"I am in desperate need of assistance. Quick overview of the case. I was divorced nearly 7 years ago. My ex-husband was awarded the family home and all equity in it in exchange that I receive 40% of his retirement plan. I understood at the time of the divorce that my ex-husband was not yet eligible to receive his retirement benefits and that I would have to wait 6 years before I could start receiving any benefit from his account. He
turned 50 in early 2020 and I have been petitioning the Plan Administrator since that time, to no avail.
I am now homeless and in desperate need of the monies that were awarded to me in court but the Plan Administrator refuses to release any funds to me unless I agree to receive $171/month. I cannot live on that and would never have agreed to the settlement had I known I would become homeless and without fair and equitable resolution
from the divorce. I have tried everything I can think of to obtain what was awarded to me and hoping and praying that you can help me. Please. Is there anything you can think of to help me?
Through my research I have found the following to be true:
- This is a Multi-Employer Defined Benefit Union Pension Plan.
- The QDRO was signed by the Judge and Approved by the Plan.
- Alternate Payee is a Separate
- Plan Participant is fully vested and is eligible for 'early retirement' under the Plan after reaching the age of 50 and being employed with the company for > 30 years, however, he is still working for the employer and hasn't taken the Early Retirement Option.
- Plan allows Alternate Payee to begin taking distribution under the 'early retirement' clause.
- Alternate Payee is former spouse
of Participant and agreed to receive 40% of ex-husband's pension in exchange for the family home and all equity at the time of divorce as per the division of Marital Assets.
- 40% Pension portion awarded to the Alternate Payee in the Divorce Decree and ordered by the Judge nearly 7 years ago.
- Alternate Payee's Benefits are not yet in Pay Status. I understand once I elect a form of benefit, I cannot change it, that is
why I haven't chosen to start payments.
- I requested a Hardship Withdrawal, Withdrawal under the CARES Act, a Lump Sum Payout as well as a Direct Rollover and have been formally denied for all of them by the Plan Administration. I am still within my 60 days right to Appeal.
- Colorado is also an equitable division state. My ex-husband was awarded the family home and all equity in it, at the time the equity was >$80,000.
He received it the day of the divorce, 7 years ago. I still have received nothing and am currently homeless and nearly penniless. its certainly not fair and equitable distribution.
As per the Plan:
7.13 Direct Rollovers
(a) General. Not withstanding any provision herein to the contrary that would otherwise limit a Distributee's benefit election under this section, a Distributee may elect, at any time and in
the manner prescribed by the Trustees, to have any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct Rollover; provided, however, that if a Distributee elects a Direct Rollover as to any portion of his pension benefit, the amount to be paid in a Direct Rollover must equal at least $200. If a Distributee fails to elect a Direct Rollover of an Eligible Rollover
Distribution, 20% shall be withheld from the Eligible Rollover Distribution for the purpose of federal income tax withholding.
(b) Definition for this Provision.
(i) An 'Eligible Rollover Distribution' is any distribution of a Distributee's benefit or any distribution that satisfies the requirements of Code section 402(c)(11), except that an Eligible Rollover Distribution does not include: any distribution that
is one of a series of substantially equal periodic payments made for the life of the Distributee or the joint lives of the Distributee and his Spouse, or for a specified period of 10 years or more; any distribution to the extent such distribution is required under section 7.5; the portion of any distribution that is not includable in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to
employer securities), or any distribution reasonably expected to total less than $200 in the calendar year.
(ii) An 'Eligible Retirement Plan shall also include a Roth IRA described in Code section 408A, subject to the applicable provisions of Code section 408A(c)(3)(B), and the distribution rules of Code section 408A(d)(3).
(iii) A 'Distributee' includes a Participant or former Participant. In
addition, the Participant's or former Participant's surviving Spouse and the 35384302v3 09/03/2019 VII-28 Participant's or former Participant's Spouse who is an alternate payee under a QDRO, are Distributees with regard to the interest of the Spouse or former Spouse.
(iv) A 'Direct Rollover' is a payment by the Plan to the Eligible Retirement Plan specified by the Distributee. (c) Direct Rollover Notice. The
Plan shall notify Distributees and all recipients of a distribution intended to satisfy Code section 402(c)(11) regarding their right to a Direct Rollover in the manner and within the time period required by applicable law.
- There is one form of benefit an Alternate Payee cannot be awarded in a QDRO, and that is 'a Joint and Survivor Annuity with respect to the Alternate Payee and his or her subsequent spouse,' 29
U.S.C. Section 1056(d)(3)(E)(i)(III). Any other form of annuity offered by the plan to Participants may be chosen by an Alternate Payee. The refusal to pay a Lump Sum to the Alternate Payee who has a separate interest in the plan without restrictions on the Lump Sum payment in the QDRO would be discrimination under ERISA 510?
- Section 206(d)(3)(A) of ERISA requires that every pension plan provide for the payment of benefits
in accordance with the applicable requirements of any QDRO.
- It should be remembered that retirement benefits are subject to distribution upon divorce regardless of whether they are in pay status, or matured but not in pay status (where the employee has an unconditional right to retire and obtain immediate payment of benefits, but has not yet done so), or have not yet matured, and whether or not they are 'vested.' Each of
these possible stages of accrual of benefits has a value that can be distributed by way of an'in-kind division' or by an award to the non-employee spouse of offsetting or equalizing payments, but (of course) the stage of the accrual of benefits will affect the value of the award to the non-employee spouse. Under ERISA, however, when benefits in a defined benefit retirement plan are matured and the employee has an unconditional right
to retire and obtain immediate payment of benefits, but the employee chooses to continue working, there is authority that the non-employee spouse is entitled to demand payment of his or her share without waiting for the employee spouse to retire. This is a 'divided interest' order, and the sum of the benefits payable is calculated actuarially in accordance with the age, etc., of the non-employee spouse. One issue that appears
repeatedly in the case law regarding ERISA plans is what to do about early retirement subsidies. Under private plans, the non-employee spouse's early retirement rights are specifically recognized, so the plan must compute and pay the accrued benefit awarded to the non-employee spouse without regard to any early retirement subsidy for which the participant has not yet become eligible by retiring.
Copied from The Plan as it
relates to QDROs:
12.17 Qualified Domestic Relations Orders. Upon receipt of a domestic relations order issued by a court of competent jurisdiction with respect to a Participant's interest in the Plan, the Trustees shall determine whether such domestic relations order constitutes a QDRO. The Trustees shall establish reasonable procedures to determine the qualified status of a domestic relations order and to administer
distributions mandated thereunder. Unless a QDRO specifically provides acceptable alternative instructions, each alternate payee's monthly benefit under a QDRO shall be determined by multiplying the Actuarial Equivalent by the Award and dividing that product by the Conversion Factor.
For purposes of this formula, the terms used in the preceding sentence shall have the following meaning:
(a) Actuarial Equivalent shall be the
present value of the aggregate amount projected to be paid to the Participant during his lifetime in the Monthly Income for Life form of pension benefit and subject to division under a QDRO. If the Participant is not receiving benefits when the alternate payee requests payment, the Actuarial Equivalent shall be determined as follows rather than any early retirement factors or other subsidies provided by the Plan: (i) the interest rate set
forth in section 5.7(b) as of the date on which the alternate payee begins to receive benefits from the Plan; and (ii) the mortality table described below: [a] for Class RC Participants, the 1983 Group Annuity Mortality Table; [b] for Class M Participants: if the Class M Participant's domestic relations order was issued by a court of competent jurisdiction prior to July 1, 2016, the 1971 Group Annuity Mortality Table with ages
set forward one year; and [ii] if the Class M Participant's domestic relations order was issued by a court of competent jurisdiction after June 30, 2016, the 1983 Group Annuity Mortality Table. If the Participant is receiving benefits from the Plan when the alternate payee requests payment, the Actuarial Equivalent shall be determined using the early retirement factors and any other applicable subsidy provided by the Plan for the
form of benefit being paid to the Participant, based upon the alternate payee's age on the date on which benefits commence to him or her.
(b) Award shall be equal to that percentage of the Participant's benefits that are awarded to the alternate payee pursuant to a QDRO.
(c) The Conversion Factor shall reflect the actuarial adjustment necessary to convert the alternate payee's benefit to a monthly benefit for life
and shall be based upon the alternate payee's age on the date on which benefits commence to him or her. This actuarial adjustment shall be made using the interest and mortality assumptions used to determine the Actuarial Equivalent in section 12.17(a) above.
(d) In the event that the parties to a QDRO enter into an agreement subsequent to the entry of the QDRO to renegotiate each parties' share of the benefits that are
subject to the QDRO (a 'renegotiation agreement'), and a court of competent jurisdiction finds that: (i) after entering into the renegotiation agreement, but prior to amendment of the QDRO to reflect the renegotiated benefits; a party (the 'breaching party') has elected benefits under the original QDRO, (ii) pursuant to the renegotiation agreement, the breaching party is not entitled to some or all of the benefits already
received and/or to be received by that party under the terms of the original QDRO and the breaching party's actions in receiving such benefits has damaged the other party, and such court enters an amended QDRO to rectify such damage, then the Trustees shall, to the extent feasible, adjust the amount and form of distribution for either or both parties to the amended QDRO, which may include reannuitization of the benefits.
is there any way possible for me to obtain the funds other than monthly payments?"