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socrateaser
socrateaser, Lawyer
Category: Family Law
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Experience:  Retired (mostly)
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Divorce decree states, I am to be treated as the surviving

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Divorce decree states, I am to be treated as the surviving spouse for maximum pre and post retirement survivor's benefits and to receive a marital share of all pension and savings from pension if... As I understood notes I took, a QDRO administration lawyer suggested the word "qualified" not be used. He pointed out the plan only allows one surviving spouse, the benefits were "frozen" almost 15 years previously, earned entirely during a long marriage in a community property state, thus, makes sense I am to be the surviving spouse - and currently ex has not remarried as far as I know. According to notes, he indicated that even though the decree does not limit the marital share to an IRS qualified amount of the marital share of retirement/pension savings, if the words "maximum qualified" are put in the draft QDRO, that might set me up to receive a very minimum amount of perhaps 10%, as the maximum qualified by the IRS, or even the 100% qualified amount by the IRS, could be 10%. I am confused, as the SPD allows my ex. to elect 50%, 75%, or 100%. I pay for the full amount anyways by reduction of monthly benefits, which should not be done for anyone but my benefit. Therefore, if there can be only one beneficiary, and it is earned entirely during the marriage, and I would have paid for it by a reduction of the monthly sharing of the pension, why would I not receive the 100% JSA if it stated maximum "qualified" JSA or 100% QJSA or the qualified 100% joint-and-survivor annuity? It was re-written to state "qualified 100% JSA," and I do not know what should come first qualified or 100% in this case. It was not resubmitted though. Is there a "qualified" amount by the IRS that is the maximum qualified IRS amount? Is it better, and would there be any risk/consequences, if the word "qualified" were eliminated and it only stated my ex. is to elect I receive the 100% joint-and-survivor annuity if he were to die before me? I was concerned the word "qualified" might be necessary as the SPD only allows a spouse to get the award, and I would be a former spouse. Perhaps a judge has to sign something that specifically states I get the 100% joint-and-survivor annuity. Is there any basis for that concern? What is the purpose and significance of the word "qualified" when used in the context of describing the amount awarded for a QJSA and/or QPSA in QDROs?
Hello,

I have been doing family and tax law for a damn long time, and I haven't a clue what this QDRO lawyer is talking about. You mentioned the term "support," which makes me think that there is some tie-in to alimony/spousal support. That is, because the amount of your distribution rights in your spouse's retirement plan may be so large, that the court would be unlikely to make a large spousal support award.

However, even if this were the rationale, it would not explain why the term, "qualified" would have anything to do with the issue. Any employer plan which requires a QDRO as a means of dividing benefits between spouses, is, by definition a "qualified" ERISA retirement plan. Otherwise, there would be no need for a QDRO, because ERISA-qualified plans cannot be divided without a QDRO, and non-ERISA qualified plans, are not covered by federal law, so, a QDRO would be legally meaningless. See 26 U.S.C. 414(p) for the requirements of a QDRO under federal law.

The point of my little monologue is that whether or not the order describes the retirement plan as qualified, a QDRO is qualified by definition. It cannot be otherwise.

If you are not really a spouse, due to some defect in your original marriage (e.g., bigamy: spouse was already married to someone else when you were supposedly married) then that could be relevant, because you would not be a spouse under the federal law definition. So, it would be incorrect to call you a qualified alternative payee for the purposes of a QDRO. However, here again, the QDRO cannot be used to order benefits in favor of a person who is not qualified to receive them -- so, I don't know why there would be an emphasis on the use of the term, "qualified."

I'm afraid that I'm stumped here. And, I'll bet if I am, then practically every other family law attorney in the USA would be similarly puzzled. So, I would suggest that you contact this lawyer can try to get a complete explanation of what he/she is referring to -- because from my admittedly very distant vantage point -- this issue makes no sense whatsoever.

Please let me know if my answer is helpful. Thanks!
Customer: replied 4 years ago.
This is an ERISA plan. A QDRO is needed to divide it as part of the division of marital property, and I was not awarded alimony. As far as I know there was no bigamy involved. At least when I married him I am sure he was not married,as we lived in a different state. He was 23 years old, and we were married over 24 years. I think you are saying that within the context of a QDRO for dividing of an ERISA qualified plan, it could state I am to receive the qualified 100% joint-and-survivor annuity, or the 100% joint-and-survivor annuity or the 100% joint-and-survivor annuity and it would all mean the exact same thing, and should result in the same outcome. Do I understand you right? The standard options for survivors benefits were already 50%, 75%, and 100%, so it would be a benefit already offered by the plan, and I have to accept less of a share of the monthly pension benefits.
Okay, now I understand the context. For a plan to be qualified under ERISA, the amount paid to the surviving spouse must be no less than 50% and no greater than 100% of the amount of the annuity paid during the participant’s life. Otherwise, it's not a qualified plan.

But, it's still a silly discussion, because if your distribution rights are not within the requirements for an ERISA qualified plan, then the entire employer's retirement plan is disqualified, and the employer owes s fortune in taxes and penalties to Uncle Sam. And, the QDRO would be useless, because unless the plan is qualified, you can't use a QDRO to order a distribution.

The botXXXXX XXXXXne here is that you cannot be the recipient of 10% of the JSA from the plan, and if that's what was ordered in your divorce judgment, then the order is preempted by federal law, because it cannot be effected against the plan administrator. You must receive between 50-100% of the amount which would have been due your spouse, had he not been married to you.

Hope this helps.
Customer: replied 4 years ago.
Thankfully the divorce judgement did not order I receive less than 50% or any unqualified amount, but the maximum offered by the plan. So, in such a case I think I will make sure the word "qualified" stays in the order, and it state it is to be the qualified 100% joint-and-survivor annuity, which is not contrary to the divorce order.
Works for me. Go get em!

Would you kindly provide a positive rating for my answers, so that I may receive appropriate compensation. Thanks again!
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