"I had a case recently where an ERISA-qualified union plan provided a pro forma set of QDRO procedures and a Model Order for a shared interest in its defined benefit plan. There was no mention of survivorship, that is, no mention of the availability of a QJSA or QPSA options. I used their Model Form as a rough guide, but added language providing the Alternate Payee with a 100% QJSA and a 50% QPSA as agreed to by the parties in their Marital Settlement Agreement incorporated in the Judgment of Absolute Divorce.
The plan's attorney responded that the plan did not permit QJSA or QPSA options. I responded quoting IRC 414(p)(5), IRC 401(a)(11), 26 CFR Section 1.401(a)-20 -- Requirements of qualified joint and survivor annuity and qualified preretirement survivor annuity, Q. 3-5 and Appendix C of an DOL EBSA pamphlet entitled QDROs: The Division of Retirement Benefits Through Qualified Domestic Relations Orders, and referring them to https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-qualified-joint-and-survivor-annuity
The attorney responded that they would permit the QJSA or QPSA options, but that I could not specify the percentages. (The plan provided that the QJSA had 50%, 75% and 100% options available; and the QPSA had 50% available.) I responded by reminding them of their obligations as plan administrators to
provide informations about plan benefits to alternate payees (Questions 2-1 and 2-5 of the aforesaid DOL EBSA pamphlet), and sent them a copy of the PBGC Model Order Booklet, Page 12, Section 10 reflecting the option of inserting any available QJSA or QPSA percentage agreed to or ordered by the trial court. I also suggested that legal fees were awardable to the alternate payee for their failure to fulfill their obligations, citing 29 USC Section 1132(g), 28 USC Section 1927, and Chambers v. Nasco, Inc., 501 U.S. 32, 44-46 (1991) outlining the court's inherent power to assess attorney fees especially when a party is litigating in bad faith. The QDRO was finally approved as I have drafted it.
It was unmistakably clear
that the attorney for the plan was intent on protecting their participants to the detriment of their former spouses, and hoped that persons less knowledgeable than I would not know the difference. Perhaps this happens all the time and I am just naive. But it never happened to me in the 33 years I have been preparing QDROs.
What do you think I should do, if anything? Any ideas?"