3.1.c Section 4
In Section 4 of the QDRO, you must include the actual (official) name of the company’s pension plan or savings plan, as applicable. You can usually obtain this information by contacting the company’s human resources or personnel department. You must get the name exactly right. If you leave out a comma or the word “Inc.” from the name of the plan, this could give them a reason to reject your QDRO.
3.1.d Section 5
In Section 5, you should include the name of the state where you were divorced.
3.1.e Section 6
Section 6 of the QDRO simply states that it relates to the provision of “property rights” or “support” payments granted to you under the divorce. Again, this is considered boilerplate, which means type it and forget it.
3.1.f Section 7
The “guts” of the QDRO can be found under Section 7. This is where you include the “amount” of benefits payable to you. Sample 11 is already set up to provide you with 50 percent of the total account balance in the plan as of your date of divorce. Remember to include your date of divorce where indicated. This Sample QDRO also provides you with any interest or investment gains or losses attributable to your share of the benefits from your date of divorce to the date you receive your distribution.
3.1.g Section 8
Section 8 of the QDRO provides that you may receive your distribution as soon as the QDRO is approved by the plan administrator, to the extent permitted. If the plan does not permit you to receive your funds right away, the plan administrator will set up separate accounts in your name under the plan. You would then receive investment gains or losses on your share of the benefits until the date of distribution.
3.1.h Section 9
Section 9 of the QDRO gives you all of the rights granted to participants and beneficiaries under the plan. This is considered boilerplate language.
3.1.i Section 10
Section 10 simply states that if you die before you receive your distribution, then payments will be made to either your designated beneficiary or your estate. They will not revert to your ex-husband.
3.1.j Section 11
Section 11 protects you in the event of the death of your ex-husband before you receive your distribution. In essence, you will be treated as his beneficiary, to the extent of your assigned interest under the QDRO if he predeceases you.
3.1.k Section 12
Section 12 is just boilerplate. Type it and forget it.
3.1.l Section 13
Section 13 is also boilerplate. Under federal law, any amounts that you receive as alternate payee will be taxed to you. It’s the law. You can’t change it.
3.1.m Section 14
Section 14 is the “constructive receipt” section. This legal-sounding phrase simply means that if the plan administrator accidentally pays your ex-husband any of your money, he will be required to pay you back immediately.
3.1.n Section 15
Section 15 is legal boilerplate. “Continued jurisdiction,” is a legal mechanism enabling you to go back to court, if necessary, to carry out the intentions of the QDRO, the parties, and the court if your QDRO is rejected.
3.1.o Section 16
Section 16 is boilerplate, too. If the company terminates the plan before you receive your distribution, this section will protect your benefits to the same extent that a participant’s benefits will be preserved on termination of the plan.
3.1.p Section 17
Section 17 is called anti-circumvention language. This legal-sounding phrase is intended to protect you if your ex-husband takes any action that will limit or reduce the amount of your benefits under the QDRO.
4. Getting the Judge’s Signature
Once you finish typing the QDRO, be sure to leave a signature line at the end of the order for the judge’s signature. You now need to get it signed by the judge. You may have to contact an attorney for the sole purpose of running your QDRO through the court system (obtaining the judge’s signature for you). However, some judges will sign the QDRO for you directly without requiring you to obtain an attorney. Contact the judge who handled your divorce by calling the courthouse, and ask to speak to the judge’s clerk or secretary. If that judge is no longer sitting on the bench, you may contact any other domestic relations judge within that jurisdiction, or ask the courthouse receptionist to tell you who replaced your judge. You should then explain to the judge’s clerk that you were previously divorced in that jurisdiction but that a QDRO was never prepared in your case. Next, ask the clerk if the judge will sign the QDRO if you send it to him or her. Be sure also to include a copy of your original divorce decree and separation agreement that shows that you were awarded a portion of your ex-husband’s pension or savings plan benefits. When the judge sees that you really were awarded “x” amount of your ex-husband’s pension benefits, he or she may sign the QDRO for you without the intervention of an attorney.
5
How Do You Deal with the Plan Administrator?
Once a QDRO is prepared, it should be sent to the plan administrator for review and approval. In most cases, the plan administrator is the company itself. Your best bet is to send the QDRO to the attention of the human resources or legal department at the company where your ex-husband works (or worked). Not surprisingly, many plan administrators adopt a paternalistic attitude toward their employees, which may engender a combative attitude on the part of attorneys representing nonparticipant spouses. In seminars conducted for plan administrators, I have heard countless statements like “That might hurt our employee, if we give her that much of his pension” or “That doesn’t seem fair to our worker.”
Suggestions that plan administrators should avoid taking sides in domestic relations cases are frequently met with quizzical looks. This attitude can cause significant problems during the discovery process or when preparing a QDRO to secure the property rights of the alternate payee. The legal term discovery means the process of obtaining information from the plan administrator regarding your ex-husband’s pension benefits. In other words, your attorney tries to discover all the pertinent information that will help him or her place a value on your ex-husband’s pension or savings plan benefits.
1. Plan Administrators and You
Too many pension plan administrators view the nonparticipant spouse as an individual appropriating something that was earned through someone else’s efforts. The economic partnership aspects of a marriage — the fact that a pension is deferred wages earned through the efforts of both parties and the contributions of the nonemployee