, trying to convince california courts that the joinder law was preempted by ERISA.  Following that  - DOL advice to plan administrators when receiving any state court order was to politely reply that the plan would comply with the disclosure or distribution (if the order complied with ERISA and the plan terms) based on the plan administrator's duties under federal law, not state law. 

Why would any plan administrator voluntarily submit itself to state court jurisdiction?  What if the state court ordered  the plan  pay in a form of distribution (like lump sum) not provided for by the terms of the plan?  Or ordered the plan to pay the parties' attorney's fees? Or ordered the plan to pay to an alternate payee not entitled to a distribution from the plan (like the third spouse when the second spouse already had a valid QDRO on the account?).  If a DRO contained any of these provisions,  the plan administrator should reject the DRO, and the remedy, after any administrative appeal that might be provided by the plan's QDRO procedures, would be for the putative alternate payee is go to federal district court. 

@Doc Ument and also ESOP Guy from an earlier post:  Thank you very much for your encouragement.  I really do appreciate it.  And I know I need to grow a "thicker skin" but at this late stage of life it probably won't happen.

@Tigerket:  I think you are getting at a part of my question that was never resolved clearly in my mind.  To be clear:  We do have a QDRO procedures policy that came with our document system and we follow it when we get a DRO or a QDRO that we can recognize as a DRO or QDRO.  We had only ever seen a separate document, clearly labeled as a DRO or QDRO, that generally contains most of the ingredients in the recipe and mostly never asked for anything the plan doesn't allow.  All we have ever had to do is decide whether a DRO in draft form was complete, or a QDRO processed without us actually had been done right.

The little 3 sentence paragraph I quoted from this case is a part of a 3 page Marital Settlement Agreement that covers children, spousal support, property (just a couple of cars), child support, insurance, income tax, "retirement", liabilities, debts and fees.  They both signed it.

We were struggling with and still struggle with our obligations given that at first, we were told that no DRO and no QDRO would be forthcoming.  If all we would ever get was that one little paragraph, what were our obligations and what were the obligations of our client?  Plus, we didn't realize that until we got a proper QDRO, we would be obligated to honor the request of the participant if he wants to withdraw his entire account.

Now if I understand you correctly, you are saying that the little 3 sentence paragraph was a DRO, in and of itself, and that's what I was afraid of and needed to have clarified.  We can't afford to just blithely ignore this document and say that until we get a proper QDRO, we have no obligation to do anything.  

We are back to this:  If we as a TPA know that a former spouse has a right to a portion of a participant's account, we cannot ignore it.  Anything we get in the future, even if it is just one paragraph, will be suspected of being a DRO, and we will follow the procedures until it becomes a QDRO.  And apparently, if we never get the QDRO, then the participant can withdraw his entire account if he has an event that allows for distributions, and the fight is then between him and the ex-spouse and we have no further liability.  

We have not yet heard back from the participant as to what he wishes to do or whether he was successful in getting his home-made QDRO approved or in line to be reviewed.  I will update the column when we find out.

While it is my understanding a martial settle agreement can in theory be a DRO and a QDRO.  What the people I know that know this subject well tell me is as a practical matter they almost never have all the needed characteristics.  

Based on the original description I don't see a QDRO. 

It has always been my understanding that DROs should be rejected for what seem like even minor technical issues.  For example in the ESOP world we see DROs come in that call the plan, "XYZ Corp Employee Stock Option Plan".  We will always recommend the client reject the DRO and make them get the right name "Ownership".  

So unless what was sent to you have all the the needed requirements I stand by the advice given by most of the people in this thread. 

@ESOP Guy, we are in agreement but we are just saying the same thing two different ways.  We thought a Marital Settlement Agreement was a separate thing, not a DRO, not a QDRO, and not capable of being considered either one, and not capable of containing either one, because we never saw it done this way before.  We expected a separate document, a 4-5 page thing clearly labeled DRO or QDRO.  When we were told we would never get that, we didn't know how to treat what we did get.

I totally agree with you that so far, nobody has presented us with anything like a real QDRO.  But what Tigerket was saying is that the one three-sentence paragraph in the Marital Settlement Agreement was a DRO, however incomplete it may have been.  That's what we did not know, along with not knowing that the participant has a right to take his entire account out right now, as a terminated participant, regardless of what is in the Marital Settlement Agreement.  

ldr - Some of your instincts were correct, despite the doubt leveled at you by QDROphile.   Obviously from these posts,  it seems like lots of plans still expect to get some additional order covering the plan benefit,  or requiring a separate order directed to the plan from the judge, for the plan's "protection," but it is not necessary, and causes, as here, extra expense for the parties. Take a look at  DOL Handbook  Q1-2 and Q1-7. The only plan administrator who may ask for a court order directing it to pay is the PBGC - and that is because when an AP seeks a division of a pension benefit from a plan administered by PBGC, the claim is for a federal benefit, not just asking a private plan to honor a state court division of property. 

I am sure I will get a fight back  since QDRPhile thinks the DOL has been wrong too.  And I don't mean to fault plan administrators in general -- (altho courts do when the PA is too hypertechnical in qualifying DROS) - there is sufficient ambiguity in the domestic relations laws, and in ERISA, its case law, and agency guidance to be confusing.  Courts generally, if it comes to that, are deferential to the DOL guidance, even sub-regulatory guidance, so that is a safe bet. 

Your instincts were also correct on what protective measures a plan should take.  The DOL Handbook is instructive there too. First Q 2-1 - on disclosure - altho the types of parties who are prospective APs is small, and some are entitled to benefit statements anyway (spouse), the plan may request proof that a request for information is in connection with a domestic relations proceeding,  but then the plan must give the prospective AP any and all information necessary to draft a DRO.

 The question of how long a plan should protect benefits in a disputed situation is harder to answer, as you will see from the Handbook Qs 2-11-13.   And there are variations.  Courts don't generally fault a plan if the plan has absolutely no knowledge of a DRO (or perhaps even of a spouse), and makes a distribution to the participant.  Plans aren't likely to be faulted by the courts for not paying out when a dispute is known, but there is much confusion about the "18 month period" for waiting when benefits are already payable.  This waiting period does not answer all situations.  For instance,  most plans experience, at some point, receiving inquiries, and even draft DROs, or other evidence, but then not hearing back from the AP indefinitely.  Then the participant applies for a distribution of the entire account. Things happen - the AP decides to accept the house, the boat, and the dog instead of a share of the pension.  Or the parties reconcile (it happens!).  A plan can protect itself, by writing to all of the parties, and their attorneys, stating that the plan will honor the participant's distribution request unless it receives notice that there is still a dispute over the plan benefit.  

I will now step down off of my soap box.

1 hour ago, ldr said:

@Doc Ument and also ESOP Guy from an earlier post:  Thank you very much for your encouragement.  I really do appreciate it.  And I know I need to grow a "thicker skin" but at this late stage of life it probably won't happen.

@Tigerket:  I think you are getting at a part of my question that was never resolved clearly in my mind.  To be clear:  We do have a QDRO procedures policy that came with our document system and we follow it when we get a DRO or a QDRO that we can recognize as a DRO or QDRO.  We had only ever seen a separate document, clearly labeled as a DRO or QDRO, that generally contains most of the ingredients in the recipe and mostly never asked for anything the plan doesn't allow.  All we have ever had to do is decide whether a DRO in draft form was complete, or a QDRO processed without us actually had been done right.

The little 3 sentence paragraph I quoted from this case is a part of a 3 page Marital Settlement Agreement that covers children, spousal support, property (just a couple of cars), child support, insurance, income tax, "retirement", liabilities, debts and fees.  They both signed it.

We were struggling with and still struggle with our obligations given that at first, we were told that no DRO and no QDRO would be forthcoming.  If all we would ever get was that one little paragraph, what were our obligations and what were the obligations of our client?  Plus, we didn't realize that until we got a proper QDRO, we would be obligated to honor the request of the participant if he wants to withdraw his entire account.

Now if I understand you correctly, you are saying that the little 3 sentence paragraph was a DRO, in and of itself, and that's what I was afraid of and needed to have clarified.  We can't afford to just blithely ignore this document and say that until we get a proper QDRO, we have no obligation to do anything.  

We are back to this:  If we as a TPA know that a former spouse has a right to a portion of a participant's account, we cannot ignore it.  Anything we get in the future, even if it is just one paragraph, will be suspected of being a DRO, and we will follow the procedures until it becomes a QDRO.  And apparently, if we never get the QDRO, then the participant can withdraw his entire account if he has an event that allows for distributions, and the fight is then between him and the ex-spouse and we have no further liability.  

We have not yet heard back from the participant as to what he wishes to do or whether he was successful in getting his home-made QDRO approved or in line to be reviewed.  I will update the column when we find out.

 

1) No way that 3 sentence paragraph is a domestic relations ORDER (DRO).  An order is an order of the court; I would suggest that doesn't rise to an order of the court. You have not yet received a DRO to determine if it is a QDRO, and clearly this is not.

2) More important, it doesn't matter if is it a DRO; it clearly is NOT a QDRO, and that's what matters.  A DRO and a QDRO are two different animals (A DRO can be a QDRO, but as we all know, it often is not and has to be perfected).  

Here is the language from our QDRO Procedures:

Procedure prior to receipt of order: The Plan will apply the following procedure prior to the Plan's receipt of a Domestic Relations Order.
1. Suspension of Participant distributions or loans. If the Administrator is on notice (verbal or written) regarding a pending domestic relations action (e.g., a divorce) and has a reasonable belief the Participant's account may become subject to a QDRO, the Administrator may suspend processing the Participant's distribution or loan requests pending resolution.
2. Removing hold on the account. After placing a hold on the account, the Administrator should notify the Participant of the hold on the account. In order to remove the hold, the Administrator should request the Participant to provide written confirmation that a court will not issue a QDRO with respect to the account; such as a property settlement agreement awarding the entire account to the Participant.
 

So, we have an OPTION to suspend processing, but are not required to do so.  We also have the option to suspend processing and if it is not resolved in some short period of time (say 60 days), we can lift the hold and do the distribution.

So you can (hopefully) do the same (assuming your QDRO procedure would allow); tell the parties that what you have been given so far does not meet the requirements of a QDRO and they have XX days to get the order to you, and if not received in that time, the hold will be lifted and distribution made to the participant.

If it helps, here is a Memo I prepared for the members of my DSGfamily listserv dealing with the issue of when a Judgment of Absolute Divorce (with or without an incorporated Marital Settlement Agreement) can constitute a valid QDRO.  See attached.  

David

JAD = QDRO.pdf

As a Moderator, I'll take this opportunity to comment about a previous post/exchange in this thread.  Let's keep our discussions civil.  Please.  You know who you are.

There is no value here in using demeaning words or phrasing. 

Yeah, mean people suck.

We spent most of today archiving old files and packing away boxes, so I can't do any of you justice at the moment.  @Larry, Starr your latest post helps immensely and I will answer it as soon as I can.  @ fmsinc, I didn't get to read the whole memo yet but the chicken soup story was great!  @david rigby, thank you.  @BobbyV, yes they do.

Have a great weekend, everyone!

What a great thread!  I learned a lot.  Thanks to all for an illuminating read.

William

Good morning to all!  Still no word from the participant. 

Larry Starr, you said:

You will not appreciate this, but I recommend not adding a provision that requires judgment and discretion into a legal scheme that does not require that of the QDRO fiduciary (yes, you very well may be putting yourself into fiduciary status by what you are doing in QDRO processing).

You may consider this to be a rude insult, but if you know what you are doing, an objective (meaning no discretionary judgment) checklist approach is best. It minimizes exposure to fiduciary liability. If you are not deeply knowledgeable, then adding discretionary judgment is a bad idea.  It is better to have an objective checklist procedure and then seek advice when the strange event that does not fit arises.

From other traffic in this category, we know that Larry Starr’s clients generally involve Larry Starr in the QDRO processing, so it is safe because the fiduciary has an adviser with deep knowledge to provide protection to the fiduciary that has the duty to make discretionary judgments, voluntarily taken on by unnecessarily adding the provision to the written QDRO procedures.

To add to the confusion, OP seems to be clinging to the idea that the original 3 page settlement agreement is not a DRO.  Does everybody agree with that?

16 minutes ago, Mike Preston said:

To add to the confusion, OP seems to be clinging to the idea that the original 3 page settlement agreement is not a DRO.  Does everybody agree with that?

I guess my question would be:  So what if it is?   Based on all the descriptions it clearly isn't a QDRO.  

If they have a procedure that says if they get a DRO they can put a hold on the account I guess I can see this being enough to put the hold on the account until the time is up or they get a QDRO.  

But strictly speaking I am not sure I have seen a legal definition of a DRO.