What is the easiest way to do a QDRO?

Just call the plan administrator and ask them for their model QDRO. At the very end of this blog is a model QDRO. It could also be called a QDRO template, sample, or form.

If you are in the initial stages of getting a divorce you should immediately contact your soon-to-be ex-spouse’s retirement plan administrators and ask them for their QDRO “model order” or boilerplate template. Your administrator or their attorney will file a Notice of Appearance of Employee Benefit Plan, FL-374. This let’s the court know that your ex-spouses retirement plan is aware of the litigation and is ready to participate in your divorce.

What is a Qualified Domestic Relation Order (QDRO)?

It sounds much more complex than it really is. A “qualified domestic relation order” (QDRO) is simply a court order that says for example: “Jane Johnson, as the ex-wife of Joe Johnson is to receive a portion of his retirement benefits.” Of course I have simplified it here for learning purposes. A QDRO includes the specific information and meets certain other requirements to ensure that the ex-spouse receives what they are entitled to.

What information must a domestic relations order contain to qualify as a QDRO?

QDROs must contain the following information:

• The name and last known mailing address of the participant and each alternate payee
• The name of each plan to which the order applies
• The dollar amount or percentage (or the method of determining the amount or percentage) of the benefit to be paid to the alternate payee
• The number of payments or time period to which the order applies

Are there other requirements that a domestic relations order must meet to be a QDRO?

There are certain provisions that a QDRO must not contain:

• The order must not require a plan to provide an alternate payee or participant with any type or form of benefit, or any option, not otherwise provided under the plan
• The order must not require a plan to provide for increased benefits (determined on the basis of actuarial value)
• The order must not require a plan to pay benefits to an alternate payee that are required to be paid to another alternate payee under another order previously determined to be a QDRO
• The order must not require a plan to pay benefits to an alternate payee in the form of a qualified joint and survivor annuity for the lives of the alternate payee and his or her subsequent spouse

May a QDRO be part of the divorce decree or property settlement?

There is nothing in ERISA or the Code that requires that a QDRO (that is, the provisions that create or recognize an alternate payee’s interest in a participant’s retirement benefits) be issued as a separate judgment, decree, or order. Accordingly, a QDRO may be included as part of a divorce decree or court-approved property settlement, or issued as a separate order, without affecting its qualified status. The order must satisfy the requirements described above to be a QDRO.

Can a QDRO cover more than one plan?

A QDRO can assign rights to retirement benefits under more than one retirement plan of the same or different employers as long as each plan and the assignment of benefit rights under each plan are clearly specified.

Must all QDROs have the same provisions?

Although every QDRO must contain certain provisions, such as the names and addresses of the participant and alternate payee(s) and the name of the plan(s), the specific content of the rest of the QDRO will depend on the type of retirement plan, the nature of the participant’s retirement benefits, the purposes behind issuing the order, and the intent of the drafting parties.

Who determines whether an order is a QDRO?

Under Federal law, the administrator of the retirement plan that provides the benefits affected by an order is the individual (or entity) initially responsible for determining whether a domestic relations order is a QDRO. Plan administrators have specific responsibilities and duties with respect to determining whether a domestic relations order is a QDRO. Plan administrators, as plan fiduciaries, are required to discharge their duties prudently and solely in the interest of plan participants and beneficiaries. Among other things, plans must establish reasonable procedures to determine the qualified status of domestic relations orders and to administer distributions pursuant to qualified orders. Administrators are required to follow the plan’s procedures for making QDRO determinations. Administrators also are required to furnish notice to participants and alternate payees of the receipt of a domestic relations order and to furnish a copy of the plan’s procedures for determining the qualified status of such orders.

Who is the administrator of the plan?

The administrator of an employee benefit plan is the individual or entity specifically designated in the plan documents as the administrator. If the plan documents do not designate an administrator, the administrator is the employer maintaining the plan, or, in the case of a plan maintained by more than one employer, the association, committee, joint board of trustees, or similar group representing the parties maintaining the plan. The name, address, and phone number of the plan administrator is required to be included in the plan’s summary plan description. The summary plan description is a document that the administrator is required to furnish to each participant and to each beneficiary receiving benefits. It summarizes the rights and benefits of participants and beneficiaries and the obligations of the plan.

Here is a model order I recently did:

Art Smith, Self-Represented

432 Main Street

Los Angeles, CA 90012

(310) 944-2055

Petitioner, In Pro Per

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES, NORTH VALLEY DISTRICT

PARTIES TO THE ORDER

1. The Operating Engineers Pension Trust (“Trust”) is administered by the Board of Trustees of the Trust (“Trustees”) whose address is 100 East Courson Street, Pasadena, California 91103. The Trust is an “employee pension benefit plan” as term is defined in 29 U.S.C. § 1002(2)(A).

2. Petitioner Andrew M. Smith (“Participant”) is a participant in the Trust and was born on January 8, 1947, and his address is: 432 Main Street, Los Angeles, CA 90012.

3. Respondent Mary Jane Smith (“Alternate Payee Spouse”) has a community property interest in the pension benefits of the Participant in the Trust arising from the marriage of the Alternate Payee Spouse to the Participant and was born on May 3, 1953 and her address is: 7777 Grove St., Sunland, CA 91042.

DEFINITION OF COMMUNITY INTEREST OF ALTERNATE PAYEE SPOUSE

4. The community property interest of the Alternate Payee Spouse (“Community Interest”) shall mean the right of the Alternate Payee Spouse to receive credits in and benefits from the Trust, as more specifically set forth herein, based upon one-half of any Prior Service Credits and Pension Credits accumulated by the Participant during the period of the marriage date: October 27, 1962 through the separation date of May 27, 2006.

ASSIGNMENT OF BENEFITS TO ALTERNATE PAYEE SPOUSE

5. The Trust shall divide the Participants Prior Service Credits and Pension Credits and allocate part of such credits to the Alternate Payee Spouse and assign to the Alternate Payee Spouse the right to receive pension benefits based upon the Community Interest. This assignment shall include all of the Community Interest withheld by the Trust from the Participant’s pension, during the period on which the claim of the Alternate Payee Spouse was reviewed by the trust. The participant shall have no right to receive that portion of the pension benefits assigned by this order to the Alternate Payee Spouse except in the event that the Alternate Payee Spouse and each Alternate Payee named in this order have died or upon further order of this court.

6. The Alternate Payee Spouse shall have no right to receive pension benefits from the Trust except as specifically required by this order. All payment of pension benefits to the Alternate Payee Spouse shall cease upon the death of the participant except for the death benefits or benefits payable to a surviving spouse required under Paragraph 11 of this order.

COMMENCEMENT OF BENEFITS

7. Payment of pension benefits to the Alternate Payee Spouse shall begin on the first month after approval by the Order, after this order has been entered by the court, and after the Alternate Payee Spouse has made a written application for the benefits from the trust pursuant to this order, when the earliest of the following events occurs: (a) the Participant has retired and begun receiving pension benefits form the Trust; (b) the Participant is eligible for a Pro-Rata Pension from the Trust (whether or not the Participant has retired and made application for,, or begun receiving, pension benefits from the Trust); (c) the Participant dies before retiring or after retiring, but before pension payments to the Participant commence, if the Participant’s Service Credits are vested in accord with Article III, Section 3, of the Operating Engineers Pension Plan (“Plan”).

FORM OF BENEFIT PAYMENTS

8. If the Participant has begun receiving pension benefits when this order is approved by the Trustees, the Alternate Payee Spouse shall receive pension benefits in the form that such benefits are being paid to the Participant.

9. If the Participant has not yet begun receiving pension benefits when this order is approved by the Trustees, then the form of benefits payable to the Alternate Payee Spouse shall be selected as follows:

a. If the Alternate Payee Spouse has been married for not less than one year to the Participant, when her application for benefits is made, benefits shall be paid to the Alternate Payee Spouse in the form of the Husband-and-Wife-Pension unless that form is rejected in the manner prescribed by Article VII, Section 2, of the Plan. The Alternate Payee Spouse. shall be deemed the spouse of the Participant to the extent of the Community Interest for purposes of the rejection specified in Article VII, Section 2, of the Plan.

b. If the Alternate Payee Spouse has not been married to the Participant for at least one year, when her application for benefits is made, then pension benefits shall be paid to the Alternate Payee Spouse in the form of a single life annuity using the Participant’s life as the measuring life.

c. If the Alternate Payee Spouse begins receiving pension benefits pursuant to this order before the Participant attains age 62, the Alternate Payee Spouse’s monthly amount shall not exceed the amount actuarially equivalent at the Participant’s current age to the amount the Participant would have received at age 62. For this purpose, the actuarial equivalent reduction shall be one half of one percent (.5%) for each month by which the Participant’s age precedes age 62. This reduction shall be applied prior to any reduction for the Husband-and-Wife Pension form.

PAYMENTS AFTER PARTICPANT’S DEATH

10. The Alternate Payee Spouse shall be deemed to be the surviving spouse of the Participant, to the extent of the Community Interest, and any benefit payable to a surviving spouse under Article VII or Article IX of the Plan following the Participant’s death, shall be paid, to the extent of the Community Interest, to the Alternate Payee Spouse in accord with such provisions of the Plan and this order.

PAYMENTS AFTER DEATH OF ALTERNATE PAYEE SPOUSE

11. In the event the Alternate Payee Spouse dies before the Participant, any further pension benefits which would have been payable to the Alternate Payee Spouse from the Participant’s pension, had the Alternate Payee Spouse lived until the Participant’s death, shall be paid to the person or persons set forth below in the proportion stated:

NAME:

CURRENT ADDRESS:

DATE OF BIRTH:

Relationship to Participant:

Percentage of Benefits:

NAME:

CURRENT ADDRESS:

DATE OF BIRTH:

Relationship to Participant:

Percentage of Benefits:

Each of the persons named above is an Alternate Payee under this Order and qualifies as such pursuant to Section 1056 (d) (3) (K) of Title 29 of the United States Code as the spouse, former spouse,, child or other dependent of the Participant.

12. If an Alternate Payee predeceases the Alternate Payee Spouse, his or her share shall be divided equally among the surviving Alternate Payees. If the Alternate Payee Spouse and each Alternate Payee named in this order predecease the Participant, pension benefits which would otherwise be payable to the Alternate Payee Spouse or any Alternate Payee shall be paid to the Participant.

13. If the Alternate Payee Spouse is receiving, or entitled to receive, death benefits pursuant to this order and Article VII of the Plan, the balance of any such benefits, to the extent of the Community Interest, which remain payable after the death of the Alternate Payee spouse shall be paid to the Alternate Payee or Alternate Payees named in paragraph 12 above for the remainder of such payments. If an Alternate Payee dies before receiving his or her entire share of the remaining payments, then his or her share shall be divided equally among the surviving Alternate Payees. If no Alternate Payee has been named in this order, or if no Alternate Payee survives until the balance of such benefits had been fully paid, then any remaining death benefits payable pursuant to this order and Article VII of the Plan, following the death of the Alternate Payee

GENERAL PROVISIONS

14. This order is intended to be a qualified domestic relations order and shall affect only the Community Interest of the Alternate Payee Spouse. All of the remaining interest in the Participant’s pension benefits or death benefits shall be paid in accord with the rules of the Plan without regard to this order.

16 Except as expressly provided in this order, the interest in pension benefits or death benefits of the Participant, the Alternate Payee Spouse, and each Alternate Payee named in this order shall not be assigned or alienated, and all rights with respect to pension benefits or death benefits shall exist and shall terminate in accordance with the rules of the Plan.

17 Nothing herein shall be construed to require the Trust to provide the following:

a. any type or form of benefit, or any option, not otherwise provided under the plan;

b. increased benefits (determined on the basis of actuarial value), over that which would otherwise be payable under the Plan in the absence of this order; or

c. benefits to an Alternate Payee Spouse or an Alternate Payee which are required to be paid to another alternate payee under another order previously determined under this Plan to be a qualified domestic relations order as that term is defined in Section 1056 (d) (3) (B) of Title 29 of the United States Code.

18 In the event that the Trust is terminated in whole or in part pursuant to its Plan or pursuant to proceedings instituted by the Pension Benefit Guaranty Corporation or other federal agency, the interests of the Participant, the Alternate Payee Spouse and each Alternate Payee shall be disposed of in such manner as required by the Plan and by federal law.

19 Notwithstanding any other provision of this order, in the event that the Participant, the Alternate Payee Spouse, any Alternate Payee or another person claiming to derive rights to benefits from any such person, shall make a claim which the Trustees determine to be inconsistent with the terms of this order or the terms of the Plan, the Trustees may forthwith cease payments to all or any persons otherwise entitled thereto under this order pending resolution of said claim and may take such further action is permitted under the rules of the Plan and applicable federal law, including Section 1056 (d) of Title 29 of the United States Code.

20 This court reserves jurisdiction to make all other necessary and proper orders required to carry out the terms of this order.

Approved as to form and content:

Date: _____________________ __________________________________

Participant

Andrew Smith, pro per

Date: _____________________ __________________________________

Alternate Payee Spouse

Mary Jane Smith, pro per

Date: _____________________ ___________________________________

JUDGE OF THE SUPERIOR COURT