DAVID F. BLAISDELL
Attorney at Law
23020 Atlantic Circle
Moreno Valley, CA 92553
Phone: 951-247-1977

David F. Blaisdell
Attorney at Law (Lawyer)
want to get information on. The fact that you are reading this web site shows that. If you need help then I am here to help. I want to help you! I do care about you and your case. Please call now to Dave Blaisdell, Attorney, 951-247-1977. No charge for the first consultation. "The other side is Goliath. You are David. This office is your slingshot."

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QDRO Retirement Orders
FOUR REASONS WHY YOU SHOULD HAVE A QDRO DONE DURING THE DIVORCE CASE AND NOT AFTER

This information is provided by a Moreno Valley, CA divorce attorney.

NOTE: This office does QDRO type retirement plans as part of the divorce case itself or on a later modification where there are other issues involved (e.g., property, custody, visitation, support, etc.). If you are interested in a QDRO only and nothing else we suggest you contact Rick Muir in Ontario. If you know of anyone contemplating a divorce, going thru a divorce or a past divorce with other issues in addition to the QDRO then have them contact this office. If more issues than just a QDRO then contact this office at 951-247-1977.
DANGER ALERT: If you file for a QDRO after the divorce is final the other side may get upset and cross file for a modification of support, property or something else. This is one of the main reasons for getting the QDRO done during the divorce and not after.

QDRO ALERT: The case of Marriage of Padgett (2009) 172 Cal.App.4th 830 has been published. In this case the judgment just stated "The court reserves jurisdiction over his retirement plan." No QDRO was done. He later remarried and died. The new wife got all the retirement benefits. Old former wife wanted to do the QDRO going back in time (nunc pro tunc). The appeals court said no to her. Just reserving jurisdiction is not adequate for a nunc pro tunc QDRO. Lesson here is do that QDRO as fast as possible. Irony here is that the old former wife could have been married to him for years. New wife gets it all even if she was married only a short time. Please read the case for greater details.

IN THE BELOW, WE MAY NOT BE TOTALLY CURRENT. WE MAKE EVERY EFFORT TO DO SO, BUT THE LAW AND OTHER INFORMATION IS SO FAST CHANGING THAT WE CANNOT GUARANTEE THE ACCURACY OF EVERYTHING BELOW.
See the below sections:

Basics of legal research in family law in California - Please read this first before reading any cases.
Arranging the information below - If you plan to do a QDRO or get information on QDRO orders the information in this section should be a help. QPSA and QJSA are defined and there is other helpful information. Notes made by the attorney are included. Please read this material.
QDRO Fact Sheet
Cases Involving QDRO Type Retirement Orders - There are a large number of cases here. They are in an easy to read "You be the Judge" type format. When here you might use Control + F to do a key word search for what you are looking for.
This Office Does QDRO Plan Orders
How To Divide IRA Accounts
Retirement Plan Lingo - This includes information on "benchmark ages" of people.
Information About Lump Sum Distributions - Information on taxes and penalties involved.
Making Retirement Plans Easier To Understand
Myths And Facts About Pensions In Divorce
General Information On Retirement Plans
Brief Information on CalPERS and CalSTRS- These are the two most common retirement plans for employees of the State of California or local governments.
Choices When Your Spouse Has A Retirement Plan
Social Security Information - In California Social Security is not divided like a QDRO. It is all the Separate Property of the account holder. However the other spouse can sometimes get "derivative benefits" and other benefits.
Information an actuary will need to find the present value of your pension plan.
Finding lost and destroyed pension records
Free QDRO orders on line - Various plans are outsourcing QDRO's to Fidelity. See if yours is covered.
Frequently asked questions about retirement plans.
Future use only
Comparison of CalSTRS division
Types of retirement Plans
Request for information to plan with joinder documents enclosed - Notice we do not come on strong in dealing with the plan.
Help to the plan in filling out the blank Notice of Appearance form - out of state attorneys or plans may not know how to fill out the blank form to be served on them. This is help to the plan.
Request for the plan to expedite handling of the proposed QDRO - Use this letter when the plan is very slow in responding and doing their job. It is much easier than taking them to court. Notice we do not come on strong. Coming on strong is only the last resort.
Sample request for interpretation letter to QDRO plan - Plan pre-approval of your QDRO is important. Even if you get the QDRO signed by all the parties and the judge, it still needs to be acceptable to the plan. It is a waste of time and money when you send the court stamped QDRO to the plan and it is not acceptable. You are then back to square one of starting all over again.
Proposed order to other attorney - you have the plan approved QDRO order. Now you want it signed by the other side. Here is a possible letter.
Authorization for release of information on plan - When Participant is wiling to authorize the plan to give out information.
Letter to attorney on other side who may want to delay doing the QDRO.
Main features of 401(k) lump sum distributions. - Both with a QDRO and without a QDRO
Danger signals in retirement plans - How do you know your employer is honest about your plan?
Laches in reference to retirement plans - Participant has been getting retirement benefits for years. Now Alternate Payee goes to court to get the back amounts that he or she is entitled to. Does Participant have any defenses?
Nunc Pro Tunc QDRO orders - If Participant has died before you get your QDRO in. Are you out of luck?
Hodge Podge of raw notes on QDRO cases - No special order. We suggest you use Control + F to search key words on what you are interested in.
Notice of adverse claim on plan - Form for putting a "freeze" on the retirement plan.
Demand for information from employee - Form for demanding that the employee reveal information on his or her retirement plan.
Why is it best to do a QDRO during the divorce.
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Please visit the "Links" section on the left. There are links to QDRO information there. In particular see the index sections 23, 34, 35, 50 and 64
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We will add more information in the future to serve our clients and members of the public.
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FOUR REASONS WHY YOU SHOULD HAVE A QDRO DONE DURING THE DIVORCE CASE AND NOT AFTER

A. It is much easier to do the QDRO during the divorce case when the parties are before the court. After the divorce you may have to file a new OSC or motion. This is more expense, the new attorney may have to study the file to get up to speed on the case, more attorney fees, service of process to the other side and possibly taking time off for court appearances.
B. The other side may become angry that you are filing for the retirement benefits and retaliate by filing for a modification in child support, spousal support or other issues.
C. You may let time pass thinking you can file for a QDRO later. Suddenly the other side dies with no survivor annuity for you, marries again and it all goes to the new widow or widower or other changes take place or problems arise. You may be stuck out in the cold without a QDRO. Usually it is the Non-Participant former spouse who does not have the retirement plan in his or her name is the one most likely to suffer. Please see Section 36 on the above bookmarks.
D. You simply want a closure to the case. No dangling issues like a QDRO. You may want to simply get on with your life ands put the divorce case behind you.
For further information on reasons to do a QDRO during the divorce see Section 36 on the above bookmarks.

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BASICS OF LEGAL RESEARCH IN FAMILY LAW

Section 1 This is very basic information for clients or others who want to do legal research on their own. There are three basic sources of information on the law. They are 1. Codes which are the laws written in codes or other sections. 2. Decisional law which is when courts of appeal write opinions on a case and 3. Secondary sources of law which is books and other sources written by people commenting on the cases and codes. The codes and cases can be found at the law library or on the internet.

A good place to start is on this office web site at www.BlaisAtty.com. Click on the "Links" section and go to paragraph 5. California and Federal codes are there and other information which is all free.

1. Codes: The codes are divided into various section. For example, there is the Family Code, Code of Civil Procedure, Civil Code, Penal Code and many others. They are divided into sections. Each section has a separate number. These code laws are passed by the state assembly and state senate and signed into law by the governor. It is a very useful first step in legal research. Sometimes you will see the symbol §. This stands for code section. The number after it is the section number. Sometimes you will see §§. This means more than one section. An example is Family Code section 2337. Obviously this means section 2337 of the Family Code.

The federal government also has codes. They are called the United States Codes. They usually only apply to federal laws. They are usually abbreviated as USC. Certain publishers will abbreviate them as USCS or USCA. An example might be 15 USC 1278. This means "Title" 15 of the United States Code section 1278. "Title" is like a chapter of subdivision of the United States Codes.

2. Decisional law: This is written by the court of appeals or the Supreme Court of California (very few court of appeals opinions are published. Almost all of the Supreme Court's are). These are cases that are appealed and the court makes a decision on them. Usually the "opinion" will discuss the facts of the case, what the applicable laws are and then how the court rules on the facts and the law. These are all cases that have been appealed from the lower courts.

The opinions have what are called "citations" to help you find the case. An example: In re Marriage of Carlson (1991) 229 Cal. App. 3d 1330, 1334. The name of the case comes first. It is In re Marriage of Carlson. The year the court of appeal made its decision is next. Here it is 1991 (1991). The 229 is the volume number. Cal. App. 3d stands for California Appellate reports third series. The last number 1330 is the page number the case starts on. Sometimes the specific page or pages the holding is on is at the end. The comma and then 1334 means the actual holding is on that particular page. Most citations do not have the specific page of the holding. This is to alert you that some do.

The California Supreme Court has their own separate reporter. An example is: In re Marriage of Walrath (1998) 17 Cal. 4th 907. The volume is 17, the Cal. 4th stands for California Supreme Court reports, fourth series, the page number the case starts on is 907.

It is easy to get the supreme court reports and the court of appeals reporters mixed up. They look basically the same except for the title. The wording is similar so be careful. Federal cases have the same volume and page number set up. However the books themselves are separate. Consult the law librarian.

3. Secondary authority: These are books written on the codes and the supreme court and appellate court reports. It is usually a condensation of the two. "Nolo Press" prints some self help books which are secondary authority. California Family Law Reports is another. There are various books that discuss California family law.

KEEP IN MIND IN THE ABOVE. This is just an outline on single sheet of paper. Ask the law librarian for help. Be sure to try to help yourself first. Have this sheet with you. The law library in Riverside is at: RIVERSIDE LAW LIBRARY - 3989 Lemon Street, Riverside, CA 92501 - Phone: 951-955-6390

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Please fill out the below before seeing the attorney about a retirement plan. It will speed up the process. You might copy it and paste in your word processor. Often it prints out better from the word processor.

Is the "Participant" who is the Member spouse or former spouse with the retirement plan in their name.
Is the "Non-Member spouse" or former spouse (Alternate Payee) who has a community property interest in the retirement even if the retirement plan itself is not in their name.
"Beneficiary" Is the person or persons the Non-Member wants to receive their interest in case the Non-Member dies before receiving the benefits. The beneficiary is almost always a child or children of the marriage.

NAME AND PHONE	ADDRESS	SOCIAL SECURITY NUMBER	DATE OF BIRTH
A. Participant Member spouse and phone number:
B. Non-Member spouse and phone number:
C. Non-Member spouse beneficiary and phone number:

ARRANGING THE INFORMATION BELOW AND OTHER INFORMATION: Section 2
     It is rather complicated. It has been put together without reference to the steps you might use in doing a QDRO. This is because many readers are in various steps of doing a QDRO or just thinking about it.

1)     A good first step is to go to section 17 and see if your plan has been outsourced to Fidelity. You might contact the plan as to model QDRO orders that they have. Many attorneys will modify the model orders.  However modifying the orders can be expensive. See below number 6)

2) Much of the below is not in the order for doing a QDRO. Once again many of you are in different stages. I suggest you read them over and see what section may apply to you.

3) Two acronyms you will run across with Defined Benefit plans (Long term retirement where you get a certain amount for life once you reach retirement age) is QJSA and QPSA. QJSA stands for Qualified Joint Survivor Annuity. This provides that, AFTER retirement, if the member dies the alternate payee will receive a certain amount for life. Usually about half what the total benefit would have been if both lived.
QPSA stands for Qualified Pre-retirement Survivor Annuity. This provides that, BEFORE retirement, if the member dies the alternate payee will receive a certain amount for life. Actuaries will figure out the amount. Almost always it is less than the QJSA since the member has not yet retired.

4) Keep in mind that QDRO (Qualified Domestic Relations Order) just applies to private employers. It does not apply to government retirement plans. This is a technical point. Often the word "QDRO" is used in relation to all retirement orders. There are differences with government retirement orders. One difference is that often government plans (like CSRS and FERS and others), the non-employee spouse cannot start receiving benefits directly from the employer till the employee actually retires. Another difference is that in certain government plans (Like CalSTRS and CalPERS) the non-employee spouse can elect to either receive the benefits as a cash out or wait till the employee spouse is retired or eligible to retire and receive a monthly check. Usually the non-employee spouse is better off waiting and getting the money as a monthly benefit later.

5) A very important bit of advice is to work with the plan or the attorneys for the plan. Do not be adversarial. Be a friendly as possible. Both you and the plan have the same basic goals. That is to get a QDRO that is acceptable to the plan, the other side and the court.

6) Some of the plans are starting to charge for reviewing the orders. They say that this is in accordance with D.O.L. (Department of Labor) Field Assistance Bulleting 2003-3. As an example Fidelity is now charging $300 to review the orders generated on their QDRO center web site. However it jumps to $1,200 for orders not generated on their site or those that are materially altered. This is a not so subtle way to encourage you to use the model orders. Fidelity is now doing this. It will not be long before other plans may do the same thing. The money is usually taken out of the plan itself. You don't have to "up front" the money. It means that it will be just a little smaller pie to divide up.

10)

11) Look for other notes and flash news about retirement plans above.

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QDRO FACT SHEET

            Section 3      QDRO orders involve retirement plans. Usually a provision in the divorce judgment that one party or the other receives a certain interest in the retirement plan is not adequate. The retirement plans want a specialized order on this issue. The order must be signed by the judge.
     Getting these specialized orders are important because, in many long term marriages, the retirement plan is the most valuable asset. Often even more valuable than the equity in the house. It is usually not wise to just reserve jurisdiction over the plan for the party without the plan. This is because the party with the plan may die with someone else as the beneficiary, like a new spouse. Usually sooner or later the party who does not have the retirement interest in their name must get a QDRO anyway. Usually it is best to get it in the divorce itself. It saves on attorney fees in just having to hire one attorney and having it all done in the divorce.
     Below are cases involving QDRO type retirement plan orders. They are stated in a simplified way. However they are actual cases. The citations are at the bottom. You might be interested in reading them.
If you know anyone with family law questions please mention this site to them. Thank you. www.BlaisAtty.com   If your case is in the Inland Empire of Southern California please call for a free consultation at 951-247-1977.

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CASES INVOLVING QDRO TYPE RETIREMENT ORDERS

Section 4 The below cases involved QDRO type retirement orders. They are written in a simplified fashion. If you think the case applies to you then perhaps you should read the actual case. The citations are after the decision of the court.
The numbers before the case are control numbers for this office. If you call in we can coordinate your questions with the number of the case. They are in no special order. However all involve QDRO and retirement plans. There are many cases here. When here you might use Control + F to do a key word search for what you are looking for.

79. JUMPING THROUGH HOOPS FOR THE RETIREMENT PLAN Parties divorce in California. Husband has an ERISA retirement plan. The martial dissolution order did not have a QDRO (Qualified Domestic Relations Order is to get retirement money out of the plan) in the opinion of the retirement plan. The money in the plan is all given to the husband. Retirement plan argues: "Ah ha, we caught you. You did not use specific language in the dissolution order that would make this a QDRO. The order did not include your address or the period of time the order applies to. Since you did not specifically have the requirements of a QDRO we were correct in giving the money to husband as per his request." Wife sues and argues: "Even assuming that the dissolution order did not qualify as a QDRO I can still sue. The retirement plan knew I had an interest and should have protected it. Also you want us to jump through hoops to satisfy your specific requirements. It is not reasonable." What would you do if you were the judge?
HOW THE COURT DECIDED
79. Wife wins. QDRO orders should be construed liberally. Even if not all the T's are crossed it can still qualify if the plan administrator can find the information independently from sources readily available to them. The court felt the order does qualify as a QDRO. Also even if it is not a QDRO, under the unique facts of this case the retirement plan knew of her interest and should have protected it. The QDRO provisions of the law do not suggest that wife has no interest in the plans until she obtains a QDRO, they merely prevent her from enforcing her interest until the QDRO is obtained. Stewart v. Thorpe filed 3-31-00 (9 Circuit) 2000 207 F3d 1143. Comment: This is a federal case that requires retirement plans to be more liberal in interpretation of QDRO orders. There are seven requirements for a QDRO.Four things you must do and three things you cannot do.

193. THE RETIREMENT PLAN Dad and mom get divorced. Dad does not pay Child Support. Dad married again and names new wife as beneficiary on his retirement plan. Mom filed motion to get QDRO for the back Child Support owed. Dad dies. Does his new wife get the retirement benefits or do the children? New wife argues: "I should get the retirement benefits. He died before mom got the QDRO. My benefits should start immediately after he died. I am automatically vested with the death of my husband. I'm sorry but the kids have no interest." Mom argues for the kids: "I did a nunc pro tunc QDRO and this is adequate. Just because he died first does not mean I can't get the money for the kids. The children have an interest in the plan. A QDRO only secures the interest. The fact that new wife was the beneficiary when he died does not get her home free." What would you do if you were the judge?
HOW THE COURT DECIDED
193. For the kids for mom's stated reasons. It is possible to do a nunc pro tunc QDRO. There is no requirement that a QDRO order must be in hand before benefits become payable. The court infers that even if benefits had been paid to new wife the kids could still get a QDRO and get benefits. However it would not be retroactive. It is only for future benefits. Directors Guild v. Tise 234 F3d 415 (9^th Circuit 2000)

If you know anyone, friends, family or whatever, with family law questions please tell them about this web site. Be sure to let them know the first consultation is free. "Friends help friends in a time of crisis to get helpful information." Thank you. www.BlaisAtty.com If your case is in the Inland Empire of Southern California please call for a free consultation at 951-247-1977.

183. THE MILITARY SEPARATION PAY Former husband is in the Marines. He is released from Marines and decides to give up his retirement pay and instead choose VSI (Voluntary Separation Incentive) pay. Question is if this is a form of retirement pay. Former husband argues: "This should be my Separate Property. She does have an interest in my retirement but I gave up my retirement. This VSI pay is for me to get out of the military early. It is not a form of retirement." Former wife argues: "You just got this in lieu of your retirement. It is still a form of retirement under another label. They would not be giving you VSI pay without all your years of service." What would you do if you were the judge?
HOW THE COURT DECIDED
183. Wife wins for reasons stated. Husband's argument is a matter of form over substance. Even though it may have a different label it is still a form of retirement income. Most of it is based on his years of service. The bottom line is that California and most states consider VSI pay for the military as Community Property. Marriage of Babauta (1998) 66 Cal. App. 4th 784.

184. THE EARLY RETIREMENT. Former husband retires from Hughes with retirement plan. He is entitled to an early retirement subsidy if he chooses to retire. He keeps working. Former wife wants her benefits based on what he could get if he retired early. Plan says she gets only the normal retirement if she takes the money early. Wife argues: "I should get more money based on the early retirement benefit that he is entitled to. Just because he does not take it does not mean that I should not receive the increased benefit." Plan argues: "If you do get your share from the plan it will be from what his normal retirement plan would be. We want him to retire earlier so we can use younger workers. Former wife can get her money early but it will be based on his normal retirement age." What would you do if you were the judge?
HOW THE COURT DECIDED
184. Plan wins. If she wants to get her money before he retires she must use the normal retirement age. She can't force him to use the early retirement. He can keep working if he wants to. She will get her money but only based on the normal retirement age. What she can do is use the normal retirement age money. If he does take early retirement she can ask to have her interest recalculated in reference to the larger amount. Marriage of Oddino (1997) 16 Cal. App. 4th 67.

173. THE "KEEP WORKING" RETIREMENT Vera and Earl are divorced. Earl keeps working even though eligible for retirement. Vera is upset because she can't get the retirement benefits till he retires. She wants and order to get her share. Earl argues: "I can freely choose to continue to work if I so choose. You will get your benefits but not till I retire. It is only fair that I be able to continue to work" Vera argues: "It's all control isn't it?! I don’t want to force you to retire. I just want to get what my benefits would be if you retired. I want you to pay me my share as if you had retired on the retirement date." What would you do if you were the judge?
HOW THE COURT DECIDED
173. Vera wins for reasons stated. Earl should not be able to limit Vera getting her share. The amount that he could have retired at can be computed. He can then pay her her share based on that computation. The other side of the coin is that she can't have it both ways. If she starts receiving benefits she gives up increased payments in the future which might accrue due to increased age, longer service and a higher salary. Thus, if Vera chooses to receive her share of the retirement benefits immediately, she will forfeit her right to share in the increased value of those benefits In the future. Marriage of Gillmore (1981) 29 Cal.3d 418. Keep in mind that this is an ERISA plan and not a government plan. In some government plans Vera would not get her payments till he actually retired.

200. THE INSURANCE POLICY Dan has ERISA life insurance. He names wife Christine as his beneficiary. He divorces wife. In judgment there is an order that Michigan has in all judgments that insurance policies. The order is that all beneficiary designations in life insurance for the spouse are void. The old spousal beneficiary is revoked and the new beneficiary is the estate or new named person. Dan dies. He never took wife off the policy. Former wife and daughters (who would receive the interests in his estate) both claim the money. Christine argues: "He kept me on as the beneficiary. It is ERISA life insurance which is federal and preempts the state law. I should receive the money because I was the named beneficiary." Daughters argue: "We should be the beneficiaries. By state law the named beneficiary at the time of divorce is revoked. Therefore the money should go to us." What would you do if you were the judge?
HOW THE COURT DECIDED
200. Wife wins for reasons stated. ERISA type insurance is by federal law and preempts state law. The state law could say anybody in the world is or is not the beneficiary and it would have no effect. The ERISA policy goes by federal ERISA law. The daughters should have had a QDRO order in the judgment of divorce. Metro LIfe v. Mulligan (2002) 210 Fed. Supp 2nd 894.

IF YOU KNOW OF ANYONE WITH FAMILY LAW QUESTIONS, WHY DON'T YOU TELL THEM ABOUT THIS WEB SITE? THIS MAY BE A HELP TO THEM. "FRIENDS HELP FRIENDS IN A TIME OF CRISIS." YOU MIGHT URGE THEM TO CALL IN FOR A FREE CONSULTATION. If you have a question, why not call now for a free consultation at 951-247-1977. www.BlaisAtty.com

203. THE QDRO AFTER DEATH Parties divorce and in judgment it says that wife has an interest in his retirement plan. However a valid QDRO, which is a specialized type of retirement order, is never done. Husband married again and dies. New wife wants the money. Old former wife wants to do a QDRO to get her interest. New wife argues: "Old wife should get nothing. A valid QDRO was not done. I am the surviving spouse for the survivor benefit and should receive the money. I was the wife at the time of his death. I should receive the entire spousal survivor benefit. This is the rule for ERISA which is a federal law and it preempts state law. Just too bad for the old wife." Old former wife argues: "I can do a QDRO retirement order and get my fair share. It is only fair since I was married to him for so long and we mentioned that I had an interest in the divorce judgment. We tried past QDRO orders but they were not accepted. Justice demands that I get my fair share." What would you do if you were the judge?
HOW THE COURT DECIDED
203. New wife wins. Old former wife should have done her QDRO before he died. Once the death of the Participant in the plan it freezes the interests. It is like the Statute of Limitations in a personal injury action. You must get the QDRO before he dies or it all goes to the new wife. Stahl v. Exxon 212 F.Supp. 2d 657 (S.D. Texas 2002). Comment: Often in dissolution judgments the court just reserves jurisdiction over the retirement plan. This could be devastating for the former spouse in case the Participant has remarried and there is no QDRO order in effect. Comment: This case involved retirement plans.

204. THE RETIREMENT INTEREST Al and Anna divorce. Order in judgment is that she is to receive 47% of his retirement benefits. She dies before Al retires and children want her 47% share or Al wants to get the entire amount. Not just the 53%. Children argue: "We should be entitled to this interest and do what we want to do with it. We have documents showing she left it to us. This is a right she had and she can leave it to her heirs." Al argues: "I should receive the entire amount or the kids can give me theirs. This was never a QDRO in the first place. Since she died first I should get the part that was going to go for her." What would you do if you were the judge?
HOW THE COURT DECIDED
204. Al wins. First of all this was not a valid QDRO order in the first place. On that basis alone the children's claim fails. Al wins because there was no QDRO in place. As far as policy goes the concern of ERISA is to provide for the living and not the dead. A former spouse cannot will her interest to others unless they also qualify as a former spouse, child or other dependent of the Participant. Branco v. UFCW 279 F.3d 1154 (9^th Cir. 2002). Comment: This case involved retirement plans.

230. THE RETROACTIVE QDRO Husband divorces Margot and court reserves jurisdiction over his retirement. Husband then marries Louan and dies one month after he is eligible to retire. Question is, who gets the surviving spouse benefits? Louan argues: "I was the wife at the time of his death. I should get the surviving spouse benefits. Margot never had a QDRO in effect to secure her interests. The death of husband means I should be able to get the surviving spouse benefits." Margot argues: "This is not fair. I was married to him for many years and should be able to do a nunc pro tunc QDRO that goes back in time and is retroactive. I put in over 20 years in this marriage. I should still have my rights even though he has died." What would you do if you were the judge?
HOW THE COURT DECIDED
230. For Margot. This is the Supreme Court of Hawaii. Several federal cases have said the former wife has no rights after the former husband dies unless she has a QDRO in effect. This is relief for those former wives who never did get a QDRO. Problem is that this is a Hawaii and not California case. In state decisions of appellate courts are binding. Out of state decisions are persuasive only. Hawaii is better than nothing. Torres case, filed 12-17-02 in Supreme Court of Hawaii. 100 Haw. 397. also at 60 P.3d 798 (2002)

231. THE QDRO THAT WAS NOT MAILED IN. Barbara and Mark divorce. They don’t do a formal QDRO but rather a property settlement agreement. They spell out various rights in the property settlement agreement as to the retirement plan but do not mail it to the retirement plan. Mark dies years later. Does the retirement plan have to pay Barbara? Retirement plan argues: "It was not a formal QDRO and you never sent it in to us. The first time we found out about it is after Mark died. This should not be treated as a QDRO order." Barbara argues: "Our property settlement agreement spelled out the four requirements of a QDRO and did not have the three things forbidden in a QDRO. The fact that we did not mail it in does not defeat it being a QDRO. I should receive the benefits." What would you do if you were the judge?
HOW THE COURT DECIDED
231. Barbara wins for reasons stated. The property settlement agreement substantially satisfied the requirements for a QDRO. The requirements for a QDRO are at 29 USC 1056 (d) (3) (C) and (D). The fact that the plan did not receive it till after the Participant's death does not defeat the claim of the Alternate Payee. Smith v. Estate of Smith 248 F.Supp2d 348 (D.N.J. 2003). This is a New Jersey Federal case. It seems that the court wants to find a QDRO to help Barbara.

16. "WHAT IS MINE IS MINE AND WHAT IS YOURS I GET HALF OF"      Husband and wife have been married 20 years. Wife is a government worker who does not pay into social security but has a STRS, PERS or other government retirement plan. Husband has social security. Upon divorce husband wants half of the interest in her governmental retirement plan built up during marriage. Wife wants half his social security benefit or an offset against the value of her retirement. Dad argues: "The law is the law. I get half of her governmental plan and she gets none of my social security. My social security is mine without any offset. There are derivative benefits to her that she may be entitled to like the "ten year rule" on my benefits, but that is all." Wife argues: "This is not fair. I have been paying into the governmental plan for all these years and he gets half. He has been paying into social security all these years and I get nothing. Even if I did qualify for the ten year rule it would be no money out of his pocket. It is not fair. There should be an equalization or offset between the value of my plan and his social security benefits." How would you rule? You be the judge!
HOW THE COURT DECIDED
16. Husband wins. Social security is separate property and is never divided or offset against the other parties retirement plan. Marriage of Nizenkoff (1976) 65 Cal. App. 3d 136. For information on derivative benefits call Social Security at 1-800-772-1213. If you object to this contact your U.S. congressman or senator. They can change this.

17. THE CASE OF THE LONG LIVING LADIES. Women in governmental retirement plan find that they must put more money into the plan to receive the same benefits or, if they put the same amount in, receive less benefit upon retirement. Governmental retirement plan argues: "This is only fair. Women statistically outlive men. Otherwise men would be subsidizing the women. Women should only naturally pay in more since they live longer. To rule any other way would be sex discrimination against men since men would be subsidizing the longer living women." Women argue: "This violates Title VIII of the Civil Rights Act of 1964. We women should not have to pay more in or receive less just because we statistically out live men. Afro-Americans statistically do not live as long as whites. They don't have to put less in because of this. This is sex discrimination against women." How would you rule? You be the judge!
HOW THE COURT DECIDED
17. Women win. This does violate Title VIII of the Civil Rights Act of 1964. As decided by the U.S. Supreme Court in City of Los Angeles, et al (1978) 435 US 702 and Arizona, et al (1983) 463 US 1073

23. "THE RETIREMENT BENEFIT CAME AFTER SEPARATION SO IT IS MINE ALONE!" Ex-husband is in the Marines. At dissolution the court reserves jurisdiction over his military retirement. Marines are doing a drawdown in strength (downsizing). Two years before retirement he decides to forego his retirement pay, instead choosing to receive 36 annual payments. Ex-wife claims an interest. Ex-husband argues: "This pay is before my retirement. It is a cushion for job loss and job dislocation and not payment for past services rendered. It should be my separate property." Ex-wife argues: "He can't defeat my interest in his retirement benefits by invoking a condition wholly within his control. I still have an interest in the benefit because he is taking it instead of the retirement. If he gets this as his separate property it leaves me with nothing because he is giving up his retirement for it." What would you do? You be the judge!
HOW THE COURT DECIDED
23. Ex-wife wins for the reasons she stated. This is in the nature of retirement benefits even if it does not have that label. Marriage of Babuta (1998) 66 Cal. App. 4th 784.

26. WHO QUALIFIES AS AN ALTERNATE PAYEE?" Qualified Domestic Relations Order (QDRO retirement plan order) is prepared where the ex-wife is the alternate payee. In case she dies she leaves her interest to a "successor in interest" who is not spelled out. She then dies. Issue is: Does the retirement plan have to pay the remaining interest to the successor in interest? Retirement Plan argues: "We can only leave the benefits to someone who would be an alternate payee themselves. An alternate payee is spelled out in the law. She otherwise could leave the interest to anyone in the world." Ex-wife estate argues: "It is her interest and she can leave it to anyone she wants to leave it to." What would you do? You be the judge!
HOW THE COURT DECIDED
26. Retirement plan wins. A beneficiary of the plan must also be a person who could have been an alternate payee. This could only be the "spouse, former spouse, child or other dependent of a participant" 29 USC 1056(d)(3)(K). Court stresses that this is a very narrow ruling. Marriage of Shelstead (1998) 66 Cal. App. 4th 893.

If you know anyone, friends, family or whatever, with family law questions please tell them about this web site. Be sure to let them know the first consultation is free. "Friends help friends in a time of crisis to get helpful information." Thank you. www.BlaisAtty.com If your case is in the Inland Empire of Southern California please call for a free consultation at 951-247-1977.

39. "I'VE BEEN DOWNSIZED OUT AND THE BENEFIT IS ALL MINE." Husband worked for company that has pension plan. They are divorced and the court reserved jurisdiction over the pension plan. Company is downsizing and wants husband to retire. They offer enhanced retirement benefits if he does retire. He does and ex-wife wants part of the enhanced pension benefits. Husband argues: " Yes, you do have an interest in the pension plan but not the enhanced part of it. This opportunity happened after the divorce and you should not share in it. This enhancement is, in essence, a severance payment and the enhanced portion should be my separate property." Ex-wife argues: "This was not a severance payment either in name or nature. It was an increase in retirement benefits and I should share in it. I have an interest in your pension plan and should have an interest in the enhanced portion also." What would you do? You be the judge!
HOW THE COURT DECIDED
39. Ex-wife wins. The enhancement is a modification of an asset and not the creation of a new one. This was never a severance payment. It was an increase in retirement benefits and ex-wife should share. Marriage of Lehman (1998) 18 Cal.4th 169

54. THE RETIREMENT PAY IS NOW DISABILITY PAY" Divorce gives Patricia a 25% interest in Robert's Air Force retirement plan. Robert retired from the Air Force after the divorce. His retirement benefits were converted to disability benefits. Robert argues: "Since there is now no military retirement but only disability she should not share in anything. The law is that retirement benefits are divisible in divorce but not disability benefits. She gets nothing". Patricia argues: "The only reason he converted to disability benefits are because they are more than what his retirement would have been and it is tax free. I should share in these benefits." What would you do? You be the judge!
HOW THE COURT DECIDED
54. Patricia wins. The court gives a resulting trust theory that carries out the inferred intent of the parties. The inferred intent was that she receive 25% of his retirement pay. The court will carry out this inferred intent. Marriage of Krempin ) 70 Cal.App.4th 1008, 1021, filed 3-18-99. The court stressed that the parties "reserved jurisdiction" over the military retirement plan. Good idea to always reserve jurisdiction over the retirement plan. As an aside, Patricia probably got more money here since the disability income was greater than the regular retirement income.

72. "MY WIFE DIED. WHERE IS MY PENSION PAYMENT?" Retirement plan QDRO done where wife gets one half till she dies. She dies and retirement plan wants to cut his benefits in half and not give him the other half. Plan argues: "As per the retirement order she received half of the retirement plan. She has died and her interest died with her. You do not get the other half of the retirement that was going to her." Ex husband argues: "This is not fair. The plan did not authorize a reduction in payments upon her death. She had no interest in my plan except by the QDRO and the QDRO did not specifically stipulate that her interest died with her and I would get only one half after her death. " What would you do? You be the judge!
HOW THE COURT DECIDED
72. Ex husband won. Upon wife's death husband receives the full amount of the pension payment. If it was to be a reduction then the QDRO would have to specifically say so and it did not here. Marriage of Rich (1999) 73 Cal. App. 4th 419.

147. "I'VE BEEN SHORTED ON THE RETIREMENT PLAN" Ed worked for Flying Tiger Airlines. There were two retirement plans. Date of Marriage is 1962. Date of Separation is 1982. Ed worked for Flying Tiger from 1966 to 1989 when Flying Tiger merged with FedEx. He then worked for FedEx till he retired in 1996. Retire plan #1 became fixed in value in 1989. Retire plan #2 was intertwined with the new FedEx when the merger took place. Should the 7 years after the merger be counted in figuring the Community Property portion? Wife argues: "Plan #1 was fixed in time in 1989. The denominator for the time should be just the time he was working for Flying Tiger. Plan #2 the same argument applies." Husband argues: "No, we should use the total time from 1966 to 1996 when I retired for the denominator to figure her share." What would you do? You be the judge!
HOW THE COURT DECIDED
147. For wife on Plan 1 because the time with FedEx was not a factor in the plan. Consequently adding in the 7 years would just dilute her interest. Plan 2 for husband since it was tied into the FedEx plan. Marriage of Bowen, filed 8-29-01. (2001) 91 Cal. App. 4th 1291. I apologize if this is hard to follow. Complicated facts.

150. DOES FEDERAL LAW SUPERSEDE? Man in Washington State has Boeing retirement plans. These are covered under federal ERISA (Employee Retirement Income Security Act) law. She is the beneficiary in case of his death. He dies after divorce and forgets to take her off as his beneficiary. Washington State has law that once divorce entered beneficiary designations on non probate assets are automatically revoked and proceeds go as if she had died before him. Issue is if the retirement plans go to the children of the first marriage or to the former wife who he divorced but left her on as beneficiary? Ex wife argues: "The retirement plans were covered by federal law under ERISA and federal law pre-empts state law in this situation. It is spelled out in the ERISA law itself." Children argue: "No, you should receive nothing. Washington law is very specific that the beneficiary designation is revoked on divorce. Washington law should apply. Usually divorce law is governed by state and not federal law." What would you do? You be the judge!
HOW THE COURT DECIDED
150. Ex-wife wins on her stated reasons. ERISA does spell out that is supersedes the state law. The retirement plans were covered under federal law and that is the law that applies. Marriage of Egelhoff, (2001) 532 US ____. This was a United States Supreme Court case. They rarely handle family law. Something not answered is what if ex-wife murdered her former husband. Would she still receive the proceeds? States have laws on this but not here.

151. "I'VE GAINED A PENSION BUT LOST ON SPOUSAL SUPPORT" In divorce husband gets Community Property pension plan and wife other Community Property. Ex-husband retires and gets money from pension plan. Ex-wife wants to use the pension money for figuring additional Spousal Support. Ex-wife argues: "He has income from the pension plan and that should be considered for additional Spousal Support. Just because he got it in the judgment is no reason not to use it for Spousal Support." Ex-husband argues: "Oh no, it is not like that. This was a property award and should not be considered for Spousal Support. It was a division of the Community Property and it is what I received. It is double dipping to call it a property division and then use it for additional Spousal Support." What would you do? You be the judge!
HOW THE COURT DECIDED
151. Ex-wife wins. After the judgment the pension plan became his Separate Property. It can be used for figuring additional income for Spousal Support. Marriage of White (1987) 192 Cal. App. 3d 1022. They should have divided the property by giving her a percentage share. This is a danger in divorce. The pension plan money can be used for additional Child Support and Spousal Support. In essence it really is a form of "double dipping." You can do a written stipulation to be put in the judgment that the money from the pension will not be considered income. However if the other side won't agree you are stuck. Do the QDRO for sure then.

154. THE EARLY RETIREMENT PLAN AND THE THRIFTY SPOUSES Louis, during marriage, has a retirement plan. It provides for an Early Retirement Benefit (ERB) if he retires early. He and Jennifer divorce and he takes ERB after the separation. Does she have an interest? Also during marriage they are very thrifty and save money. Should this be a factor in long term Spousal Support? Louis argues: "The ERB is a form of severance benefit. It pays me if I don’t work and I retired early after separation. It should be my Separate Property. In reference to the saving: Sure we saved money and lived within our means frugally. However this should not be a factor in an order of permanent Spousal Support." Jennifer argues: "The right to the ERB accrued during marriage. Even though you took it out after marriage it is still partly Community Property if the right to it was acquired during marriage. On savings: Our practice of saving so much money should be considered as part of our marital standard of living in figuring Spousal Support." What would you do? You be the judge!
HOW THE COURT DECIDED
154. For Jennifer on the ERB. He would not have had the benefit if it had not been for his work during the marriage. The ERB benefit accrued during the marriage so she has an interest. On the savings for Jennifer again. The parties practice of saving money should be considered by the court in setting permanent Spousal Support. Marriage of Drapeau, filed 10-30-01 (2001) 93 Cal. App. 4th 1086. There were two issues here and I have to work them both in. Rather awkward. I apologize. Most important part is the retirement plan. Louis had an income of a million dollars per year before he retired. This is not a typical case.

157. THE TWO WIVES ERISA pension case. Mary was married to Herb in 1955. She never divorced him after they separated. Herb married Dorothy in 1971. Herb had a retirement plan and died in 1985. Who is entitled to his surviving spouse benefits? Mary argues: "We were never divorced. We were still married when he died. Even though we had not lived together for 34 years I am still his wife. There is a Florida presumption on second marriage being considered valid, but I rebutted the presumption by showing my marriage to Herb and that I am still alive and we were never divorced." Retirement plan argues: "Under Florida law the second marriage is presumed valid. Dorothy was the last marriage and should be considered valid." What would you do? You be the judge!
HOW THE COURT DECIDED
157. For Mary. Dorothy was not a party to the action. Mary was trying to get the money from the pension plan and was successful. Social security was also involved. You can be sure that Dorothy will now go to court also. Davis v. Armco 169 F.Supp2d 164 (W.D.N.Y 2001). The lesson here is that if you marry someone who was previously married be sure that they really are divorced. If you have a previously existing marriage all the subsequent marriages are void unless the first marriage legally ended.

165. "I'VE DISCOVERED A PENSION" Ex-husband and ex-wife divorce. Ten years later he dies. Ex-wife discovers that he has another pension plan she did not know about. It was never adjudicated. She goes back into state court and gets a QDRO retirement order nunc pro tunc (This is Latin for "Now for then". It is an order that goes back into time when the order could have first been made.). There have been no proceeds disbursed from the plan and no other person was named as Alternate Payee. Ex-wife argues: "We can do a QDRO even though he has died. The retirement plan has suffered nothing. There is no legal reason why we can't get an order even though my ex-husband has died." Retirement plan argues: "What is going on here? The money he paid in reverts back to the plan since he left no surviving spouse. There is no provision in ERISA for nunc pro tunc orders." What would you do? You be the judge!
HOW THE COURT DECIDED
165. For ex-wife for reasons stated. There is no provision in ERISA that authorizes nunc pro tunc order after the participant dies. However there is no provision that says it can't be done. Here the man died with no new wife and the forgotten retirement plan had not paid out any money yet. A nunc pro tunc order can be made when no proceeds from the omitted plan have been disbursed nor a competing Alternate Payee identified. Patton v. Denver Post Corporation, 179 F. Supp2d 1232 (D Colo. 2002).

If you know anyone, friends, family or whatever, with family law questions please tell them about this web site. Be sure to let them know the first consultation is free. If your case is in the Inland Empire of Southern California please call for a free consultation at 951-247-1977. "Friends help friends in a time of crisis to get helpful information." Thank you. www.BlaisAtty.com

172. THE RETIREMENT PLAN - Melvin is divorced from Jeanne. He has retirement with Orange County Retirement (OCERS shortened to OCR). He keeps working even after he is eligible to retire. Jeanne wants OCR to pay her the money she would be entitled to if Melvin retired. Jeanne argues: "He is eligible to retire. Case law holds that if he keeps working I am entitled to what his retirement share to me would have been if he had retired. I want OCR to pay this to me." OCR argues: "Yes, you are right. Case law holds that this is true. However we don't have to pay you, Melvin does. The case you mention is Marriage of Gillmore and Gillmore does not identify who the person or entity from whom the nonemployed spouse is to receive payment. The rules of OCR forbid paying any money out till actual retirement. Hence Melvin must pay you your share out of his own pocket. "What would you do? You be the judge!
HOW THE COURT DECIDED
172. OCR wins for reasons stated. This may create problems in that Melvin will not pay, pay late, not pay at times and a host of problems. However this is the law when the plan forbids payments till the actual retirement. This is a government retirement plan and not an ERISA plan. Marriage of Jensen (1991) 235 Cal. App. 3d 1137.

174. THE MARITAL SETTLEMENT AGREEMENT - Bill and Susan divorce. They draw up a Marital Settlement Agreement (MSA) that says that she shall receive benefits when he "begins receiving retirement benefits." He keeps working past retirement and now Susan wants her money. Bill argues: "Susan should not get her share till I retire. It was stated in the agreement that she only gets her share when I start receiving my benefits. I have not received any benefits yet so she should not get any as per our agreement." Susan argues: "Not fair. We did have an agreement but I never expressly revoked by rights to receive benefits under Marriage of Gillmore that provides I can get benefits when Bill is eligible to retire." What would you do? You be the judge!
HOW THE COURT DECIDED
174. For Susan for reasons stated. For her to waive her Gillmore option of getting her benefits when Bill is eligible to retire (rather than when he actually retires) she would expressly have to do so in the Marital Settlement Agreement. It can't be implied. If she does so waive it must be an express provision. The law has situations when "magic words" must be used. Pleading guilty in criminal court is similar. It is a real job. Marriage of Crook (1992) 2 Cal. App. 4th 1606.

176. THE RETIREMENT PLAN - When married husband had wife Antoinette as beneficiary on his ERISA life insurance. They get divorce and order is that he keep kids as beneficiaries on the life insurance policy until they turn age 18. He does so and children are all over 18. He then dies. Old ex-wife Antoinette is still the beneficiary from when they were first married. New wife Diann wants the proceeds as part of his estate. Issue is what happens to the money. Antoinette argues: "He listed me as the beneficiary. He did it years ago when we were first married. The stupid jerk never changed the beneficiary and so I get the money." New wife Diann argues: "No, the money goes to his estate and then me as the estate succession. The dissolution order he got for the kids is a form of QDRO and changed the beneficiary. When the kids turned age 18 the beneficiary designation in the QDRO order expired. Consequently when he died the money went to his estate as per the terms of the ERISA insurance." What would you do? You be the judge!
HOW THE COURT DECIDED
176. Diann wins for reasons stated. Antoinette was named beneficiary but the terms of the dissolution judgment changed the beneficiary designation to be the kids till they were age 18. After they were all age 18 there was no longer a beneficiary. The money then goes to his estate and current wife Diann will get the money. Seaman v. Johnson (2002) 184 F.Supp2d 642 (E.D. Mich). This is an unusual example of the strange things that can happen in the law.

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THIS OFFICE DOES QDRO TYPE RETIREMENT PLAN ORDERS

Section 5 If you are checking out various attorneys for representation you might ask about QDRO retirement plan orders. Our office does most of them. Most other law offices do not do these. Keep in mind that in many marriages the pension or other retirement type plans may be the most valuable assets. Often retirement plans are more valuable than the equity in the home. Below are samples of the type statements attorneys or paralegals may make as to why the law office does not do QDRO type orders. Usually the statements are made in very self confident tones as if there is no question but that they are right. Below are two typical examples:

· "We don’t do QDRO orders because it is less expensive to refer them to another attorney who specializes in these. We are saving you money in referring it out because it would be more expensive for our office to do a QDRO."

Here are some facts you should know:

a) Most attorneys don’t do QDRO orders because they don’t have the time to learn how to do them. It takes a lot of reading and research to learn. Our office has taken the time for reading and research. We don't charge any extra for the time and research we have already done.

b) Most attorneys have never had the time to read books on QDRO orders or attended classes on doing QDRO orders. Our office has done both.

c) The retirement plans themselves usually have model wording for orders on doing the QDRO type orders. The main complaint about the model plans is that the administrators want the orders to be simple for them to process and administer. Our office uses the model orders and modifies them to provide more benefits and protection. We also know how to process QDRO orders through court even if the other party refuses to sign them.

d) It is true that it is less expensive to refer it out, because the law office does not do them and would have to do background research. Our office does do QDRO's. We have done the background research and have many in template form on the computer. We do not charge extra for doing QDRO orders.

· "We'll just reserve jurisdiction over the retirement plans. Later you can hire another attorney to do the QDRO."

Here are some facts you should know:

a) Almost all authorities are in agreement that it is best to do the QDRO when doing the divorce case itself. If there is a court hearing in the divorce case the QDRO order and other issues can be adjudicated at the same time.

b) After your case is over and you go to the other attorney to do the QDRO it is quite expensive. A new file must be set up, service of process on the former spouse, the attorney must get up to speed on certain facts, there may be extra charges for travel time to court for the attorney and other costs. After your divorce is over and your attorney refers you to another attorney for the QDRO, call that new attorney and ask where that attorney's office is at, what the consultation fee is and what the fee will be for handling the QDRO order if it has to go to court. You might be surprised.

c) Just doing a joinder and reservation of jurisdiction in the judgment may not be adequate. Often times years go by before the QDRO is drawn up, if ever. If the Participant with the plan gets married again and dies, the new spouse may end up with all the benefits regardless of the joinder and reservation of jurisdiction.

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If you know anyone with family law questions please mention this site to them. Thank you. www.BlaisAtty.com If your case is in the Inland Empire of Southern California please call for a free consultation at 951-247-1977.

HOW WILL OUR IRA ACCOUNTS BE DIVIDED?

Section 6 Often in a dissolution there is a separate or community property IRA account. If the party in whose name the account is in receives that IRA account as his or her separate property there is no problem in the division.

Often an IRA will be divided with one party taking a certain percentage or a certain amount from the IRA in the other parties name. There are certain general procedures in this. There is a certain amount of “jumping through hoops” involved.

BACKGROUND IN TAX ASPECTS

Usually there is no taxable gain or loss recognized on a transfer of property from one spouse to the other in a divorce situation. The transfer of all or a part of an interest in an IRA under a decree of divorce or written instrument incident to the decree is not considered a taxable transfer. However there are concepts of penalties and taxes for the withdrawal of the funds. While the transfer of an interest of one spouse to the other spouse of a retirement plan may not be taxable it will be taxable when the funds are withdrawn.

The following is taken from IRS publication 504 entitled: “Divorced or Separated Individuals for use in preparing tax returns”. It is from page 12 under Qualified Domestic Relations Order. “If you receive an eligible rollover distribution under a QDRO as the plan participant’s spouse or former spouse, you can generally roll it over tax free into an individual retirement arrangement (IRA) or another qualified retirement plan. This applies to taxable distributions other than required distributions (generally, distributions that must begin once you reach age 70 1/2) and certain long term periodic payments.

“You can choose to have the distribution paid directly to the new plan. If any part of the taxable distribution is paid to you, 20% will be withheld for federal income tax. You can still make a tax free rollover to another plan or an IRA within 60 days, but for a complete rollover you must add funds from another source equal to the tax withheld.

“If you roll over only part of the taxable distribution, you cannot use the special lump sum distribution rules to figure the tax on the part you keep. If you are under age 59 1/2, any taxable distribution you keep may be subject to an additional 10% tax on early distributions”.

MECHANICS OF HOW THE TRANSFER IS MADE

Different savings or mutual funds will have different rules. The below is a typical scenario of when the IRA is in one persons name and a part of it is being transferred to the other party..

1. The IRA fund will need a certified copy of the dissolution decree or a certified copy of the order concerning the IRA fund. Often they want the copy to be certified in the last 60 days.

2. The order must state specifically the name of the plan, account number, whose name it is in, who is being transferred to and any other pertinent information on the plan and parties.

3. The amount to be transferred must be specified as to a specific dollar amount OR a percentage amount AS OF A CERTAIN DATE.

4. The person with the account in his or her name must make a “letter of instruction”. This letter must state what is in the dissolution decree concerning the above paragraphs 1 and 2. The signature must be guaranteed by a bank or other financial institution.

5. There must be a “letter of instruction” from the receiving party. The letter must match the dissolution decree concerning paragraphs 1 and 2. There also needs to be a signature guarantee and the receiving party must state whether he or she wants to cash out the money or transfer the money into his or her own IRA.

6. IF IT IS A CASH OUT: The receiving party, in the letter of instruction, must specify his or her address. That party must state they want a cash out. The receiving party may also need a W- 9 form from IRS. This form just basically states what your SSAN is and is signed by the receiving party. Keep in mind there will be a penalty on any direct withdrawal to a party (not another IRA) unless the provisions of the above section on taxes are involved (being age 59 1/2) .

7. IF THERE IS A TRANSFER TO ANOTHER IRA IN THE RECEIVING PARTIES NAME: This must be mentioned in the letter of instruction. Obviously the receiving institution must be spelled out with name, address, account number and any other necessary information. The receiving party should also contact his or her own IRA as to procedures to transfer it in. The IRA plain already in the receiving parties name will probably want an application form to be sent to the transferring IRA.

The bottom line in any transfer out is that a new IRA is set up, for administrative purposes only, with the old IRA. From there the money is sent to the party or that parties IRA account.

The above procedure varies with different companies. It is best to call both the IRA transferring the funds and the IRA that will receive the funds unless the receiving party wants a cash out.

Keep in mind that the receiving party will have a tax liability, as mentioned in the first part, for any money he or she takes out.

A key factor here is that the parties must be willing to cooperate and sign documents to make the transfers. If one party does not follow through it will be back to court again and more attorney fees. If the other party is not cooperating be sure to document in writing with a diary or journal just what happened. Keep copies of any letters sent. This is so the cooperating party can ask the court for an attorney fee order against the non-cooperating party.

IF WORSE COMES TO WORSE THE IRA COMPANY, BANK, ETC. CAN BE JOINED AS A PARTY TO THE ACTION. THE COURT CAN THEN MAKE DIRECT ORDERS AGAINST THE IRA.

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RETIREMENT PLAN LINGO AND BENCHMARK AGES

Section 7 Below is some of the lingo and phrases used in reference to retirement plans (This is from 2002 and things may have changed):

· ACCOUNT BALANCE – For plans such as IRA's, 401(k) plans and other defined contribution plans. We want to know how much is in the account. The amount may simply be called the balance.

· ACCRUED BENEFIT – The amount that has been earned or has accrued in a retirement plan as of a certain date. Usually a defined benefit plan of long term retirement.

· DEFINED BENEFIT PLAN - A plan which the employee's retirement benefit is fixed, based on a specific formula. Usually you do not "cash out" of a plan like this. You usually receive the benefits over a period of time after retirement.

· DEFINED CONTRIBUTION PLAN – A plan in which the employee and sometimes the employer contributes to a retirement account, often at regular intervals. Usually it has a specific value as the account balance.

· FULL PLAN DESCRIPTION – This is the summary plan description with more information. Usually the Summary Plan Description is adequate.

· QUALIFIED PLAN – A retirement plan that qualified for certain benefits described in section 401 of the U.S. Tax Code. Usually no tax liability is paid till the person retires or starts taking benefits.

· SUMMARY PLAN DESCRIPTION – Employers are required to issue a description (usually yearly) outlining the status and terms of retirement plans. This summary should tell you the amount of benefits that the account accumulated in your name or your spouse's name.

BENCHMARKS TO RETIREMENT:

Most people think of age 65 as the standard retirement age. Nonetheless, other birthdays are important preparing for the after work years. By noting these key ages ahead of time, you may be able to minimize taxes, and maximize benefits.

Be sure to review retirement plans. Each plan has it own rules about at which age retirement benefits can begin. In some circumstances you may choose to receive your retirement benefits early, but your monthly benefit will be lower. The benefits administrator can give you more information on what retirement benefits are available to you and the ages at which you can begin receiving these benefits. Call the Benefits or Plan Administrator for information. Most employers also provide employees with a statement showing an estimate of retirement benefits to early and regular retirement ages. Ages to note include:

· 55. If you retire, quit or are fired and are age 55 or older, you may receive benefit from an employer sponsored qualified plan without having to pay a 10% penalty. This exception does not apply to either personal or employer sponsored IRA distributions.

· 59 ½. You are allowed to withdraw funds from personal and employer sponsored IRA's and retirement plans without paying the 10% penalty.

· 60. Widows and widowers become eligible for Social Security benefits.

· 62. You may be eligible to receive Social Security benefits, but benefits will be less than if you retire at age 65 or later.

· 65. Retirees qualify for Medicare benefits.

· 67. Full Social Security benefits are available for anyone born in 1960 or later. The actual age at which full Social Security benefits are availble depend on the year in which you were born. For those born before 1938, full Social Security benefits are available at age 65. For those born later, the retirement age is between 65 and two months and 67, depending on your birth year.

· 70. Full Social Security benefits are available, even if you continue to work full time.

· 70 ½. You're required to begin taking distributions from IRAs (except for Roth IRA plans) by April 1 of the year following the calendar year in which you reach age 70 ½. For other employer sponsored qualified retirement plans, distributions must begin by April 1 of the year following age 70 ½ or the year of retirement, whichever is later. If the participant is at least a 5% owner of the business, distributions must begin at age 70 ½.

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INFORMATION ABOUT LUMP SUM DISTRIBUTIONS

Section 8 The below is from a publication put out in 1999 by Met Life. It may have changed in time. You should check with your tax advisor. The information is in reference to 401(k) plans, IRA plans and other retirement sums that have a cash in value.

WHAT IS A LUMP SUM DISTRIBUTION? This is a large sum coming your way, courtesy of your retirement fund. It may come to you when separated from your employer, a job change, divorce or other reasons.

WHAT ARE THE OPTIONS? There are four major options:

1. Take your money and pay the taxes. This may be an option to consider if you need the money and the amount is fairly small. The primary drawback is that you will lose a large chunk of money immediately to taxes. What's more you lose the benefit of tax deferral unless you reinvest the money in a tax favored investment such has a tax deferred annuity. This means that any future earnings on the remaining balance, if reinvested, will be taxed as they are earned.

2. Take the lump sum and use tax averaging. This is only an option if you are age 59 1/2 or older. Although you still pay the penalties the first year, your tax savings could be substantial since it allows you to figure your tax as if you had received your lump sum over a five or ten year period.

3. Deposit the money into an IRA or other qualified retirement plan or a new employer's plan. The advantage of moving your money to another qualified plan is that it may continue to grow tax deferred until you begin to withdraw it. There are two ways to deposit the lump sum in an IRA or other qualified plan.

One is to arrange a direct rollover. You never take receipt of the money personally. This eliminates the IRS requirement that the employer withhold 20% of the distribution. This is the best method usually.

The other is to take receipt of the lump sum and then deposit it within 60 days into an IRA or a new retirement plan. The problem with this option is that you will lose the 20% for the withdrawal.

4. Leave your money in your current employer's plan. This may make sense if your employer's plan offers better interest rates or investment options than other savings or investment plans. Leaving your money with your former employer has no immediate tax consequences, and you can always roll the money into an IRA at a later date.

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IF YOU KNOW OF ANYONE WITH FAMILY LAW QUESTIONS, WHY DON'T YOU TELL THEM ABOUT THIS WEB SITE? THIS MAY BE A HELP TO THEM. "FRIENDS HELP FRIENDS IN A TIME OF CRISIS." YOU MIGHT URGE THEM TO CALL IN FOR A FREE CONSULTATION. If your case is in the Inland Empire of Southern California please call for a free consultation at 951-247-1977. www.BlaisAtty.com

MAKING RETIREMENT PLANS EASIER TO UNDERSTAND

Section 9 This applies to retirement plans, 401(k) plans, IRA plans and other deferred compensation plans. Please keep in mind the following facts:

· Any plan interests built up before the date of marriage or after the date of separation are the separate property of the person who built those up. Usually the other spouse does not have an interest in it.

· The other spouse does have a one half interest in any amounts built up between the date of marriage and the date of separation. This is what is called Community Property and both parties have a one half interest.

· Keep in mind that with a "defined contribution" type plan like a savings plan or 401(k) the interest built up before the marriage may have gained interest and this would also be separate property. As an example: with an IRA that has $10,000 before marriage and nothing is put in after the marriage. Over the marriage the $10,000 will gain interest and after about eight years of marriage may be worth $18,000.00. This is because the interest has compounded and grown. This would all be separate property since nothing was put in after the date of marriage.

· It does not matter if the plan is vested or not.

The below illustration is in two versions. Both are the same. One or the other may be easier to understand.

Start Job	Date of Marriage	Date of Separation	Retire from Job
January -1962	February -1973	May -1985	July -1998

In the above example the employee started employment in January 1962. He married in February 1973. In May 1985 he separated from his wife. In July 1998 he retired.

Anything accumulated before February 1973 is his Separate Property since he was not married till that date. Anything accumulated after May 1985 is his Separate Property since it was accumulated after the date of separation. Anything accumulated between February 1973 and May 1985 is Community Property and both parties have a one half community interest.

The total Separate Property interest here is 24 years and 3 months (11 years and 1 month before marriage and 13 years and 2 months after date of separation). The Community Property interest is between February 1973 and May 1985. This is a total Community Property interest of 12 years and 3 months. Keep in mind that each party has a one half Community Property interest.

In the Community Property part of 12 years and 3 months each party would have a one half interest. This is 6 years and 1 ½ months each.

In the final figuring the husband has a combined Separate and Community Property interest in 30 years and 4 ½ months. Wife has a total Community Property interests of 6 years and 1 ½ months. These are the interests that go to them without the other having a portion.

If you know anyone with family law questions please mention this site to them. You might, in turn, urge them to call others that they know to see this site and for a free consultation. Just call 951-247-1977. Thank you. www.BlaisAtty.com

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MYTHS AND FACTS ABOUT PENSIONS IN DIVORCE

Section 10 Misconceptions about pensions abound. Set forth below are some of the more common misunderstandings – and corresponding facts.

1) MYTH: A future pension is too speculative for a value now.

a) FACT: All future economic events have a present value.

2) MYTH: The pension is not yet vested, then it is valueless.

a) FACT: All pensions have a present value regardless of vesting.

3) MYTH: The value of the pension is equal to the total of the employee's contributions.

a) FACT: In most cases, the pension value is far greater.

4) MYTH: The value can change every day, so what good is it?

a) FACT: The pension is valued as closely as possible to the relevant measurement date in the legal jurisdiction.

5) MYTH: Each spouse has a pension, so call it a "wash" and don’t bother to get either one valued.

a) FACT: If the spouses work for different employers and their age and pay differ, their pension values are different.

6) MYTH: Fast case settlement is desired by all concerned, and neither side has raised the pension issue, so just forget it.

a) FACT: Fairness in settlement dictates examination of pensions. It is better to get the pensions divided rather than come back to court years later.

7) MYTH: It takes too long and costs too much to have the pension valued.

a) FACT: Time and costs are relative to the difficulty of a case and the information available to the evaluator or actuary.

8) MYTH: There is no authority for judging the quality of experts

a) FACT: Ask one of the recognized actuarial professional organizations for a referral.

9) MYTH: the employee spouse could die tomorrow, obviating any pension value.

a) FACT: The present actuarial value discounts for possible mortality before and after retirement.

10) MYTH: Immediate offset of the pension value is unfair; the employee does not receive a pension until retirement.

a) FACT: Pensions have current economic values determined by actuarial mathematics. The present value of a guarantee of a future payment has the same mathematical value as any other item of property.

11) MYTH: the pension should be valued at the date the couple separates and then brought forward with interest to the date of distribution.

a) FACT: The prior value was computed with death already discounted, so if the employee spouse is still alive, adding only the accrued interest is not sufficient without an adjustment for mortality. Because the person is now living, the previously taken mortality discount must be added back.

12) MYTH: There is really no way to divide the pension now.

FACT: A QDRO (Qualified Domestic Relations Order) can be used to divide the pension interests now.

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GENERAL INFORMATION ON RETIREMENT PLANS

Section 11 Retirement plans are often the major asset in marriages. People may think that the family home is the major asset. However there is usually a large debt or mortgage on most homes. While loans can be taken out on retirement plans they are usually not for huge sums.

Usually the retirement plans want a special order on the plans. The judgment may say: "Petitioner and respondent both have a one half interest in the retirement plan." However the plans want certain specific language before they will disburse any money to the other party. Often this specific language is put into a separate order that may or may not be part of the judgment itself.

Basically there are two different types of retirement plans. A "defined contribution" plan usually has a set value at the time. These type plans may be 401(k) plans, profit sharing plans, money purchase plans and others. Often you can determine the value from the quarterly or yearly statement that is mailed out. The other type of plan is the "defined benefit" plan. Usually it would take an actuary to figure the value since no direct "cash in" usually takes place. The money is distributed when the participant reaches retirement age or is eligible to retire. The money comes on a monthly basis and not all at once.

Government agencies, such as CalPERS, CalSTRS, Federal Civil Service and the Military have their own separate order forms.

Many private employers and corporations have retirement plans. For these private plans a QDRO (Qualified Domestic Relations Order) is almost always required. QDRO orders are usually required for both defined benefit and defined contribution plans. The plans must be "qualified" under the Internal Revenue Code. There are specific requirements as to what provisions a QDRO order must have and can't have in the order.

IRA plans do not usually require QDRO orders.

When we start a case we put a "freeze" on the plan. This is a form of notice to the employer or plan administrator that they are not to distribute any of the monies or transfer any of the monies between other retirement plans of the account holder. We also usually do a joinder on the plan. Before the plan will distribute any money they will want a QDRO order signed by the judge and filed with the court. Frequently they want a certified copy.

When a "lump sum distribution" is taken from a plan there are IRS tax penalties and tax withholding taken out of the money. It may be best to "roll the money over" into your own IRA or other retirement type plan to avoid the tax penalties.

Our office does do retirement plans of most types. Please ask for further information if you have questions. Please keep in mind that this sheet is general information. There are exceptions to everything.

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BRIEF INFORMATION ON CalPERS AND CalSTRS

Section 12 This is a general review and does not go into a great deal of depth. However it does explain the basic features of the CalPERS and CalSTRS retirement plans in case of a dissolution of marriage. ON BOTH PLANS WHERE A CASH OUT IS USED THE CalPERS OR CalSTRS TAKES OUT 20% ADVANCE PAYMENTS FOR PENALTY AND TAXES FOR IRS.

This office provides retirement plan court orders for both types of CalPERS and CalSTRS retirement plans.

CalPERS RETIREMENT PLAN The Public Employee’s Retirement System (CalPERS) covers employees of the State of California who are not specifically excluded by statute. The benefits are a significant part of the employee’s compensation, and the benefits are divisible upon dissolution of marriage. Laws set forth the requirements necessary for dividing CalPERS benefits. Of importance is the fact that any retirement benefit in the particular plan that is not explicitly awarded by the judgment shall be deemed to be the exclusive property of the member spouse

There are two methods to divide CalPERS funds. One is for the nonmember to receive his or her share of the retirement benefit at such time as the member retires. There is a special order that must be made for this. This Time Rule Method requires the member to retire before nonmember can get any monthly income benefits.

There is another method. This provides the nonmember who is awarded a separate account to a refund of the accumulated contributions in the separate account of the nonmember. The nonmember is entitled to receive a refund of his or her share of accumulated contributions that have been deposited in that party’s separate account within CalPERS. Once this is done, the nonmember is deemed to have permanently waived any and all right to any further benefits from the system. There must be a special order for this.

If the employee elects to receive a retirement allowance, rather than a refund of his or her share of accumulated contributions, the plan will pay to that nonmember the percentage interest of the benefits as determined by the court in its judgment of dissolution of marriage. A CalPERS member may not make a designation of a beneficiary that is in derogation of the community property share of the nonmember spouse, unless the nonmember spouse has previously obtained an alternative order for division pursuant to the Family Law code.

CalSTRS RETIREMENT PLANS The State Teachers’ Retirement System (CalSTRS) covers all teachers employed in the public schools of the State of California, except as to those specifically excluded from membership. The laws on the State Teachers’ Retirement System (CalSTRS) prescribes the contents of court orders to divide the benefits and includes court authorization to order the establishment of separate accounts within CalSTRS for both member and nonmember spouses, including former spouses. It also specifies the rights of nonmember spouses, such as the right to a retirement allowance, or to refund of accumulated retirement contributions which must be addressed in a court order. The legislation further clarifies that a member or retiree may not designate a beneficiary in derogation of the community property share of any nonmember spouse, unless the nonmember spouse has previously obtained an alternative order for distribution under the Family Code. Under CalSTRS no judgment or court order issued pursuant to the court is binding on CalSTRS until it has been joined as a party to the action and served with a certified copy of the judgment or order.

CalSTRS provides two methods for the division of the retirement interest. The first is for the division to be made once certain conditions have been met. This Time Rule Order requires that the member retire before the nonmember can get any monthly income benefits. The other provides for separate accounts to be set up and the nonmember spouse be entitled to a refund of accumulated retirement contributions in the separate account of the nonmember. Both are similar to CalPERS.

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YOUR CHOICES WHEN YOUR SPOUSE HAS A RETIREMENT PLAN.

Section 13 You have three basic choices in reference to your spouse's retirement plan. They are:

1. Trade your interest in the retirement play of your spouse for something else of equal value. OR

2. Stay in the plan till your spouse will retire or is eligible to retire and then get your benefits at the same rate he does. OR

3. Cash out and get your interest out now.

There are some pros and cons to each of the above choices. Some of them are mentioned below:

1. TRADING IN YOUR INTEREST IN THE RETIREMENT PLAN OF YOUR SPOUSE FOR SOMETHING ELSE. THE PROS.

· You do not have to do a QDRO order which will take more time.

· You eliminate future dealings with your spouse.

· By giving up your interest in your spouse's retirement plan, you may be able to keep an asset you want like a house.

· If you keep an interest in the retirement plan you would have to pay taxes on the distributions when you receive them in the future. By taking certain other assets now in trade - such as an automobile or house or item with a high tax basis and little appreciation - you will save tax dollars.

1. TRADING IN YOUR INTEREST IN THE RETIREMENT PLAN OF YOUR SPOUSE FOR SOMETHING ELSE. THE CONS.

· By giving up your interest in your spouse's retirement plan, you may be jeopardizing your future retirement income.

· Retirement benefits are not taxed until you receive them, which may not be for many years. If you give up retirement benefits now ,and later sell other assets to fund your retirement, you will owe the income tax on the sale of those assets in the year of the sale, reducing the inevitable money that you have left.

· If the retirement plan is a defined benefit plan, it will have to be valued in order to determine what amount of other assets would be an equitable offset. This means more expenses and additional delay.

· You and your spouse may not have enough other assets to equal up the division if your spouse keeps the entire retirement plan.

2. STAY IN THE PLAN TILL YOUR SPOUSE WILL RETIRE AND THEN GET YOUR BENEFITS AT THE SAME RATE HE DOES. THE PROS.

· You will be assured off retirement income in the future.

· You will not have to value the plan today. If your spouse has a defined benefit plan, valuing to today in order to divide it today means making certain assumptions about the future - such as life expectancy, length of employment and future earnings. Those assumptions may prove to be very wrong, so staying in the plan may be the only way to ensure an economically fair division of the retirement plan.

· If your spouse is not yet vested and you are unsure whether or not vesting will occur, staying in the plan may be the only equitable method to divide the plan.

· If you stay in the plan, you will not have to make investment decisions. (The plan administrator makes them.) If you take a current distribution, you will have to decide what to do with the money.

· If the employee spouse will reach retirement age soon and you will begin drawing benefits then, staying in the plan as an alternate payee may be your simplest option because the plan includes a mechanism to make payment to you.

· If the plan is growing at an exceptional rate, you can benefit from the plan's investment expertise.

· If the plan has certain growth or cost of living increases that can't be duplicated in an IRA, such as benefits based on the highest three or five years earnings, by staying in the plan you could benefit by receiving very high payouts when your ex-spouse retires.

2. STAY IN THE PLAN TILL YOUR SPOUSE WILL RETIRE AND THEN GET YOUR BENEFITS AT THE SAME RATE HE DOES. THE CONS.

· When you begin receiving retirement benefits, a court may decide you no longer need alimony.

· The economic ties between you and your ex-spouse are not completely severed.

· You will not be able to control the investment decisions for your share of the retirement assets, as you can if you take a current distribution and roll the money into an IRA.

· If your ex-spouse takes early retirement or your ex-spouse's employer files for bankruptcy, you may lose some or all of the retirement benefits.

· Your share of the plan will not be available until your ex-spouse reaches retirement age, except in some plans if you demonstrate a hardship before that time. If your ex-spouse continues to work after becoming eligible to retire, you do not have o wait to get your share. Once your ex-spouse reaches retirement age - even if your ex-spouse continues to work - you can begin to collect benefits. This law does not allow and ex-spouse to frustrate the other's ability to receive retirement benefits once the worker reaches retirement age.

3. CASH OUT AND GET YOUR INTEREST OUT NOW. THE PROS

· If you take the distribution and roll it into an IRA, you can make your own investment decisions.

· If you need cash now - for security or living expenses - you can keep all or a portion of the distribution, although you'll have to pay current taxes on it. You will also probably have to pay a tax penalty on it.

· You may begin to tap money rolled into your IRA earlier than you would as an alternate employee in the plan. IRA rules change here. Check with your bank or IRA provider as to what the current laws are on IRA distributions.

3. CASH OUT AND GET YOUR INTEREST OUT NOW. THE CONS

· You will have to make your own investment decisions.

If you cash in the money you must pay taxes and tax penalties on the distributions.

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SOCIAL SECURITY INFORMATION FOR FAMILY ATTORNEYS, FACT SHEET

Section 14 This was obtained from the May 2001 edition of "Family Advocate". The law may have changed since then so check with the social security office phone or the web site. Both are mentioned below.

Social Security retirement and disability benefits are available to children and divorced spouses of retired or disabled workers.

· A workers child may be entitled to 50 percent of the worker's retirement or disability payments. If the worker dies the child may be entitled to 75 percent of the worker's insurance amount. The Social Security Act provides an expansive definition of "child," which includes the worker's natural child, adjudicated child, stepchild, adopted child, grandchild, step grandchild, legally adopted grandchild, legally adopted step grandchild and equitably adopted child.

· A worker's divorced spouse may be entitled to 50 percent of the worker's retirement or disability payments. If the worker dies, the divorced window(er) may be entitled to 100 percent of the worker's insurance paid at age 62. A divorced widow(er) may receive 75 percent of the worker's benefit if he or she has a child under age 16 in his or her care.

· The total amount paid to a worker's spouse and children is subject to the maximum family limit. However, benefits paid to a worker's divorced spouse are not limited by the maximum family benefit, nor do those benefits reduce the worker's spouse's or children's benefits. There is no limit to the number of spouses and divorced spouses potentially eligible for benefits from the worker's earnings.

· For the divorced spouse to receive retirement or disability benefits a worker and divorced spouse must have been married for at least ten years. If the marriage has lasted nearly ten years, efforts should be made to reach that milestone. These are called derivative benefits.

· A divorced spouse will not receive benefits on his or her prior spouse's earnings record if he or she is remarried. A divorced spouse may be entitled to benefits from a former spouse's earnings record if a subsequent marriage is terminated.

· A divorced spouse may receive benefits on the worker's earnings record even if the worker is not receiving benefits as long as the divorced spouse otherwise qualifies and the two have been divorced for at least two years.

· For 2001, the maximum monthly benefit payable to a retired or disabled worker at age 65 is $1,536 per month. For 2001, a retired worker under age 65 can earn up to $10,680 per year before his or her benefits are reduced. Benefits are then reduced $1 for every $2 earned over $10,680. A reduction of benefits due to excess earnings also will reduce the spouse's and children's benefits, but not a divorced spouse's benefits. A retired worker age 65 or older can earn any amount without a reduction in benefits.

· A workers' benefits are available to determine and pay child support and alimony. A worker's benefits may be garnished to pay child support, alimony and support arrears.

· The Social Security Administration now sends yearly earning and benefits statements to all workers. This is a useful tool in estimating benefits and documenting a party's earnings history. If errors appear on the statements corrections must be made within certain time frames.

· Starting with workers born in 1938, the normal retirement age is gradually increasing. For workers born in 1960 or later, the normal retirement age will increase to age 67.

The comments above are general statements, case facts may alter the final result. Encourage your client to visit or contact the Social Security Administration for specific information. Call Social Security at 1-800-772-1213 or go to the website at www.ssa.gov

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IF YOU KNOW OF ANYONE WITH FAMILY LAW QUESTIONS, WHY DON'T YOU TELL THEM ABOUT THIS WEB SITE? THIS MAY BE A HELP TO THEM. "FRIENDS HELP FRIENDS IN A TIME OF CRISIS." YOU MIGHT URGE THEM TO CALL IN FOR A FREE CONSULTATION. www.BlaisAtty.com

DAVID F. BLAISDELL, Attorney at Law, 23020 Atlantic CircleMoreno Valley, CA 92553
Phone: 951-247-1977

INFORMATION AN ACTUARY WILL NEED IN THE VALUATION OF THE COMMUNITY INTEREST IN A RETIREMENT PLAN

Section 15 An inexpensive actuary is Milerd Actuarial Services. He is probably the most reasonably priced.

What Millerd wants as of 8-28-07 – Milerd Actuarial Services, Inc. 9300 Warbler Avenue, Fountain Valley, CA 92708. phone: 714-834-1149. fax 714-964-7350 – you can call for the latest requirements and they fax the information back. All valuations are done using the time rule.

INFORMATION NEEDED – for pension evaluation	ANSWER OR CHECK OFF
1) Employee name
2) Employed by – Use other side sheet if not enough room.
3) Date of Birth of employee
4) Date of Marriage
5) Date of employee hire
6) Date of Separation of marriage
7) Pension plan booklet (SPD). They have most of the major booklets
8) Letter from employer or union stating what the accrued pension benefit is up to the current date, not the Date of Separation
9) Exceptions to the above – for most plans the letter from the employer or union will suffice but on the employers listed below, we require the listed statement and salary (paystub) information · Federal Civil Service – include employee contributions · County and city – include contribution statement · State teachers retirement system (CalSTRS) – also statement of account (showing latest year and total contributions and service credit) · Public Employees Retirement system (CalPERS) – Include latest Annual Members Statement. · If employee is a safety employee they need to know which plan he/she is covered by: Circle one A. Half Pay @ 55 B. 2% @ 55 C. 2 ½ % @ 55 D. 2% @ 50
10) Check for $100 (10 to 14 day turn around time). $125 for rush and $150 for fax rush. Include copy of check with fax)
11) Salary information for current year (excluding overtime pay, including deferred compensation)

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DAVID F. BLAISDELL - Attorney at Law - 23020 Atlantic Circle, Moreno Valley, CA 92553
Phone: (951) 247-1977

WHEN THE PLAN HAS LOST THE PENSION RECORDS. FINDING LOST OR DESTROYED PENSION RECORDS THAT THE PLAN DOES NOT HAVE ANYMORE

Section 16 Sometimes the company itself looses it's pension plan records. It could be a fire, flood, or more often than not there is a new plan that takes over and the old records are lost. The employer company could have been sold, moved out of state, went bankrupt or any number of things. Below are some suggestions on finding records.

· Contact the Social Security Administration to get copies of your earnings records. These will usually include your former employer's federal ID number. You may be able to use that number to locate the company and apply for the benefit. There is a toll free information number for social security. It is 1-800-772-1213. They provide many booklets that answer questions people may have.

a) The actual form you want is called: Request for Earnings and Benefit Estimate Statement. It is Form SSA-7004-SM-OP1

This is what you do:

1) Call social security at 1-800-772-1213. WHAT FOLLOWS IS THE PROCEDURE IN THE PAST. IT MAY HAVE CHANGED.

2) There will be a recorded phone voice. You want the "personal earnings and benefits estimate statement" Push the appropriate button on the phone.

3) There will be a request for your: Social Security Account Number, state you live in, name, street address, name of city and state, five digit zip code and phone number with area code.

4) Once you state the above information over the phone in the social security office will send the proper form for getting your personal earnings and benefits estimate statement.

a) You can also write the social security office at: P.O. Box 17762, Baltimore, MD 21235-0001. However it is easier just to call.

5) Once you have the Social Security records contact your pension plan and use the Social Security records as evidence as to what your earnings were. The Pension plan may be able to figure the interests you have based on Social Security earnings.

OTHER INFORMATION ON LOST PENSIONS:

· The Pension Benefit Guaranty Corporation, which insures most private sector plans, helps employees search for lost pensions. Use the website at www.pbgc.gov/search/default.htm. You can also order the booklet on the subject at: www.pbgc.gov/publications/lostpendl.htm

· The United States Labor Department provides limited assistance to workers searching for lost pensions through the Employee Benefits Security Administration's Division of Technical Assistance and Inquiries. They are located in Washington and have 15 field offices. For information, go to www.dol.gov/ebsa/aboutebsa/main.html#section2

· The nonprofit Pension Rights Center in Washington also offers assistance. Go to www.pensionrights.org/index.html

· The government has set up 11 counseling projects to help people resolve pension problems. Go to www.pensionrights.org/help where it will help you to find the project near you. This site has other information on pension plans. California is not specifically covered but it is still a help and a great place to start.

· You can also call the U.S. Department of Labor's Employee Benefits Security Administration at 1-866-444-3272 and seek help.

1) Here the retirement involved is a Defined Contribution Plan. Usually we just put that the Alternate Payee has a fifty percent interest of all accumulations and losses from Date of Marriage to Date of Separation. However sometimes the retirement plan's computers do not compute this. The plan may have changed and they don’t know how much was in the plan on the Date of Marriage. Below are ways to compute this interest.

2) I am assuming that there are no loans on the plan. Please try to follow this example:

a) The plan was started 1980

b) The parties were married 1985

c) The parties separated 2005

d) There is a total of 25 years of plan participation. Only 20 years of this was during the after the Date of Marriage and up to the Date of Separation.

e) 20 years is 80% of the total of 25 years. You can use a pocket calculator to figure this. 20 ÷ 25 % = 80 (usually this would be figured based on months)

f) Whatever is in the account on the Date of Separation 80% would be Community Property that the Alternate Payee is entitled to half of.

3) There is another variation on this when you don’t know what the account balance was on the Date of Separation:

a) The plan was started 1980

b) The parties were married 1985

c) The parties separated 2000

d) It is now 2005

e) Once again there are 25 years of total plan participation. They were married and living together for 15 of those years. It is basically the same formula as above:

f) 15 years 60% of the total of 25 years. You can use the pocket calculator to figure this. 15 ÷ 25% = 60. It would be that 60% of the account balance would be Community Property.

4) This is, of course, just a suggestion. It might be easier for you to use this. It indicates how the percentage is arrived at in the QDRO.

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METHODS TO VALUE A DEFINED CONTRIBUTION PENSION PLAN – This also may a help when pension records are lost.

The below was obtained from an article in The American Journal of Family Law for Summer 2001. The author is Marvin Snyder who wrote the book "Value of Pensions in Divorce". The article expresses opinions of the author.

There are basically three methods of valuing defined contribution pension plans. A defined contribution pension plan usually has a set value in the account. Examples are ESOP, 401(k), savings plans and others.

BASIC DATA AND INFORMATION AS AN EXAMPLE

· This date for the figuring is 2-15-01

· HUSBAND: Mr. Blank

a) Date of Birth 12-31-50

b) Current age: 50

· WIFE: Mrs. Blank

a) Date of Birth 10-30-55

b) Current age 45

· DETAILS:

a) Date of Marriage 10-18-80

b) Date of Separation 1-15-01

c) Husband's plan 401(k)

d) Date of plan entry June 1, 1976 (date contributions first made to plan)

e) Account balance of plan at Date of Marriage is $5,663

f) Account balance of plan at Date of Separation is $127,920 (based on latest account value statement of 9-30-00)

g) Plan type: Individual account Defined Contribution Plan

· DISCUSSION:

a) Retirement funds are unlike any other kind of property, and the evaluation and allocation of benefits and accounts needs recognition of the special nature. There are three methods of the determination and allocation of Community Property and Separate Property in the case of a Defined Contribution Plan in a marital dissolution. They are:

i) The tracing method

ii) The coverture fraction method

iii) The subtraction method

THE TRACING METHOD:

The tracing method is usually the most difficult to use and is the least used in these matters. Its difficulties arise from both the concept and the necessary details to perform a full tracing. The details require minute records of every transaction in the accounts. Then decisions would be required on how to ascribe various net investment gains and losses to particular investments over the time periods before and during the marriage.

In concept, the criticism of the tracing method is that it gives undue weight to the premarital contributions or to the account balances on the date of the marriage. Based on the above account balances it means that the starting point of $5,663 is only 4.5% of the ending amount of $128,000. However the growth would have to be figured by some basis. Perhaps the retirement plan can give its growth over the years, consumer price index, stock market averages over time or others could give the compound growth of the original $5,663. This would be rather involved and there may be problems admitting the information into evidence.

The article did not spell out how this tracing method was done. I just suggest against it because it is overly complicated with all the tracing involved.

THE COVERTURE FRACTION METHOD:

Although the coverture fraction method may generally be the proper rule for apportioning the value of a Defined Benefit Plan, it is not always appropriate for allocating the value of individual account benefits. In the case of Hester v. Hester, 856 P.2d 1048 (Or. Ct. App. 1993), the court explained that when the value of a particular plan is determined by the amount of contributions, application of the coverture fraction method could result in a division of property that is inequitable.

For example, when an employee's account in such a plan before the marriage was relatively small and contributions and earnings during the marriage were much larger, the application of the coverture fraction would effectively average the contributions over time, thereby distorting the value of the plan attributable to time periods both before and during the marriage. As a result, the employee would be awarded larger percentage of the benefits than his actual premarital service would justify. This also occurs in the tracing method.

For illustration, the coverture fraction results in this case are shown below:

a) The numerator from date of marriage of 10-18-80 through September 30, 2000, (most recently available account value date) is 19 years, 11 and one half months, rounded to 20 years.

b) The denominator from assumed date of plan entry of June 1, 1976, through September 30, 2000, is 24 years and 4 months, or 24.3 years.

c) The marital coverture fraction, therefore, is 20.0 divided by 24.3% which is 82% (Use pocket calculator and 20 ÷ 24.3 % is 82.30% (round off to 82%).

d) This method indicates that 82 percent of the current total account value would be Community Property which equals $104,894. (127,920 X 82% which equals 104,894). If fifty percent is awarded to wife it would be $52,447

This may not be the perfect method, but is less unfair than the tracing method and easier to figure.

THERE IS ANOTHER WAY TO FIGURE THIS: The numerator from Date of Marriage to Date of Separation is 10 years rounded off. The denominator which is date from entry into the plan (1985) to Date of Separation is 16 years. THIS USES DIFFERENT FACTS FOR COMPUTATION FROM THE ABOVE.

The marital fraction therefore is 10 ÷ 16 which is 62.5%. That is to say that from when the plan was started in 1985 to the date of separation in 1991 was 16 years. The Marriage of living together was ten of those years (from 1991 to 2001). The marriage of living together was 62.5% of the time. Therefore 62.5% of the total should be Community Property and the balance Separate Property of holder of plan.

62.5% of the total of 210,038 is 131,273.75 as Community Property interest. The balance of $78,764.25 is the Separate Property of plan holder. Plan holder would also get one half the Community Property interest. Plan holder would end up with 78,764.75 plus 65,636.87 which is his one half of the Community Property portion for a total of $144,401.62 for Plan Holder.

Wife of plan holder would receive her Community Property share of 65,636.87.

Notice that this figuring is just about the same as the above.

THE SUBTRACTION METHOD:

In the case of Maslen v. Maslen, 822 P.2d 982 (Idaho 1991), the court determined the community interest in the husband's defined contribution plan by subtracting the account balance at the time of the marriage from the account balance at the time of the divorce. This is a relatively straightforward way to determine the marital or Community Property interest in a Defined Contribution Plan, where the contribution and investment gains in the plan began before the marriage, and continued during the marriage (and after). The trial court calculated the value of the Community Property interest in the plan by subtracting the husband's account balance as of the date of the marriage from the value of the account as of the date of the divorce. The difference between the two amounts was the portion of the retirement benefits accrued during marriage, had therefore was Community Property, the trial court ruled.

The Idaho Supreme Court held that the trial court did not err when it determined the community portion of the plan. It said that trial courts have broad discretion In the division of marital property and that the trial court properly exercises that discretion here in using subtraction method.

For illustration and discussion, the subtraction method results in this case are shown below:

a) The account balance at date of marriage is $5,663.

b) The account balance at 9-30-01 (Date of Separation or valuation) is $127,920

c) Community Property balance: is (b) – (a) which is $122,257

d) Fifty percent to wife: One half of (c) is $61,129

A 50 percent award to wife under each of the methods is listed below:

METHOD	COMMUNITY PROPERTY	WIFE'S AWARD	COMMENT
Tracing method	Depends how figured	Depends how figured	Not recommended
Coverture Fraction	$104,894	$52,447	Best overall
Subtraction method	$122,258	$61,129	Recommended

OTHER NOTES:

1) Another option that can be used in the above on Defined Contribution Plan or for late QDRO's is:

a) Establish the value of the account balance at the Date of Separation

b) Agree on a reasonable interest rate

c) Bring item A above forward with interest to the present

d) Divide the result in half for the share awarded to the former spouse.

e) Can also do the above half in the past for when separated long ago.

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FREE QDRO ORDERS ON LINE

Section 17 Some retirement plans, rather than hiring their own in house experts on QDRO orders, are outsourcing the expertise to others. Fidelity has an excellent site for some plans. If your retirement plan is covered Fidelity will "take you by the hand" in making your own order. They provide plans for Miller Brewing, Verizon Wireless, General Motors and about 390 others. You might see if yours is covered. Just by going thru the process you will learn a lot. Their web site is: https://qdro.fidelity.com/ We suggest you at least check it out. You must have patience in doing this but you are probably saving over $900 in attorney fees.
At the Fidelity QDRO Center you must create a name and PIN number. After you do your proposed QDRO you can encourage the other side to go directly to the site and do their own QDRO order. This way they will see what the options are. This is to show that you are not hiding anything.

If you know anyone with family law questions please mention this site to them. Thank you. www.BlaisAtty.com If your case is in the Inland Empire of Southern California please call for a free consultation at 951-247-19

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FREQUENTLY ASKED QUESTIONS ABOUT RETIREMENT PLANS

Section 18 7-5-07 This is from the Snyder book. Keep in mind this applies to QDRO orders and not government retirement plans that are not covered by ERISA.

FREQUENTLY ASKED QUESTIONS BY EMPLOYEE SPOUSE: - the spouse referred to in the plan will by husband. These are for private retirement plans and not governmental plans.

1) I worked hard all of my life, and I earned this pension, My former wife got half of my salary every payday while we were married. Why should she get part or my pension that I worked for?

a) By state law your pension is Community Property for the portion built up from Date of Marriage to Date of Separation. Your former spouse is entitled to half the Community Property interest unless there is an agreement otherwise

2) I have money in a 401(k) plan of my employer. Why should my former wife get part of that?

a) This is just another form of "pension plan." However, the payout does not have to be deferred until retirement. It is Community Property similar to any other form of pension benefit.

3) Is it the case that my former wife can get money out of my 401(k) plan now, but I can't touch my remaining portion while I am still employed?

a) Yes, however your may be able to borrow from your account, if your plan allows loans. Or you may be able to apply for a hardship withdrawal, if permitted by your plan.

4) Can it take money out of my account to pay Spousal Support or Child Support?

a) Not directly. A QDRO for Child Support or Spousal Support can facilitate such payments.

5) My account will be charged an administrative fee by the plan to make a payment from my account to my former wife. Is that fair?

a) The plan is allowed to charge a reasonable administrative processing fee. It may be imposed on your account in such a way that you each pay part of it, or depending on the plan, it may be charged only against the wife.

FREQUENTLY ASKED QUESTIONS BY NON-EMPLOYEE SPOUSE: The wife is the spouse of the plan Participant husband. These are for private retirement plans and not governmental plans.

1) The judge said in open court that I receive part of my former husband's pension, and its written in the dissolution judgment. So why do I need a separate QDRO order?

a) Federal law concerning pensions requires a special court order – a Qualified Domestic Relations Order or QDRO – before a plan may make payment to anyone other than the plan Participant.

2) Is there a time limit to file a QDRO?

a) Not really. However, there are practical considerations. First, both you and your former spouse should be alive. Second, the order should be prepared while the details are fresh and current. It is best to do the plan before husband retires.

3) Are there any problems if I wait some time (perhaps years) before a QDRO is prepared?

a) There may be problems. If you former husband dies in the meantime, it is quite likely you would never receive any benefits. If either of you moves to different addresses, the plan must be kept informed. Also it is possible that your former spouse will retire or otherwise remove funds from the plan before the order is served, leaving you with nothing or very little. Over the years, the plan could change or be amended, or even terminate, any of which would make the preparation of a QDRO more complicated and difficult.

4) How long does the plan have to respond to a QDRO once it has been filed?

a) There are two answers. If your former spouse is retired or is about to retire or otherwise about to apply for benefits, the plan has a maximum of 18 months to review and respond to a QDRO. Otherwise, the plan has to respond within a "reasonable time," which is undefined.

5) What if my former spouse and I remarry one another?

a) If the marriage occurs before benefits have begun or have been paid, a new court order should be prepared to cancel the QDRO. However, if the remarriage occurs after the pension has started or a cash out has been paid, it is possible to leave the structure of the QDRO intact.

6) In a pension plan after retirement, will my monthly pension under the QDRO be paid to me for as long as were married. For example 18 years?

a) Not usually. The pension will be paid to you as long as you are both alive. Or the QDRO could be set up for you to receive the pension as long as you live, irrespective of your former spouse's life or death.

7) How soon can I collect my share of monthly pension benefits?

a) If your former spouse is already retired and receiving a pension, you will begin to receive your share of the monthly pension benefits as soon as the plan processes the order. If your former spouse has not yet retired, you will begin to receive your share of the monthly pension benefit when he retires. In some plans, your receipt of your share of the benefits may begin when your former spouse is eligible for early retirement, whether he does or does not retire early.

8) Can a QDRO enable me to get cash from the plan in a lump sum?

a) Yes, if the plan is an individual account defined contribution plan, such as a 401(k) savings or profit sharing plan. No if the plan is a Defined Benefit Plan pension plan. However, if the benefit value in a Defined Benefit Plan pension plan is very small the plan may cash you out (The limit is usually a lump sum value of $5,000 or less.)

9) Can I leave my portion of QDRO benefits to someone in my will?

a) No. Plan benefits are not disposable by an individual's will.

10) In a Defined Benefit Plan pension plan under a QDRO, why do I have to wait until my former spouse retires before I can receive benefit payments?

a) Defined Benefit Plan pension plans do not permit payouts until the member has reached at least the eligibility for early retirement (unless, as mentioned previously, the value of the Defined Benefit Plan is very small).

11) My former husband is already retired and received a monthly pension. Do I get any kind of compensation for benefit payments between the time of the divorce and the time my QDRO benefits start?

a) Not normally. In most cases the plan will only commence payments to you when, and after the QDRO has been approved and accepted. In some special if may be possible to structure the QDRO to arrange for your to receive "catch up" payments, however this is rare.

12) If I ask for an receive a lump sum distribution from my former husband's 401(k) plan under the QDRO, would I have to pay heavy taxes and penalties?

a) Distributions by QDRO are taxable as personal ordinary income. However there is no penalty. Without a QDRO, a payment to a person under age 591/2 incurs a ten percent penalty. If you have your distribution transferred to an IRA there is neither tax nor penalty. If you accept a full lump sum payment, the plan is required to withhold twenty percent of the amount. A record of the amount withheld is sent to IRS by the plan in your name and with your Social Security number as a pre-payment of your tax.

13) In determining the value of a pension, how does the actuary know how long the person will live?

a) Since nobody can know how long a person will live, the actuary uses mortality tables reflecting life expectancy.

14) In determine the value of a pension, how does the actuary know what future interest rates will be?

a) Nobody can know what future interest rates will be, the actuary uses the current prevailing average yield (usually on long term bonds).

15) An analysis shows that my former husband's pension is worth a lot of money. How do I get my share?

a) Your get your share by trading other Community Property (such as you get the house and he gets the pension), and/or by using a QDRO.

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WHY WE WANT A QDRO WHEN DOING THE CASE NOW AND NOT LATER

Section 19 and 36 Generally we feel it best to do the QDRO at the same time as the dissolution of marriage. By not doing the QDRO As Soon As Possible the party most likely to suffer is the non-participant who does not have the retirement plan in his or her name. Below are some, but not all, of the problems that can arise from reserving and doing the QDRO later.

THE NON-PARTICIPANT SPOUSE COULD:

· Lose all of his or her pension rights if the participant dies

· Lose rights to a pre-retirement survivor annuity

· Lose rights to post-retirement survivor annuity

· Lose rights to separate-interest lifetime pension, if participant retires

· Lose rights to post-retirement Cost Of Living Adjustment enhancements

· Lose rights to coveture base pensions

· Lose rights to early retirement subsidy

· Miss months or years of pension payments if participant retires unbeknownst to non-participant spouse

· Lose investment gains on 401(k)

· Lose entire 401(k) assignment if participant quits and takes distribution

· Lose entire 401(k) assignment if participant dies

· Lose rights to name beneficiary upon own death

· Lose right to direct own plan investment under a 401(k)

· Other factors are:

a) We will have to do the QDRO sooner or later. Better sooner than later. Sometimes it will never be done.

b) It is cheaper to do the QDRO now. The attorney has the parties before the court and orders can be made. If we wait we may have to serve the other party again and have a new attorney who is not familiar with the file and case.

c) Participant may marry again and new wife will be the beneficiary of rights and the former wife cut out.

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COMPARISON OF CalSTRS RETIREMENT DIVISION

Section 20 The below is from 11-3-05 and the latest book on CalSTRS benefits on that date. The below is a general overview of each method of division on a comparison basis.

The Cash Balance Benefit Program is for part time educators. Usually members contribute 4 percent of their salary and employers also contribute 4 percent to CalSTRS.

The Defined Benefit Supplement Account may provide additional funds to Defined Benefit members when they retire. Usually contributions come from the member and employer both.

	Segregation Method	Time Rule Formula
Availability	Only available if the member has not yet retired or begun to receive a benefit of any kind.	Available if the member is active or retired.
Award Calculation	The amount awarded to the nonmember spouse is typically 50 percent of the member's service credit years, contributions and interest earned from Date of Marriage to Date of Separation. The nonmember spouse can then apply for a lump-sum distribution at any time, or at age 55 or older receive a lifetime monthly benefit. The nonmember spouse's monthly benefit is calculated using the member's salary on the Date of Separation, the nonmember's spouse's age at the time of retirement and the service credit awarded to the nonmember spouse.	CalSTRS calculates the service credit earned by the member from the Date of Marriage to the Date of Separation and determines what ratio of the member's monthly benefit is Community Property and what percentage of the member's benefit is payable to the nonmember spouse each moth. The nonmember spouse's benefit is calculated using the member's salary at the time of retirement.
Restrictions	A member's Defined Benefit Supplement account or Cash Balance Benefit account can only be divided using the segregation formula. This is because only contributions and interest are earned but not service credit.	None.
Availability of nonmember spouse's share of member's account	Immediately available – nonmember spouse receives a separate account or monthly benefit payable when the nonmember spouse is age 55.	Not available until member retires – nonmember spouse does not receive a separate account.
Impact of service credit and contributions	Service credit is removed from the member's account .	Service credit is not removed from the member's account

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TYPES OF RETIREMENT PLANS

Section 21

The below information is for year 2002. There may be changes in later years.

EMPLOYER SPONSORED DEFINED CONTRIBUTION PLANS. In these plans the employee and often the employer contribute money into the employee's account, which grows over time. Usually there is an account balance with a specific amount of money.
TYPE PLAN	COMMENTS	TYPE ORDER NEEDED TO DIVIDE PLAN
Salary Savings 401(k)	Employee contribute a portion of salary on a pre-tax basis, which may be matched in full or in part by the employer. The employee may defer up to $11,000, effective January 1, 2002	QDRO
Thrift Plan	Employee contributes a portion of salary on an after tax basis, which may be matched in full or in part by the employer. Because the employee's contribution is made on an after tax basis, distributions (payouts) may be partially tax free.	QDRO
Profit Sharing Plan	Employer contributes to the employee's account only if company is profitable. Amount of contribution is based on either a fixed or a discretionary formula	QDRO
Money Purchase Plan	Employer contributes a fixed percentage of salary to employee's account every year. Employer contribution is mandatory, regardless of whether company makes a profit.	QDRO
Employee Stock Ownership Plan (ESOP)	Contributions are a percentage of salary and are used to purchase company stock. The stock is held in trust for the employee, who receives his or her accumulated interest in the plan at termination of employment in the form of stock or cash. The plan provisions define the rights of the employee to exercise any stock options.	QDRO
Tax sheltered Annuities (TSA)	TSA plans are retirement vehicle allowing teachers, government workers and employees of nonprofit organizations to contribute a portion of salary into the annuity.	QDRO like order

EMPLOYER SPONSORED IRA PLANS. These are a form of defined contribution plan like the above table. They have separate rules.
TYPE PLAN	COMMENTS	TYPE ORDER NEEDED TO DIVIDE PLAN
Simplified Employee Pension IRA (SEP-IRA)	SEP-IRAs are retirement plans in the form of individual retirement accounts. The same early withdrawal penalties apply here as apply to traditional IRA's or Roth IRA's. The maximum contribution is 15% of the employee's compensation.	A regular court order or judgment divides these plans.
Salary Reduction – Simplified Employee Pension IRA (SAR-SEP)	These retirement plans were available prior to 1997 and included a salary reduction agreement in which the employee could elect to have a portion of salary contributed to a SEP-IRA on a pre-tax basis.	A regular court order or judgment divided these plans.
Simple IRA (Simplified Incentive Match Plans for Employees)	Some small employers, including self employed individuals, set up Simple IRA's for the benefit of their employees. The Simple IRA involves a written salary reduction agreement between the employee and employer that allows the employee-participant to reduce compensation and have the employer contribute that amount to a Simple IRA on the employee's behalf. (employees may elect not to contribute.) The employer makes matching contributions or non-elective contributions. Non-elective contributions are made for each eligible employee, even if the employee does not elect to contribute. The total employee contribution (from salary reduction) allowed for the year 2002 is $7,000 (workers over age 50 are allowed to contribute another $500). Non-elective contributions are limited to 2% of compensation. The matching contribution is the lesser of the employee contribution nor 3% of the employee's annual salary. The distribution rules applicable to a traditional IRA also apply to a Simple IRA, except that if the employee withdraws money prematurely within two years after he or she began participating, the 10% penalty is increased to 25%. In addition, during the first two years of plan participation, a rollover (transfer of funds) can be made only to another Simple IRA plan. A Simple IRA cannot be designated as a Roth IRA.	Regular court order or judgment divides these plans.

DEFINED BENEFIT PLANS. These are often known as pension plans. They do not have an account balance. The money is usually paid out on a monthly basis when the member retires.
TYPE PLAN	COMMENTS	TYPE ORDER NEEDED TO DIVIDE PLAN
Business and Corporate Pensions	Business or corporations offer these defined benefit plans. The maximum annual benefit beginning 1-1-02 is $160,000	QDRO

GOVERNMENT SPONSORED RETIREMENT PLANS. These are not subject to ERISA since they are government agencies. Still many of the provisions are the same.
TYPE PLAN	COMMENTS	TYPE ORDER NEEDED TO DIVIDE PLAN
Government or military pension	These defined benefit plans are offered to civil service workers, government employees and military personnel. These include CalSTRS, CalPERS, FERS, CSRS and others	Specific governmental regulations and procedures apply for implementation of a court order to divide these plan benefits between spouses.

PERSONAL RETIREMENT PLANS AND PERSONAL ANNUITIES.
TYPE PLAN	COMMENTS	TYPE ORDER NEEDED TO DIVIDE PLAN
Deferred Annuity	A deferred annuity is an annuity contract in which an insurance company promises to make payments at some future date. Taxes on appreciation are deferred until the money is withdrawn.	A regular court order or judgment divides these plans. Most insurance companies have forms that permit the transfer of ownership.
Traditional IRA	Individuals may accumulate up to $3,000 per year (workers over age 50 are allowed to contribute another $500 per year). Withdrawals before age 59 ½ are subject to a 10% penalty. The early withdrawal penalty does not apply to a withdrawal necessitated by disability of if the withdrawal is for certain medical insurance premiums, educational expenses or first time home buyer expenses up to a maximum of $10,000. The account value is untaxed until funds are withdrawn.	A regular court order or judgment divides IRA accounts
Roth IRA	Individuals may contribute up to $3,000 per year (workers over age 50 are allowed to contribute another $500 per year). Contributions are not deductible when you make them, but qualified distributions on the contributions and earnings are tax free when withdrawn. In general, you can take tax free withdrawals if, after holding the account for five years, you meet certain conditions. You must be at least 59 1/2 , disabled or using the money (up to $10,000) toward the purchase of your first home, or you must be the beneficiary of the account. If you do not meet any of these conditions, an early withdrawal penalty will apply.	A regular court order or judgment divides IRA orders.

MISCELLANEOUS RETIREMENT BENEFITS.
TYPE PLAN	COMMENTS	TYPE ORDER NEEDED TO DIVIDE PLAN
Nonqualified Deferred Compensation Plan	A small percentage of executives and key upper level employees have deferred compensation plans. Generally, such a plan provides that a portion of the employee's compensation is deferred until the future. Agreements to participate in the plans are made directly between the employer and the employee, which makes requesting documentation from the employer important.	Often the plans do not permit the asset and/or income to be divided, making them legally complicated. In such a case, the court might order the employee spouse to pay the non-employee spouse when he or she receives the benefit. Because employee spouse pays taxes when he or she receives the benefit, the order should include a provision that the employee spouse will deduct the non-employee spouse's share of taxes on the benefit.
Social Security	If you are divorced, you can receive benefits based on your former spouse's earnings if the marriage lasted at least ten years, you are unmarried and the benefit based on your own earnings is not grater than 50% of your former spouse's benefit. You can begin receiving benefits at age 62 if your former spouse is receiving benefits. If your former spouse is at least age 62 and not receiving benefits but can qualify for them, you can still receive benefits if you have been divorced for at least two years and meet the other requirements. To apply for benefits on your former spouse's record, you will need either the spouse's Social Security number or the spouse's date and place of birth and parents' names. Your benefits as an ex-spouse do not reduce or otherwise affect benefits available to your former spouse or your current spouse, if you are remarried. You can find out about Social Security benefits by calling 800-772-1213 or visiting Social Security online at www.ssa.gov.	Social Security benefits are not considered Community Property and are not divisible at divorce.

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REQUEST FOR INFORMATION AND JOINDER DOCUMENTS ENCLOSED

Section 22 DATED: ___________ Note that in this letter we do not come on strong with the retirement plan. Stress that you want to work with them.

Re: We represent the spouse in a family law action. Name of your employee or account holder -------------- and Social Security number is on the pleadings enclosed.

Dear Sirs:

1) Enclosed are joinder documents in this case. Please sign the acknowledgment of receipt and send back in the self addresses and stamped envelope.

2) I want to stress in this letter that I, as an attorney, want to work with you. I think we can both help each other and the parties to get an acceptable QDRO in the minimum amount of time. Some of the below may apply to Defined Benefit Plan and not Defined Contribution Plan type plans, or vice versa. If so just state that it does not apply because it is a Defined Benefit Plan or Defined Contribution Plan etc. Our office is looking forward to working with you. We should not be in an adversarial relationship since we are both working towards the same goal. That is getting an acceptable QDRO done. Thanks.

3) We request the following information on the Member:

a) Please give the names of all other employer or your plan sponsored or union sponsored retirement programs under which the Member participates. Please answer separately for each including your plan.

b) Please give the employment status of the Member: hourly, salaried, active, laid off, retired, etc.

c) Is the Member currently receiving benefits? If not, there earliest date the Member may receive benefits under the plan or plans. What is Member's normal retirement age under the plan.

d) The three most recent annual benefits statements.

e) PLEASE SEND ANY MODEL QDRO ORDERS YOU HAVE.

f) Please send copies of any waivers and spousal consents that are on file with you as to Qualified Joint Survivor Annuities (QJSA) or Qualified Pre-retirement Survivor Annuities (QPSA). If there are any QJSA or QPSA's please send any information on these and if the Member has either a QJSA or QPSA. Also send information if it is possible to award the Nonmember Spouse with a one half interest in a QJSA or QPSA, so the Member can have the other half for a new spouse or beneficiary.

g) We realize that your agency may not use phrases like QPSA or QJSA. We suspect you have the same type program with a different name. Basically a QJSA is when the retired Member dies, the surviving spouse receives money for the rest of the life of the surviving spouse. A QPSA is when the Member dies before he or she retires. Then the surviving spouse receives money for the rest of the life of the surviving spouse. Who does the Member have now listed as a beneficiary on any QPSA, QJSA, death benefit or any other benefit?

h) Have there been any loans taken out on any of the deferred compensation plans? If so, how much, when, by who, etc.

i) Have any withdrawals or other cash distributions been taken under the plan? If so, how much, when, by who, etc.

j) Please send all information as to various options and other benefits. We do want to know which retirement option the Member has at this time. Whatever option the Member has please explain, in simple terms, what it means.

k) If there are any booklets or pamphlets which you distribute to Members informally explaining your benefit plans an various types and forms of benefits available and any election options, we would appreciate it if you would send us copies of that material as well. If you have model forms for retirement plans please send them also.

· Thank you for your anticipated cooperation. If there are any questions or problems please call or write. Thanks again!

This is also a "freeze notice" as per Family Code section 755 (b). This is notice that the spouse or former spouse of the employee or account holder claims to be entitled to the payment or refund or some part thereof of any interest held by you for the employee or account holder. You should be aware that California Family Code section 755 and Family Code section 80 give a very broad definition to what is included in employee retirement, death, benefit or savings plan (It includes, but is not limited to, stock option, bonus, vacation pay, profit sharing and similar plans of deferred or fringe benefit compensation. It does not matter if it is qualified under ERISA or not). If you are even thinking about letting the employee change beneficiary designation, withdraw, borrow against or transfer funds please fax this to your attorney first. Do not do the following with the employee or account holder:

a) Pay any monies to the above or transfer any monies without court order, and/or

b) Transfer monies or property from one deferred compensation account to another, and/or

c) Change beneficiary designation on any interest, and/or

d) Borrow against any interest

Yours, sign your name

NOTICE TO PLAN RECEIVING JOINDER DOCUMENTS

Section 23

DATED: _________

TO WHOM IT MAY CONCERN:

1) These are suggestions to help with the blank form "Notice of Appearance." This is a California form that may be difficult to understand. In making these suggestions we are not trying to be condescending. We are just explaining the form. If you have attorneys representing your plan please forward the forms to them. The following are suggestions to the attorneys or parties completing this form:

a) Please do complete it and mail back. The original should be mailed directly to the court and a copy to us. There is no filing fee for this.

b) You can get the name of the court, address, case number, etc. and other data directly from the joinder forms.

c) Please put the name of the law firm or employee benefit plan in the upper left corner. Do not put our name and address in the upper left corner.

(1) In paragraph 1 please put the full name of the benefit plan. The joinder documents may have the name wrong. Please put the correct full name.

(2) In paragraph 2:

(a) In subparagraph a. put the name, address, etc. of your attorney

(b) If you don’t have an attorney use subparagraph b. to put your name, title, address and phone number.

(3) In paragraph 3 state if our pleadings are correct or not correct. Obviously some things you have no knowledge if it is correct or not. Examples of things you have no knowledge of are: the Date of Marriage or Date of Separation or the name of the other party, etc. You should deny these on lack of information and belief.

(a) If you see anything that you know is not correct please so state. The most common error is the formal name of the employee benefit plan is wrong in the joinder pleadings and needs to be corrected.

(b) In Paragraph 3 you might add in a clause like: "We reserve all our rights under California Family Code section 2072, 2073 and all other rights under California law. We do not waive any of our rights. We may, but will almost certainly not be appearing at the court appearances."

2) We would like any model QDRO order forms that you have. If necessary we have our own. However often different plans want special language. If you have your own please send it.

3) Thank you for your anticipated cooperation. If there are any questions or problems please call. I have attached the joinder laws in California in the Family Code. Thanks again!

Yours, Your name

Underline bold emphasis added to the below.

FAM §2063. Notice of Appearance

(a) The employee benefit plan shall file and serve a copy of a notice of appearance upon the party requesting joinder within 30 days of the date of the service upon the plan of a copy of the joinder request and summons.

(b) The employee benefit plan may, but need not, file an appropriate responsive pleading with its notice of appearance. If the plan does not file a responsive pleading, all statements of fact and requests for relief contained in any pleading served on the plan are deemed to be controverted by the plan's notice of appearance. [Added 1992 ch. 162 (optve. January 1, 1994); amended 1994 ch. 1269.]

FAM §2064. Pension Benefit Plan Not Required to Pay Fee

Notwithstanding any contrary provision of law, the employee benefit plan is not required to pay any fee to the clerk of the court as a condition to filing the notice of appearance or any subsequent paper in the proceeding. [Added 1992 ch. 162 (optve. January 1, 1994); amended 1994 ch. 1269.]

ARTICLE 2. PROCEEDINGS AFTER JOINDER

FAM §2070. Procedure for Joinder of Employee Pension Plan

(a) This article governs a proceeding in which an employee benefit plan has been joined as a party.

(b) To the extent not in conflict with this article and except as otherwise provided by rules adopted by the Judicial Council pursuant to Section 211, all provisions of law applicable to civil actions generally apply, regardless of nomenclature, to the portion of the proceeding as to which an employee benefit plan has been joined as a party if those provisions would otherwise apply to the proceeding without reference to this article. [Added 1992 ch. 162 (optve. January 1, 1994).]

FAM §2071. Notification Employee Pension Benefit Plan

Either party or their representatives may notify the employee benefit plan of any proposed property settlement as it concerns the plan before any hearing at which the proposed property settlement will be a matter before the court. If so notified, the plan may stipulate to the proposed settlement or advise the representative that it will contest the proposed settlement. [Added 1992 ch. 162 (optve. January 1, 1994); amended 1994 ch. 1269.]

FAM §2072. Appearance by Employee Pension Benefit Plan

The employee benefit plan is not required to, but may, appear at any hearing in the proceeding. For purposes of the Code of Civil Procedure, the plan shall be considered a party appearing at the trial with respect to any hearing at which the interest of the parties in the plan is an issue before the court. [Added 1992 ch. 162 (optve. January 1, 1994); amended 1994 ch. 1269.]

FAM §2073. Effect of Date of Order Resulting From Hearing Not Attended by Employee Pension Benefit Plan

(a) Subject to subdivisions (b) and (c), the provisions of an order entered by stipulation of the parties or entered at or as a result of a hearing not attended by the employee benefit plan (whether or not the plan received notice of the hearing) which affect the plan or which affect any interest either the petitioner or respondent may have or claim under the plan, shall be stayed until 30 days after the order has been served upon the plan.

(b) The plan may waive all or any portion of the 30-day period under subdivision (a).

(c) If within the 30-day period, the plan files in the proceeding a motion to set aside or modify those provisions of the order affecting it, those provisions shall be stayed until the court has resolved the motion.

(d) The duration of the stay described in subdivision (a), and the time period for filing the motion to set aside or modify provisions of the order, shall be extended to 60 days if the plan files with the court and serves on all affected parties a request for extension within the 30-day period.

(e) Either spousal party may seek an order staying any other provisions of the order and associated orders or judgments related to or affected by the provisions to which the plan has objected, until the court has resolved the motion, in order to protect the right of the party to seek relief under subdivision (c) of Section 2074. [Added 1992 ch. 162 (optve. January 1, 1994); amended 1994 ch. 1269.

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REQUEST TO EXPEDITE PROCESSING ON EMPLOYEE RETIREMENT OR DEFERRED COMPENSATION PLANS

Section 24

DATED: ___________

Re: Marriage of ----------- etc.

Dear Sirs:

I represent -------.

We have already sent you a -------------

We do hope that you cooperate. So often in these divorce cases the one without the retirement or deferred compensation interest loses out. Few attorneys do QDRO type retirement plan orders. Instead the judgment says that the "court reserves jurisdiction" over the retirement plan. In actual fact this usually means that the spouse without the plan gets nothing. Usually it is a woman. She does not have the money to hire another attorney so ends up not pursuing things at all. When the husband retires he usually has a new wife and the original wife, who probably put in years in the marriage, ends up with nothing.

So often in the law and life the party with little money ends up with even less money because they do not have the money or ability to enforce their rights.

I do hope that the reader of this letter who works for the plan has mercy and does not treat this as "just another case." The party involved desperately needs the money or to have their interest secure.

When things drag on without any resolution on the retirement plans the effect on the family is negative. Years later, when tempers about the pain of the divorce have cooled, there are still negative feelings because the weaker party does not have a secure interest in the retirement plan. The reader has probably noticed this. When the divorced parents at their children's wedding make a point to sit as far away from each other as possible and scowl at each other. Often it is because one party does not have a secure interest in the pension plan. This fact eats away at the weaker party and the stronger party (who still has the plan alone) gloats. This continues at the birth of the grandchildren, first communion of the grandchildren right on down the line. It even continues when the cycle of life repeats itself when the grandchildren marry.

You, the reader, can help to prevent this from happening. Please help us secure the respective interests in the retirement plan. Thank you.

Yours, sign your name

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REQUEST FOR INTERPRETATION LETTER FOR ENCLOSED PROPOSED QDRO

Section 25

DATED:

Enclosed is our proposed QDRO order. Please review it. It is easier if approved by you before all the parties, attorneys and the judge sign it. Otherwise if it is signed by all the parties and the court and then you refuse it we are just back to square one. It is very time consuming for us and you to again read and review another QDRO order. If there are any problems please let me know. If the order is proper please sign the last page or send a letter saying it is approved by you.

We request an interpretation letter from you as to what the provisions of the QDRO retirement order are. There are several reasons why you should do an interpretation letter:

· Your company or plan can reduce its potential liability exposure by expressly stating all of the rights and entitlements of the Alternate Payee in laymen's terms. Many times the plan's interpretation of the QDRO does not match the attorneys' or parties intent. Rather than distributing the wrong amount to the Alternate Payee, the company or plan can avoid this by providing the parties with a detailed description of the Alternate Payee's benefit entitlements in basic layperson's terms. Some attorneys and agencies refer to this as a "Cover Yourself" letter.

· There is another benefit to your company or plan. The interpretation letter makes a good addition to the QDRO file. In this matter, when the QDRO is administered, say, ten years later, the plan administrator does not have to reread and interpret its terms and provisions. The interpretation letter will aid the administration of the QDRO years later because it spells out all the rights of the Alternate Payee and Participant in a clear and concise manner. Please keep a copy of the interpretation letter in your file. Since many of the provisions are probably the same from case to case you could do a template letter. The same or similar basic letter template with just the names and other information added.

· Many times the parties are seeing what will happen to the Alternate Payee or Participants pension or retirement benefits for the first time when they read the plan administrator's interpretation letter. The Participant knew that he or she would lose some of the pension or other benefits someday, but not how much. As a result, the interpretation letter provides a wonderful tool for the parties in analyzing the terms of the QDRO and whether the rights granted to the Alternate Payee agree with the terms of their judgment of dissolution. The parties will have an opportunity to dispute the interpretation of the QDRO by the plan administrator within, we hope, 30 days. Once either party disputes the interpretation, he or she will have the time necessary to submit a clarifying or amended QDRO.

· Very few attorneys do QDRO retirement plan orders. The other attorney in this case may not be familiar with these and will refer it for a fee (About $600) for another attorney to review each order. This is just for the review of a proposed QDRO order. Doing an actual QDRO cost even more (about $950 in the Riverside Area). By doing an interpretation letter you are saving the parties money in not having to hire another attorney to review the order. Having you "give a simple layman's terms review" of the order is much better and less costly. You may well ask: "Why don’t you just tell the other attorney or person what the rights are?" Because attorney's represent one party and not the other, so the other side may get very suspicious. Also the attorney who has drawn up the QDRO may be surprised as to how the administrator interprets the QDRO.
I hope I have not come on too strong here. By doing this interpretation letter you will not only cover yourself in case of misunderstanding but you will also help the Alternate Payee and Participant understand their interests without having to hire yet another attorney to explain it. Hopefully we will have no problems here. Thank you for your anticipated cooperation. If there are any questions or problems please call. Thanks again!

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PROPOSED RETIREMENT ORDER TO ATTORNEY FOR OTHER SIDE

Section 26 DATED: __________

I will "bullet" the paragraphs for ease of reading.

· Enclosed is the retirement order in this case. It has been approved by the plan itself. Please review it. If acceptable please sign and return.

· If it is not acceptable we request that you get your own approved QDRO order. Once approved by the plan please return to us for approval.

· If we don’t hear from you within fifteen days of this letters day we will assume that this proposed retirement order is OK and file a motion to have it signed. In the alternative, if this is an after judgment situation where a QDRO was ordered to be prepared in the judgment, we will submit it directly to the court.

· Thank you for your anticipated cooperation. If there are any questions or problems please call. Thanks again!

Yours, sign your name

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RELEASE OF INFORMATION AUTHORIZATION FORM FOR DEFERRED COMPENSATION AND OTHER EMPLOYEE BENEFITS

Section 27 I __________________________________ SSAN ___________________ authorize you (name of plan) _________________________to release to ________________________ all requested documents, records and information in your possession pertaining to my benefits under any retirement or other plan which you may maintain or administer. This would be information includes, but is not limited to, all qualified and nonqualified defined benefit and defined contribution plans, stock option plans and all other forms of deferred compensation arrangements. It also includes, but is not limited to, employment benefits including insurance, disability and welfare programs and an employment history. Documents, records and information should include any benefits accrued under subsidiary or successor or contributing employers as it relates to my retirement benefits under any defined benefit, defined contribution, deferred compensation or any other related plans. The purpose of this authorization is to enable this office to obtain the necessary information to prepare proposed orders for division or review by the court in a dissolution of marriage action.

This office represents one of the parties in the dissolution and you are authorized to correspond and communicate directly with this office or personnel at this office on all pension or deferred compensation matters which may arise in my dissolution. Thank you for your anticipated cooperation.

I hereby authorize the Employee Benefits Department, or any other department, agent, officer or employee of Employer or the Plan Administrators of all such plans to provide copies of any and all documents relating or pertaining in any way to my employee and retirement benefits as mentioned above to ____________________ at the address of: __________________________________________.

This release shall also be deemed to apply to any Military pension rights or other benefits arising out of military service, and any Federal (including CSRS and FERS), State, or local government civil service pension or other employee benefit plans.

Please send a copy of the Summary Plan Description.

A photocopy of this form shall have the same force and effect as the signed original.

OTHER SPECIFIC INFORMATION REQUESTED IN ADDITION TO THE ABOVE:

__________________________________________________
Employee signature

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MODEL LETTER TO ATTORNEY WHO WANTS TO DO THE QDRO AFTER THE DIVORCE

· Section 28 Note to person sending this out: The below is in reference to QDRO orders governed by ERISA. Much could also be true of government pension plans.

·             Often an attorney will suggest we should hold off till after judgment for doing the QDRO. Below is a quote from a book. It is by Gary A. Shulman and entitled "Qualified Domestic Relations order Handbook" 3^rd edition. It is published by Aspen Publishers at 1-800-638-8437. The book ISBN number is 978-0-7355-5976-9. It is from §10.01:
     "The importance of drafting the QDRO concurrently with the divorce proceeding cannot be overemphasized. Whether the Participant is still actively employed or already retired at the time of divorce, the pension issue should be finalized at the same time as the other non-pension issues and a QDRO should be drawn up immediately. There are countless thousands of nonparticipant former spouses around the country waiting for a pension check that will never appear in their mailboxes. Why? Because their separation agreement included language that awarded them a portion of the Participant's pension benefit; they have in their possession a copy of their divorce decree and separation agreement to confirm they ownership interest in the pension.
     "Imagine their shock years later when they discover that, unknown to them their ex-spouse had already retired and had been receiving a pension. To make matters worse, the Participant had elected a life only pension when he retired, making it too late to provide survivorship protection to he former spouse. This is not just a hypothetical instance. It is happening every day to former spouses throughout the United States
     "Most attorneys are award of the potential adverse consequences to the non-participant spouse should the Participant die before the QDRO is drafted. It can be just as devastating to the former spouse if the Participant simply retires before the QDRO is drafted. As explained more fully in §10.04, part of the reason lies in the fact that once a Participant elects a form of pension under and ERISA governed plan, that election is irrevocable. If the Participant is already retired at the time of the divorce proceeding, the need for a timely QDRO is even greater. Every monthly pension check issues to the Participant before the QDRO is effective is one less check sent to your client. retroactive pension payments are not permitted."

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PRINCIPAL FEATURES OF 401(k) LUMP SUM DISTRIBUTIONS WITH AND WITHOUT A QDRO

Section 29 The below is from the 2005 update of "Valuation of Pensions in Divorce" by Snyder. It is not California specific. Keep in mind that this is from 2005 and the laws may have changed.

	In-Service Distributions of 401(k) Plans
	Hardship Withdrawal	Plan Loan	QDRO	Separation from Service
Maximum amount	Up to 100% of account	Lesser of $50,000 or 50% of account	Up to 100% of account	100% of account
Taxable	Yes	No, unless not repaid	Employee: No Spouse: yes, unless IRA	Yes, unless IRA
20% Withholding	No	No	Yes, unless IRA	Yes, unless IRA
10% Penalty	Yes, if under age 59½	No, unless not repaid	No	Yes, if under age 55, unless for an IRA
Transfer or Rollover	No	No	Yes	Yes

Note: non-QDRO mechanisms for pension distributions pertain only to lump sum payments from a qualified plan.

A "hardship" withdrawal definition varies by the plan, as does the amount or percentage of a 401(k) account that may be available for this special kind of payout. If the plan contains this feature and the employee in divorce applies for and receives a lump sum distribution, the money may be used by the employee to pay the spouse as part of the divorce decree or settlement. The amount paid by the plan is taxable to the employee, whether it is turned over to the spouse or use for any other purpose.

A hardship withdrawal or distribution is not eligible for transfer or rollover to an IRA or other qualified plan. Income tax withholding is not required, but the distribution remains taxable to the employee.

In the absence of a QDRO, it would be difficult for an ex-spouse to obtain part or all of the other spouse's 401(k) distribution through a divorce decree or settlement agreement if the employee spouse has separated from service. Without a QDRO, the plan will not make any payments to a former spouse, regardless of the terms of the divorce decree or settlement agreement. The one rare exception is if the plan can find someway to interpret the divorce decree itself as being a QDRO per se. Further, once the plan has made a distribution to or on behalf of the terminated employee, there is nothing left for the former spouse, except sue the spouse employee for the money.

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DANGER SIGNALS IN RETIREMENT PLANS

Section 30 This is from the Riverside Press Enterprise for March 6, 2005. Please read the article for full details. The newspaper said the source was the Employee Benefits Security Administration.

There are ten warning signs that your retirement contributions (The below involves 401(k) type savings or investment plans) may be being misused. When suspicions arise, contact the Employee Benefits Security Administration at 1-866-444-3272

1) Account statements arrive late or at irregular intervals.

2) Account balance isn’t accurate.

3) Your employer failed to deposit your contribution into your account on time.

4) An account balance drop can't be explained by market ups and downs.

5) Account statement shows your contribution wasn’t made.

6) Account statement shows investments you didn’t authorize.

7) Former employees are having trouble getting their benefits paid on time or in the right amount.

8) There are unusual transactions such as a loan to your employer.

9) There are frequent, unexplained changes in the investment manager.

10) Your employer recently experienced financial problems.

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LACHES ON QDRO ORDERS

Section 31 This is done about 5-19-05. When Alternate Payee waits long time to do a QDRO and wants retroactive money laches is a defense. In a nutshell "laches" is when you have a right or cause of action but don't exercise it. You must "use it or lose it". This is somewhat similar to (but not the same as) a statute of limitations. See below cases. Obviously you should read the entire cases.

From Marriage of Krempin (1999) 70 Cal.App.4th 1008, 1021

We note finally that if the court were to rule in appellant's favor then respondent would be faced with a large arrearage in payments. The situation would be analogous to that presented in a proceeding to divide a pension which was omitted from the judgment after substantial pension payments have been received (see Casas v. Thompson (1986) 42 Cal.3d 131, 151-152), and some of the same principles that apply in the latter situation ought also to apply here. In determining respondent's obligation for past payments, the court should consider "any facts relevant to the fairness of such payments," including the defense of laches, and "may 'tailor the form of that award' to avoid placing an undue burden" on respondent. (Id. at p. 152.)

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NUNC PRO TUNC AS RELATES TO RETIREMENT ORDERS

· Section 32 Danger is that there is not QDRO on file. Participant dies with no eligible surviving spouse (the plan may have a one year marriage requirement). What to do. The following could help:

a) Review the judgment. Determine if the wording in the judgment could be considered a QDRO in itself.

b) Call the plan administrator

c) Determine if others are entitled to survivor benefits under the plan as a result of Participant's death. For example even if there is another subsequent spouse and that Alternate Payee is receiving benefits we may still be able to do a QDRO to award a portion of the benefits to the first former wife. It is not clear.

d) Do a nunc pro tunc QDRO that would be deemed effective before the Participant's death. It has been done before.

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HODGE PODGE OF RAW NOTES ON QDRO AND RETIREMENT PLAN ORDERS

Section 33 The below is in no special order. These are raw notes made by the attorney. It may be difficult to understand. I suggest you use Control + F to use a key word search to find what you may be looking for. Obviously you should read the case also. Don't just rely on the below. The below is just a way to point you in the right direction.

	QDRO CASES
QDRO	Life Insurance Company of North America v. Ortiz (9^th Circuit 2008) 535 F.3d 990 – a former wife who, after a dissolution, remained the named beneficiary of her former husband's life insurance policies was entitled to the insurance proceeds, except to the extent that the new surviving spouse's Community Property funds paid for the final 31 day policy term
QDRO	IRMO Padgett (2009) 172 Cal.App.4th 830 trial court stipulation with old wife that: "Court reserves jurisdiction over his retirement plan." no QDRO. Later he dies with new wife. Old wife wants nunc pro tunc QDRO. Court of appeals says no. Where Participant dies or retires before the former spouse secures a QDRO or order awarding that interest to her and just says "reserves jurisdiction" This is not adequate for nunc pro tunc QDRO. Nunc pro tunc is usually for clerical errors. Here to do a whole QDRO when no interest was even granted to her in the judgment is going to far. She is out of luck.
QDRO	Commissioner of IRS v. Dunken (2007) 41 Cal.App.4th 1337 – Gilmore case. Wife wanted her money from retirement and husband liked to work. He paid her what he would have gotten if retired. He cannot deduct as Spousal Support. He pays taxes on the money. Option is reducing the payment for what wife would have received as her after taxes income makes sense.
QDRO lien tax levy	Additionally, pending entry of a QDRO, counsel for the nonparticipant ("alternate payee") spouse should inquire of the plan administrator whether the IRS has made an attempt to levy on the participant spouse's interest in the plan. An intervening IRS levy to recoup the participant spouse's tax delinquencies will be enforceable against the participant's full interest in the plan--including the nonparticipant spouse's CP interest. [See In re McIntyre (9th Cir. 2000) 222 F.3d 655, 660; United States v. Sawaf (6th Cir. 1996) 74 F.3d 119, 124-125; and ¶8:1172.3]
QDRO	Carmona v. Hilton Hotels (2008) filed 9-17-08 Participant retires with wife 8 still married to. She gets the SBP. He divorce her. She waives the QJSA in the judgment. He then marries wife 9 and dies. Wife 9 wants the survivor benefits. Two holdings: 1. one party loses in state court and brings federal action. Under Rooker-Feldman Doctrine can't do this since is just an appeal from unfavorable state court judgment. Holding 2 was that wife 8 have the QJSA vest in her under QDRO law. She gets the entire QJSA. She could not waive it in state court. Federal preemption and it automatically vested in her. Wife 9 gets nothing even though she was his surviving spouse. Upon retirement it all vested in wife 8 and wife 8 could not waive it in the state court judgment. Once a Participant retires the spouse at the time of retirement becomes the "surviving spouse" entitled to the QJSA benefits. – There is contra case law on this. )[9:379] Distinguish--waiver of survivor benefits: The weight of authority holds that an ex-spouse, although the designated beneficiary in the participant former spouse's pension plan, may not receive survivor death benefits under the plan when he or she waived that right as part of a divorce settlement--whether or not the settlement satisfies QDRO requirements. The waiver is enforceable so long as it is explicit, voluntary and made in good faith (i.e., an effective common law waiver). [Fox Valley & Vicinity Const. Workers Pension Fund v. Brown (7th Cir. 1990) 897 F.2d 275, 279-280 (en banc), cert.den. (1990) 498 U.S. 820 (non-QDRO waiver); Estate of Altobelli v. International Business Machines Corp. (4th Cir. 1996) 77 F.3d 78, 81-82 (waiver by non-QDRO MSA incorporated into disso judgment); Silber v. Silber (N.Y. App. 2003) 99 NY2d 395, 402-404, 757 NYS2d 227, 232-233 (waiver by QDRO)--common law waiver prevails over beneficiary designation; compare Melton v. Melton (7th Cir. 2003) 324 F.3d 941, 945-946--MSA general "revocation" of marital interests, without specific reference to ERISA plan, not sufficiently explicit to override former spouse's right to plan benefits as designated beneficiary] (An apparent minority view, however, has held otherwise. See McGowan v. NJR Service Corp. (3rd Cir. 2005) 423 F.3d 241, 246-250; McMillan v. Parrott (6th Cir. 1990) 913 F.2d 310, 311-312; see also Krishna v. Colgate Palmolive Co. (2nd Cir. 1993) 7 F.3d 11, 16; and further discussion at ¶8:1203-1203.1.)
QDRO readjustment	[8:1521.10] Compare--readjustment where judgment recites no fixed amounts and reserves jurisdiction: In contrast to Melton, supra, where the judgment dividing the pension recited fixed monetary amounts estimated to be payable to each party in the future, a court may order the pension divided in-kind to reflect the parties' intent and, so long as the judgment reserves jurisdiction, thereafter reconcile the division with later changes affecting the pension. [Marriage of Gowan (1997) 54 Cal.App.4th 80, 86, 62 Cal.Rptr.2d 453, 455-456--CP interest in pension referenced in 1978 disso judgment properly divided years later as including benefits resulting from another period of service commenced postjudgment (see ¶8:1118.1 ff.)] 3)[8:1521.11] Compare--no postjudgment reapportionment of stream of payments asset: An asset representing a stream of future payments--such as an annuity--that was awarded to one spouse by the dissolution judgment cannot be "revisited" upon that spouse's death by way of a Ca Fam § 2556 motion to reallocate the future payments to the other (surviving) spouse. "Whatever else it was, the 'asset' represented by the entirety of the [annuity] payments was obviously not missed." [Marriage of Perry (1997) 58 Cal.App.4th 1104, 1112, 68 Cal.Rptr.2d 445, 450 (brackets added)--personal injury structured settlement annuity payments awarded to H in disso judgment not "omitted asset" subject to allocation to W by § 2556 motion after H's death]
Q		Nizenkoff: Spousal support and PERS. He get ss and she get half his CalPERS Husband and wife have been married 20 years. Wife is a government worker who does not pay into social security but has a STRS, PERS or other government retirement plan. Husband has social security. Upon divorce husband wants half of the interest in her governmental retirement plan built up during marriage. Wife wants half his social security benefit or an offset against the value of her retirement. Dad argues: "The law is the law. I get half of her governmental plan and she gets none of my social security. My social security is mine without any offset. There are derivative benefits to her that she may be entitled to like the "ten year rule" on my benefits, but that is all." Wife argues: "This is not fair. I have been paying into the governmental plan for all these years and he gets half. He has been paying into social security all these years and I get nothing. Even if I did qualify for the ten year rule it would be no money out of his pocket. It is not fair. There should be an equalization or offset between the value of my plan and his social security benefits." How would you rule? You be the judge! 16. Husband wins. Social security is separate property and is never divided or offset against the other parties retirement plan. Marriage of Nizenkoff (1976) 65 Cal. App. 3d 136. For information on derivative benefits call Social Security at 1-800-772-1213. If you object to this contact your U.S. congressman or senator. They can change this. Ybj16
Q		Arizona: Long living ladies Women in governmental retirement plan find that they must put more money into the plan to receive the same benefits or, if they put the same amount in, receive less benefit upon retirement. Governmental retirement plan argues: "This is only fair. Women statistically outlive men. Otherwise men would be subsidizing the women. Women should only naturally pay in more since they live longer. To rule any other way would be sex discrimination against men since men would be subsidizing the longer living women." Women argue: "This violates Title VIII of the Civil Rights Act of 1964. We women should not have to pay more in or receive less just because we statistically out live men. Afro-Americans statistically do not live as long as whites. They don't have to put less in because of this. This is sex discrimination against women." How would you rule? You be the judge! 17. Women win. This does violate Title VIII of the Civil Rights Act of 1964. As decided by the U.S. Supreme Court in City of Los Angeles, et al (1978) 435 US 702 and Arizona, et al (1983) 463 US 1073 Ybj17
Q		Babuta: Marines retirement pay modified upward Ex-husband is in the Marines. At dissolution the court reserves jurisdiction over his military retirement. Marines are doing a drawdown in strength (downsizing). Two years before retirement he decides to forego his retirement pay, instead choosing to receive 36 annual payments. Ex-wife claims an interest. Ex-husband argues: "This pay is before my retirement. It is a cushion for job loss and job dislocation and not payment for past services rendered. It should be my separate property." Ex-wife argues: "He can't defeat my interest in his retirement benefits by invoking a condition wholly within his control. I still have an interest in the benefit because he is taking it instead of the retirement. If he gets this as his separate property it leaves me with nothing because he is giving up his retirement for it." What would you do? You be the judge! 23. Ex-wife wins for the reasons she stated. This is in the nature of retirement benefits even if it does not have that label. Marriage of Babuta (1998) 66 Cal. App. 4th 784. Ybj23
Q		Shelstead: What qualifies as alternate payee beneficiary in QDRO – IRMO Shelstead (1998) 66 Cal.App.4th 893 says Alternate Payee can only be Participant spouse, former spouse, child or other dependent. Ybj26
Q		Lehman: Downsize civilian pension benefit and she want share – IRMO Lehman (1998) 18 Cal. 4th 169. Enhanced early retirement benefits. She has Community Property interest. Ybj39
Q		Non military spouse may be entitled to continue receiving percentage of former husbands military retirement benefits after husband waives retirement to receive military disability Marriage of Krempin (1999) 70 Cal.App.4th 1008 Divorce gives Patricia a 25% interest in Robert's Air Force retirement plan. Robert retired from the Air Force after the divorce. His retirement benefits were converted to disability benefits. Robert argues: "Since there is now no military retirement but only disability she should not share in anything. The law is that retirement benefits are divisible in divorce but not disability benefits. She gets nothing". Patricia argues: "The only reason he converted to disability benefits are because they are more than what his retirement would have been and it is tax free. I should share in these benefits." What would you do? You be the judge! Patricia wins. The court gives a resulting trust theory that carries out the inferred intent of the parties. The inferred intent was that she receive 25% of his retirement pay. The court will carry out this inferred intent. Marriage of Krempin, filed 3-18-99. The court stressed that the parties "reserved jurisdiction" over the military retirement plan. Good idea to always reserve jurisdiction over the retirement plan. As an aside, Patricia probably got more money here since the disability income was greater than the regular retirement income. Ybj54
Q		Marriage of Rich. 1999 QDRO where wife died and plan wanted to keep her half since she died. Court says "no". Unless specifically spelled out in the QDRO he keeps his interest and plan must pay all to him as if she never existed. Ybj72
Q		Steward v. Thorpe filed 3-31-00. QDRO orders should be construed liberally. Broad definition of QDRO Parties divorce in California. Husband has an ERISA retirement plan. The martial dissolution order did not have a QDRO (Qualified Domestic Relations Order is to get retirement money out of the plan) in the opinion of the retirement plan. The money in the plan is all given to the husband. Retirement plan argues: "Ah ha, we caught you. You did not use specific language in the dissolution order that would make this a QDRO. The order did not include your address or the period of time the order applies to. Since you did not specifically have the requirements of a QDRO we were correct in giving the money to husband as per his request." Wife sues and argues: "Even assuming that the dissolution order did not qualify as a QDRO I can still sue. The retirement plan knew I had an interest and should have protected it. Also you want us to jump through hoops to satisfy your specific requirements. It is not reasonable." What would you do? You be the judge! 79. Wife wins. QDRO orders should be construed liberally. Even if not all the T's are crossed it can still qualify if the plan administrator can find the information independently from sources readily available to them. The court felt the order does qualify as a QDRO. Also even if it is not a QDRO, under the unique facts of this case the retirement plan knew of her interest and should have protected it. The QDRO provisions of the law do not suggest that wife has no interest in the plans until she obtains a QDRO, they merely prevent her from enforcing her interest until the QDRO is obtained. Stewart v. Thorpe filed 3-31-00. Comment: This is a federal case that requires retirement plans to be more liberal in interpretation of QDRO orders. There are seven requirements for a QDRO. Four things you must do and three things you cannot do. Ybj79
Q		Ed worked for Flying Tiger Airlines. There were two retirement plans. Date of Marriage is 1962. Date of Separation is 1982. Ed worked for Flying Tiger from 1966 to 1989 when Flying Tiger merged with FedEx. He then worked for FedEx till he retired in 1996. Retire plan #1 became fixed in value in 1989. Retire plan #2 was intertwined with the new FedEx when the merger took place. Should the 7 years after the merger be counted in figuring the Community Property portion? Wife argues: "Plan #1 was fixed in time in 1989. The denominator for the time should be just the time he was working for Flying Tiger. Plan #2 the same argument applies." Husband argues: "No, we should use the total time from 1966 to 1996 when I retired for the denominator to figure her share." What would you do? You be the judge! Miscalculation of pension benefits resulted in diluted share when spouses post dissolution benefits were factored into division of Community Property assets. For wife on Plan 1 because the time with FedEx was not a factor in the plan. Consequently adding in the 7 years would just dilute her interest. Plan 2 for husband since it was tied into the FedEx plan. Marriage of Bowen, filed 8-29-01 (2001) 91 Cal.App.4th 1291. I apologize if this is hard to follow. Complicated facts. Ybj147
Q		Ex-wife wins on her stated reasons. ERISA does spell it out that it does supersede the state law. The retirement plans were covered under federal law and that is the law that applies. Marriage of Egelhoff, (2001) 532 US ____. This was a United States Supreme Court case. They rarely handle family law. Something not answered is what if ex-wife murdered her former husband. Would she still receive the proceeds? ERISA pre-empts Washington State statute which provided that designation of spouse as beneficiary of nonprobate asset was revoked automatically upon dissolution, to extent that state statute applied to employee benefit plans governed by ERISA. Ybj150
Q		Marriage of White (1987) 192 Cal.App.3d 1022. Income from pension plan can be used as additional income for Spousal Support even though it was a property division. Best to do QDRO here or seek stipulation that the income not to be treated as income for support. Ybj151
Q		Early retirement was a contractual right earned during Marriage and is Community Property; marital savings history must be considered in support order. For Jennifer on the ERB. He would not have had the benefit if it had not been for his work during the Marriage. The ERB benefit accrued during the Marriage so she has an interest. On the savings for Jennifer again. The parties practice of saving money should be considered by the court in setting permanent Spousal Support. Marriage of Drapeau, filed 10-30-01 (2001) 93 Cal.App.4th 1086. Ybj154
Q		ERISA pension case. Mary was married to Herb in 1955. She never divorced him after they separated. Herb married Dorothy in 1971. Herb had a retirement plan and died in 1985. Who is entitled to his surviving spouse benefits? Mary argues: "We were never divorced. We were still married when he died. Even though we had not lived together for 34 years I am still his wife. There is a Florida presumption on second marriage being considered valid, but I rebutted the presumption by showing my marriage to Herb and that I am still alive and we were never divorced." Retirement plan argues: "Under Florida law the second marriage is presumed valid. Dorothy was the last marriage and should be considered valid." What would you do? You be the judge! For Mary. Dorothy was not a party to the action. Mary was trying to get the money from the pension plan and was successful. Social security was also involved. You can be sure that Dorothy will now go to court also. Davis v. Armco 169 F.Supp2d 164 (W.D.N.Y 2001). The lesson here is that if you marry someone who was previously married be sure that they really are divorced. If you have a previously existing Marriage all the subsequent Marriages are void unless the first Marriage legally ended. Who was the beneficiary on ERISA survivor benefits to wife. Ybj157
Q		For ex-wife for reasons stated. There is no provision in ERISA that authorizes nunc pro tunc order after the participant dies. However there is no provision that says it can't be done. Here the man died with no new wife and the forgotten retirement plan had not paid out any money yet. A nunc pro tunc order can be made when no proceeds from the omitted plan have been disbursed nor a competing Alternate Payee identified. Patton v. Denver Post Corporation, 179 F.Supp2d 1232 (D Colo. 2002). Ybj165
Q		"Yes, you are right. Case law holds that this is true. However we don't have to pay you Melvin does. The case you mention is Marriage of Gillmore and Gillmore does not identify who the person or entity from whom the nonemployed spouse is to receive payment. The rules of OCR forbid paying any money out till actual retirement. Hence Melvin must pay her her share out of his own pocket. This is a government retirement plan and not an ERISA plan. MARRIAGE OF Jensen (1991) 235 Cal.App.3d 1137. Ybj172
Q		Vera wins for reasons stated. Earl should not be able to limit Vera getting her share. The amount that he could have retired at can be computed. He then can then pay her share based on that computation. The other side is that she can't have it both ways. If she starts receiving benefits she gives up increased payments in the future which might accrue due to increased age, longer service and a higher salary. Thus, if Vera chooses to receive her share of the retirement benefits immediately, she will forfeit her right to share in the increased value of those benefits In the future. (In re Marriage of Scott (1984) 156 Cal.App.3d 251, 254-255 says she does not give up COLA benefits) IRMO Gillmore (1981) 29 Cal.3d 418 – if Gillmore election then Alternate Payee is locked out from future enhancements except for COLA adjustments probably. Ybj173
Q		For Susan for reasons stated. For her to waive her Gillmore option of getting her benefits when Bill is eligible to retire (rather than when he actually retires) she would expressly have to do so in the Marital Settlement Agreement. It can't be implied. If she does so waive it must be an express provision. The law has situations when "magic words" must be used. Pleading guilty in criminal court is similar. It is a real job. IRMO Crook (1992) 2 Cal.App.4th 1606. Ybj174
Q		Diann wins for reasons stated. Antoinette was named beneficiary but the terms of the dissolution judgment changed the beneficiary designation to be the kids till they were age 18. After they were all age 18 there was no longer a beneficiary. The money then goes to his estate and current wife Diann will get the money. Seaman v. Johnson (2002) 184 F.Supp2d 642 (E.D. Mich). This is an unusual example of the strange things that can happen in the law. Ybj176
Q		183. Wife wins for reasons stated. Husband's argument is a matter of form over substance. Even though it may have a different label it is still a form of retirement income. Most of it is based on his years of service. The bottom line is that California and most states consider VSI pay for the military as Community Property. IRMO Babauta (1998) 66 Cal.App.4th 784. Ybj183
Q		184. Plan wins. If she wants to get her money before he retires she must use the normal retirement age. She can't force him to use the early retirement. He can keep working if he wants to. She will get her money but only based on the normal retirement age. What she can do is use the normal retirement age money. If he does take early retirement she can ask to have her interest recalculated in reference to the larger amount. IRMO Oddino (1997) 16 Cal.App.4th 67. Ybj184
Q		For the kids for mom's stated reasons. It is possible to do a nunc pro tunc QDRO. There is no requirement that a QDRO order must be in hand before benefits become payable. The court infers that even if benefits had been paid to new wife the kids could still get a QDRO and get benefits. However it would not be retrospective. Only for future benefits. Directors Guild v. Tise 234 F3d 415 (9^th Circuit 2000) Ybj193
· Q		· Wife wins for reasons stated. ERISA type insurance is by federal law and preempts state law. The state law could say anybody in the world is the beneficiary and it would have no effect. The ERISA policy goes by federal ERISA law. The daughters should have had a QDRO order in the judgment of divorce. Metro Life v Mulligan, (2002) 210 Fed. Supp 2d 894. Ybj200
Q		New wife wins. Old wife should have done her QDRO before he died. Once the death of the Participant in the plan it freezes the interests. It is like the Statute of Limitations in a personal injury action. You must get the QDRO before he dies or it all goes to the new wife. Stahl v. Exxon 212 F.Supp. 2d 657 (S.D. Texas 2002). Comment: Often in dissolution judgments the court just reserves jurisdiction over the retirement plan. This could be devastating for the former spouse in case the Participant has remarried and there is no QDRO order in effect. Ybj203
Q		Al wins. First of all this was not a valid QDRO order in the first place. On that basis alone the children's claim fails. Al wins because there was no QDRO in place. As far as policy goes the concern of ERISA is to provide for the living and not the dead. A former spouse cannot will her interest to others unless they also qualify as a former spouse, child or other dependent of the Participant. Branco v. UFAMILY CODEW 279 F.3d 1154 (9^th Cir. 2002). Comment: This case involved retirement plans. Ybj204
Q		This is not numbered and no YBJ on it. Liberty Life v. Kennedy ((N.D. Ga 2002) 228 F. Supp, 2d 1367. filed July 2002. ERISA life insurance. Man died. He has beneficiary designation on the insurance and a more recent one in his will to someone else. The SBP differed from Insurance beneficiary designation. SBP permits other methods to name beneficiary. It can be done in the will because not forbidden in the SBP.
Q		Husband divorces Margot and court reserves jurisdiction over his retirement. Husband then marries Louan and dies one month after he is eligible to retire. Question is, who gets the surviving spouse benefits? Louan argues: "I was the wife at the time of his death. I should get the surviving spouse benefits. Margot never had a QDRO in effect to secure her interests. The death of husband means I should be able to get the surviving spouse benefits." Margot argues: "This is not fair. I was married to him for many years and should be able to do a nunc pro tunc QDRO that goes back in time and is retroactive. I put in over 20 years in this Marriage. I should still have my rights even though he has died." What would you do? You be the judge! For Margot. This is the Supreme Court of Hawaii. Several federal cases have said the former wife has no rights after the former husband dies unless she has a QDRO in effect. This is relief for those former wives who never did get a QDRO. Problem is that this is a Hawaii and not California case. In state decisions of appellate courts are binding. Out of state decisions are persuasive only. Hawaii is better than nothing. Torres case, filed 12-17-02 in Supreme Court of Hawaii [100 Haw. 397, 60 P.3d 798 (2002)] Ybj230
Q		Barbara wins for reasons stated. The property settlement agreement substantially satisfied the requirements for a QDRO. The requirements for a QDRO are at 29 USC 1056 (d) (3) (C) and (D). The fact that the plan did not receive it till after the Participant's death does not defeat the claim of the Alternate Payee. Smith v. Estate of Smith 248 F.Supp2d 348 (D.N.J. 2003). This is a New Jersey Federal case. It seems that the court wants to find a QDRO to help Barbara. Ybj231
Q		Scales v. General Motors 275 F.Supp.2d 871 (E.D. Mich. 2003) – state court dissolution on QDRO matter. GM take to federal court on QDRO jurisdiction. Appeals court says no. The state courts have concurrent jurisdiction. Her entitlement is based on a state court action. Otherwise every time QDRO issues comes up it would be removed to federal court. filed 7-03
Q		Lyons v. Fairfax Properties (2003) 285 Fed Supp. 2^nd 124. Transfer of assets in ERISA plan can't be transferred to an IRA unless permitted in ERISA plan. Even if he lose job can still keep the old plan. filed 9-03
Q		IRMO Carnall (1989) 216 Cal.App.3d 1010. LACERA plan. Court ordered husband to keep wife as beneficiary of death benefits. However the government plan provides for surviving spouse and not a former spouse. Plan takes to court. Court reverses for plan to back to court to formulate an equitable remedy to protect surviving wife and give former wife some of the benefits.
Q		Time rule apportionment not appropriate when benefit not substantially related to years of service. IRMO Poppe (1979) 97 Cal.App.3rd 1 (navy service calculated as points)
Q		IRMO Cramer (1993) 20 Cal.App.4th 73. San Bernardino Retirement. – Husband had government retirement plan. He leave 60% to wife in dissolution judgment. He dies. County law is surviving spouse or children get the money. Ex-wife here can't get the money since they were divorced at time of death. County law, which was acceptable to the California legislature trumps the judgment in dissolution. She gets nothing.
Q		The case most similar to the situation before this court is IRMO Webb (1979) 94 Cal.App.3d 335. Webb involved a 23 year Marriage. Mr. Webb was a police officer for 17 of those years. He retired from the police department 4 years before the Date of Separation on a permanent disability. The main issue for appeal was whether Mr. Webb's pension was a disability pension which was his Separate Property or whether it is a longevity retirement pension which is Community Property and subject to division. Like the case with John and Tyna even after John reaches age 50 the label will remain disability income. Does it continue to be his Separate Property? In Webb when a policeman who is retired for incapacity reaches the age at which he would have qualified for service or longevity retirement but for his disability, his retirement allowance is recalculated. His monthly allowance is equal to the amount he would have received had he worked without interruption until eligible for service retirement in the rank held by him when he retired. (at page 340). In Webb the court concluded by stating: a) "After Webb reaches age 50, his pension benefits will not be related to his percent disability, but to the years of service he would have rendered but for that disability. His disability will then be significant only in that his allowance will be computed as if he had continued uninterrupted service in the rank he held when retired for incapacity. Because Webb's retirement benefits will be recalculated to parallel those received by officers who earn service retirement, it appears that the predominant function of those benefits after age 50 is to provide for support as if Webb had retired for service, and not to continue to compensate him for loss of earnings resulting from compelled premature retirement and diminished ability to compete In the employment market. "Consequently, as it would be unjust to deprive wife of a valuable property right simply because a misleading label had been affixed to husband's pension fund benefits, it appears that the trial court erred in finding that Webb's pension remains Separate Property after he reaches age 50." (at page 342-343)
Q		"Under the facts here, to determine the proper formula it seems appropriate to apply the principle articulated in Marriage of Brown, 15 Cal.3d at page 842: :"to the extent that [pension] rights derive from employment during coverture, they comprise a community asset subject to division in a dissolution proceeding." To this end, the proper method is to calculate the ratio between the number of years Web was employed as a policeman during the Marriage and the total number of years from the date of his hiring by the department to the date he would become eligible for service retirement but for disability. By this formula, the community interest in the pension to be received after Webb reaches 50 would be 17/25ths; one half of that amount is appellant's share."
Q		QDRO ERISA Metropolitan Life Insurance v. Flinkstrom (2004) 303 Fed Sup, 2^nd series 34 (United States District Court, D Massachusetts) filed 2-17-04 – Dad has ERISA life insurance. He name beneficiary as wife Hall and son Brandon as a contingent beneficiary. Dissolution and judgment says that the other four children are beneficiary. He dies and to court. She can't be beneficiary because, by implication she waived it in the judgment. Other four children can't take since the beneficiary goes by the insurance. Because insurance is fed ERISA. State law not control. Wife Hall waived it in the judgment by consenting to the judgment. However contingent beneficiary Brandon gets all. The judgment not apply to ERISA insurance except on a waiver of beneficiary.
Q		Boggs v. Boggs 520 US 833 (1997) Supreme Court of US basically says that state testamentary laws do not control ERISA – testamentary transfers are not QDRO orders.
Q		AT and T v. Tucker 902 F.Supp. 1168 (C.D. Cal. 1995). Can't get state order for attorney fees against retirement plan covered under ERISA. ERISA preempts a state order that the ERISA plan pay attorney fees. ERISA preempts under section 514 and 29 USC 1144. QDRO case
Q		IRMO Simundaz filed 9-2-04. parties stipulated she get $200 of his retirement plan. Years later it is more and she wants QDRO for more. She argues on basis of Melton case that her $200 is there but the rest is an undivided asset since not specifically awarded to him. The wording says "she is to be paid $200 out of his pension plan." Notice the wording of "his" pension plan. It was, by implication, awarded to him.
Q		IRMO Henkle (1987) 189 Cal.App.3rd 97. Once maximum benefits are earned, further employment not considered in the time rule formula. By add more years not under plan just dilute the Community Property share. Points
Q		Reservation of jurisdiction over retirement plans disapproved in IRMO Bergman (1985) 168 Cal.App.3rd 742.
Q		Court should consider parties probable life expectancies, health and likelihood of premature death in determining plan's present value. IRMO Shattuck (1982) 134 Cal.App.3rd 683
Q		Non-employee spouse who owns Community Property interest in employee spouse's retirement benefits under a defined benefit plan owns Community Property interest in retirement benefits as enhanced. IRMO Lehman (1998) 18 Cal. 4th 169 (early retirement subsidy Community Property on reserved jurisdiction)
Q		Dissolution in one state not mention pension plan. California can adjudicate as omitted asset. IRMO Moore and Ferrie (1993) 14 Cal.App.4th 1472
Q		Government retirement plans may not have Gillmore rights for the Alternate Payee to start to receive benefits when the Participant is eligible to retire. In that case the Alternate Payee will just have to wait. IRMO Nice (1991) 230 Cal.App.3d 444.
Q		Where ERISA pension plan erroneously paid wife's Community Property share of pension benefits to husband, wife has standing to sue plan for breach of fiduciary duty whether or not dissolution order qualified as QDRO. Stewart v. Thrope (9 Circuit 2000) 207 F3d 1143
Q		· Under ERISA §206(d)(3)(E)(i)(II), a pension plan must treat a Gillmore order as a QDRO and make payments to the former spouse "as if the participant had retired on the date on which such payments is to begin under such order (but taking into account only the present value of benefits actually accrued and not taking into account the present value of any employer subsidy for early retirement). IRMO Gillmore (1981) 29 Cal.3d 418 · The Alternate Payee can bequeath Community Property interest in the Participant pension plan benefits to her sons. If Alternate Payee receive money fine. However once she dies the money funnel ends. Alternate Payee can't will the benefits to someone else. Boggs v. Boggs (1997) 520 US 833
Q		If get entire plan put in that the income is return on Community Property and not to be used for Dissomaster income for Spousal Support. White case (1987) 192 Cal.App.3d 1022. Or else put in that other parties division of Community Property is the same as far as income goes. Best do QDRO or division when your client is the participant. Otherwise the income may count for Spousal Support. Would count for Child Support.
Q		The nonemployee spouse who elects to take an immediate distribution of his or her interest in the retirement benefits forfeits any right to share in future increases In the value of the pension. IRMO Gillmore (1981) 29 Cal.3d 418. Consequently any retirement benefits, like early retirement, that come into being after the QDRO are the Separate Property of the Participant. Also see IRMO Shattuck (1982) 134 Cal.App.3d 683. Will not get supplement benefits unless in the QDRO. ----- Sample language three bullets below.
Q		IRMO Saslow (1985) 40 Cal.App.3d 848 holds by supreme court that when disability policies are purchased during Marriage, the Community Property has an interest in disability benefits received after Date of Separation. - Put in clause that: "The court reserves jurisdiction to consider disability benefits if and when they become payable." This is a lesson from IRMO Andreen (1978) 76 Cal.App.3d 667
Q		IRMO Pope at 97 Cal.App.3d at 8. The amount of the navy reserve pension was largely a function of the number of "points" earned. (Essentially one point for each drill attended) and was not a function of the number of years served. The apportionment should have been based on points and not years.
Q		IBM Savings v. Price (2004) 349 Fed. Supp, 2^nd 854 – filed in court 12-13-04 this case - nunc pro tunc QDRO is OK. However must have submitted the QDRO to plan before death of Participant. Even if not perfected the plan had knowledge. Even if QDRO before death not adequate she still has 18 months after his death to perfect it and get it approved. Case does not answer if she had only given notice to the plan after his death. Good discussion of prior cases.
Q		Yes, can have laches defense in one party not get QDRO until long after retirement started. From IRMO Krempin (1999) 70 Cal.App.4th 1008, 1021 From Casas v. Thompson (1986) 42 Cal. 3rd 131, 151-152
Q		IRMO Cornejo (1996) 13 Cal. 4th 381 – involved CalSTRS plan. He continue to work. She want her retirement benefits. Her payments can start when she files a motion to request her payments. Not when he is eligible to retire or anything like that. Rather when she files a motion. Something not mentioned in the opinion is that she may file a motion but the plan does not have to pay her since this is not ERISA. Her former husband must pay her the share she entitled to. Complicated since tax issues, etc.
Q		IRMO Behrens (1982) 137 Cal.App.3rd 562. In reference to retirement. The profit share plan should be valued at time of Date of Separation. Later more money put in by him after Date of Separation and that should be his Separate Property. Must do accounting. Muir Cited case.
Q		Regents of UC v. Benford (2005) 128 Cal.App.4th 867. Family Code 2610 not apply when non-employee spouse dies before property divided in retirement plan. Non-employee spouse predeceasing employee cannot bequeath the Community Property interest in retirement plan.
Q		Dunkin v. CIR (2005) 124 T.C. 10. payments made pursuant to Gillmore order are deductible by payor. Like Spousal Support – key case is Poe v. Seaborn (1930) 282 US 101 that under Community Property law each taxpayer spouse owned an undivided half interest in the income earned by each spouse during the Marriage and was liable for income tax on that half.
Q		IRMO Stenquist (1978) 21 Cal. 3rd 779 – on disability pension. Only the excess of the "disability" pension rights over the alternative "retirement" pension represented additional compensation to husband's disability; the balance of the pension rights acquired during Marriage are Community Property.
Q		IRMO Higinbotham (1988) 203 Cal.App.3^rd 322, 332-333 – CHP safety retirement plan with disability. "If a spouse elects to receive a disability penson when he or she is qualified for a retirement benefit based on longevity of service, the pension is a Community Property asset except for (1) …. (2) that portion which, by virtue of its disability status, exceeds the amount of the longevity benefit." The Alternate Payee is entitled to a Community Property interest in the pension on what it would have been if there were not disability. Any extra money because of the disability is Separate Property of Participant.
Q – attorney fees		Attorney fees can be awarded in QDRO litigation against plan, but employees account can be charged IRMO Olivarez (1986) 188 Cal.App.3rd 336. Also ERISA employees entitled to a reasonable attorney fee "if they succeed on any significant issue in litigation" Smith v. CMTA-IAM pension Trust (9^th Circuit 1984) 746 F2d 587
Qa		Melton: Enhanced future retirement benefits- IRMO Melton (1994) 28 Cal.App.4th 931. Stipulated judgment provided he would receive one half the value of a fixed pension benefit and specified the value equaled a monthly amount of $119. when husband began to receive his monthly pension benefit, the value of the benefit was significantly higher than it had been estimated to be at the time the stipulated judgment was entered. The appeals court concluded the amount constituting the difference between the actual benefit value and the lower estimated benefit value had not been divided in the stipulated judgment and thus constituted an omitted asset to be divided by the court. Ybj8
QDRO		Williams v. Board of Trustees of ILA 388 F.Supp2d 1353 (SD Florida 2005) filed 9-15-05. QDRO in place. There is another benefit that former husband never signed beneficiary designation for. She gets only the QDRO. He never signed and no detrimental reliance by her.
QDRO		University of California v. Benford (2005) 128 Cal.App.4th 867, H is professor and he and W start divorce. During divorce W dies and left in will her retirement interest in H plan to her kids. QDRO law not apply to UC government agency. She died before QDRO done or divorce over. Her heirs out of luck.
QDRO		Files v. ExxonMobil Pension Plan 3 Cir.No. 04-2390. H retirement plan in judgment and divided but not a QDRO. He dies and she can do Nunc Pro Tunc QDRO.
QDRO		IRMO Smith (2007) 148 Cal.App.4th 1115 Court order requiring husband to pay wife percentage of disability payments and participate in military SBP is not abuse of discretion. This was ordered before he retired. Court has power to order military pay that has not yet been waived. Implies that after waiver made the court can't make orders on making the disability pay part of military retired pay. Also court can order SBP to be done even though a new wife will be frozen out.
QDRO		Unicare life insurance v Phanor and Pamphile (2007) 472 F.2d.Supp.2d 8 filed1-30-07 Mass case. Civil action 05-11355-JLT – dissolution filed Automatic Temporary Restraining Orders in Mass also. Husband puts girl friend on his ERISA life insurance and dies. Can she get the money? She argues that ERISA preempts state laws since it is federal. Court says it is not a QDRO (inference is if was a QDRO it would go to girlfriend). Not have the requirements of a QDRO like name of each plan applies to, etc. He changing girlfriend to beneficiary is not a QDRO (apparently need QDRO for this type life insurance). Any money girlfriend did get is in constructive trust for wife in this case.
QDRO		IRMO Gray (2007) 155 Cal.App.4th 504 filed 8-28-07. Apportionment of pension per "time rule" is reversed where ex-spouses had agreed that court would retain jurisdiction over a later in kind division. Dissolution judgment that reserved on pension plan that would be divided as per the "Brown formula". This pension IBEW not strictly based on years of service but rather how much put in and hours employed. Phrase "Brown Formula" is not necessarily for time formula. Court has discretion to divide it equitably. Brown case not really say to use time formula. Court must exercise discretion to make fair division.
QDRO		Gillmore rights: Even if elect Gillmore it forfeits future benefits except for COLA adjustment in cost of living, etc. and any other benefits she would have been entitled to if Participant had retired on date Alternate Payee choose to exercise her Gillmore rights. In re Marriage of Scott (1984) 156 Cal.App.3d 251, 254-255 says she does not give up COLA benefits. In re Marriage of Gillmore (1981) 29 Cal.3d 418 – if Gillmore election then Alternate Payee is locked out from future enhancements except for COLA adjustments probably. Ybj173
QDRO		Marriage of Cooper (2008) 160 Cal.App.4th 574 filed 2-28-08. Because Community Property including retirement benefits must be divided equally by the parties the court errs in awarding the ex-wife the entire retirement survivorship benefit. CalPERS plan. He have 32 years in. He marry late when just a few years left. He retire and name her as irrevocable beneficiary. Now divorce time. The Community Property share is only 12% but she gets entire survivor interest of 100%. CalPERS law is the beneficiary designation stands unless he gets the entire interest in the plan. She does have a small Community Property interest. Court of appeals rules court must order him to buy her out, which he wanted to do. Otherwise it is not an equal division of the Community Property since she could get the entire 100% survivorship benefit. She gets a windfall otherwise. He can name a new beneficiary of his interest when he gets the entire interest just to him. Good case on limiting survivorship benefits on a short marriage when he retires and she otherwise gets all. It was not a transmutation here.
QDRO		Hamilton v. Washington State Plumbing (2006) 433 F.36 1091 1-10-06 - A surviving spouse cannot be divested of right to survivor benefits unless QDRO designates former spouse as Alternate Payee. QDRO cannot designate employee-spouse's children as Alternate Payee of survivor benefits. – dissolution judgment says dad leave kids as beneficiaries on his pension in lieu of life insurance. He marries again and names new wife on the plan. He dies. New wife gets all. The judgment leaving to kids was not a QDRO. Even if the judgment was a QDRO it would not be effective since QPSA just applies to former or current spouse and not the children.
QDRO		REVERSED BY CAL SUPREME COURT: In re Marriage of Sonne 164 Cal.App.4th 1331 (2008) husband has CalPERS plan. Previous wife cash out and he pay back in what she took out. Two issues: 1 He repurchased the service credits that the previous wife took out. He did it during the time of his new marriage. Presumption is that purchases made during marriage are Community Property. The repurchase of service credits involved commingling of Separate Property and Community Property. This is because he used Community Property income to pay service credits from before marriage Separate Property. The service credits had a value of about ten times their cost in the benefits from the retirement. However husband had no expert evidence on this. Consequently wife just repays the service credits that went in and not have to pay for the extra benefit from the additional retirement money. She gains in getting the extra benefit. 2 Community Property had a 40 percent interest (20 percent her Separate Property) in the CalPERS pension payments. However the entire survivors benefit was awarded to her. This was error. A trust must be set up that when she gets the survivors benefit she keeps only 20 percent and the other 80 percent goes into a trust for the other heirs of husband. 3-1-10 Cal Supreme Court reversed this Sonne. Filed 2-22-10

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Put caption of case above and use 28 line pleading paper.

NOTICE OF ADVERSE CLAIM TO EMPLOYEE RETIREMENT, DEATH, BENEFIT OR SAVINGS PLAN AS PER FAMILY CODE SECTION 755(b)

Section 34 TO: The administrator of the plan at ____________________ (name of plan)

As per Family Code section 755 (b) this is notice that the spouse or former spouse of the below mentioned employee or account holder claims to be entitled to the payment or refund or some part thereof of any interest held by you for the employee or account holder. You should be aware that California Family Code section 755 and Family Code section 80 give a very broad definition to what is included in employee retirement, death, benefit or savings plan (it includes, but is not limited to, stock option, bonus, vacation pay, profit sharing and similar plans of deferred or fringe benefit compensation. It does not mater if it is qualified under ERISA or not). If you are even thinking about letting the employee change beneficiary designation, withdraw, borrow against or transfer funds please fax this to your attorney first. The name of the employee or account holder is: _______________________. The Social Security number of the employee is: _______________________

Do not do any of the following to anyone with the name of the above with the Social Security number of the above:

1) Pay any monies to the above or transfer any monies without court order, and/or;

2) Transfer monies or property from one deferred compensation account to another, and/or;

3) Change beneficiary designation on any interest, and/or;

4) Borrow against any interest.

Your name: ___________

Dated: ___________

Attach Proof of service

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Put caption for this above and use 28 line pleading paper..

DEMAND FOR INFORMATION ON EMPLOYEE BENEFIT PLAN AS PER FAMILY CODE SECTION 2062 (c)

Section 35 To: ______________________

Please take notice that we demand that you provide the below requested information on any employee benefit plan that you may have an interest in as per Family Code section 2062(c).

Family Code section 2062 (c) states as follows: "To facilitate identification and service, the employee spouse shall furnish to the nonemployee spouse within 30 days after written request, as to each employee benefit plan covering the employee, the name of the plan, the name, title, address and telephone number of the plan's trustee, administrator, or agent for service of process. If necessary, the employee shall obtain the information from the plan or plan sponsor."

As per the above section we demand you furnish the following: Name of any and all employee benefit plans covering you, the name of the plans, the name, title, address and telephone number of the Plan's trustee, administrator, or agent for service of process. If necessary you shall obtain the information from the plan or plan sponsor. This must be done within 35 days from the Proof of service date on this notice. Please notice that the Family Code section 2062 (c) uses the phrase "shall" in reference to providing the information. This means it is mandatory that it be provided (see Family Code §12).

If we have to do a motion we will ask for both attorney fees and sanctions for the extra effort we did on this case. Even if compliance is done before the motion date we will leave it on calendar for attorney fees and/or sanctions.

I hope we did not come on too strong here. We do not mean to infer that you are unethical or would not do what is required by law. This is for clarification.

Your name: _____________

Dated: _________

Attach a Proof of service

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This is it for right now.

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We will add to these in the future to benefit our clients and members of the public. This web site is always under further construction.

NOTE: This office does QDRO type retirement plans as part of the divorce case itself or on a later modification where there are other issues involved (e.g., property, custody, visitation, support, etc.). If you know of anyone contemplating a divorce, going thru a divorce or a past divorce with other issues in addition to the QDRO then have them contact this office. If just a QDRO alone call Rick Muir in Ontario, CA at 909-391-4413. If more issues than just a QDRO, or if you think the other side may cross file for a modification, then contact this office at 951-247-1977.
DANGER ALERT: If you file for a QDRO after the divorce is final the other side may get upset and cross file for a modification of support, property or something else. This is one of the main reasons for getting the QDRO done during the divorce and not after.

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BASICS OF LEGAL RESEARCH IN FAMILY LAW

QDRO FACT SHEET

RETIREMENT PLAN LINGO AND BENCHMARK AGES

MAKING RETIREMENT PLANS EASIER TO UNDERSTAND

MYTHS AND FACTS ABOUT PENSIONS IN DIVORCE

GENERAL INFORMATION ON RETIREMENT PLANS

SOCIAL SECURITY INFORMATION FOR FAMILY ATTORNEYS, FACT SHEET

WHY WE WANT A QDRO WHEN DOING THE CASE NOW AND NOT LATER

COMPARISON OF CalSTRS RETIREMENT DIVISION

TYPES OF RETIREMENT PLANS

REQUEST FOR INTERPRETATION LETTER FOR ENCLOSED PROPOSED QDRO

PROPOSED RETIREMENT ORDER TO ATTORNEY FOR OTHER SIDE

PRINCIPAL FEATURES OF 401(k) LUMP SUM DISTRIBUTIONS WITH AND WITHOUT A QDRO

In-Service Distributions of 401(k) Plans

DANGER SIGNALS IN RETIREMENT PLANS

LACHES ON QDRO ORDERS

From Marriage of Krempin (1999) 70 Cal.App.4th 1008, 1021

Yes, can have laches defense in one party not get QDRO until long after retirement started. From IRMO Krempin (1999) 70 Cal.App.4th 1008, 1021

QDRO