Defined Contribution Plans - QDRO Helper | California QDRO Attorneys

TOP 3 QDRO MISTAKES & HOW TO AVOID THEM

by Madeline Hill | Mar 5, 2014 | Defined Benefit Plans, Defined Contribution Plans, General QDRO Info

QDRO MISTAKE 1: WRONG METHOD OF DIVISION FOR RETIREMENT PLAN TYPE

The language in the settlement agreement and QDRO should be applicable to the type of retirement benefits being divided. There are two main types of retirement plans, namely 1) Defined Contribution Plans and 2) Defined Benefit Plans. 401(k), 403(b), and 457 deferred compensation plans are all types of “Defined Contribution Plans.” The benefits under defined contribution plans are based upon actual monetary contributions to the plan, and the investment performance of said contributions. Whereas, the benefits under defined benefit plans, commonly known as “traditional” pension plans, are paid as a monthly annuity based on a formula tied to the plan participant’s years of service credit, final salary, and age at retirement. Defined Benefit plan benefits are not solely based on monetary contributions.

The language dividing defined contribution plans should (and conversely, the language dividing defined benefit plans should not):

Refer to the plan participant’s total account balance
Express the former spouse’s (alternate payee’s) interest as either a dollar amount or percentage of the account, as of a particular valuation date (usually the parties’ date of separation)
Address whether the alternate payee’s share should or should not be adjusted for interest or investment earnings
Provide for a new account to be created in the Alternate Payee’s name
Provide the option of an immediate distribution or rollover of Alternate Payee’s share

The language dividing defined contribution plans should not (and conversely, the language dividing defined benefit plans should):

Reference the Time Rule Formula or coverture formula
Reference the participant’s “accrued benefit”
Provide for a “monthly” benefit
Reference COLAs or early retirement subsidies
Address survivor benefits
Delay the alternate payee’s benefit commencement until the participant is eligible for retirement or actually retires

QDRO MISTAKE 2: QDRO PREPARATION TIMING

Ideally, the QDRO should be prepared as soon as the parties have reached a basic settlement regarding the division of the retirement asset. This will allow the QDRO to be filed concurrently with the Judgment of Dissolution, or even be incorporated into the Judgment. Otherwise, the QDRO should be prepared as soon to the time of divorce as possible. If a QDRO is not filed and any of the following events happen, the alternate payee may entirely lose his/her benefits:

Participant terminates employment and takes a full plan distribution under a defined contribution plan
Participant retires and begins commencement of benefits without notifying the alternate payee
Participant dies without a QDRO in place securing survivor benefits for the alternate payee
Participant takes a loan out which significantly reduces the account balance available for division pursuant to a QDRO

For more consequences related to QDRO timing, click here.

Another problem that is becoming more and more common when parties wait to draft the QDRO is that plans sometimes undergo a change in plan administrator. When a new plan administrator takes over, they will usually not perform any calculations regarding benefits accrued prior to their plan administration date. For example, if the parties’ date of separation was in 2005, but the plan administrator changed in 2007, the plan administrator will reject a QDRO with a valuation date in 2005 because they do not have records prior to 2007. This can present significant problems if the parties do not have their own plan statements for the time period from the date of marriage to date of separation; and will increase the expense involved in the QDRO as the parties may need to retain an actuary or accountant to perform a calculation to determine the community property interest in the benefits.

QDRO MISTAKE 3: BLINDLY TRUSTING THE MODEL QDRO

Some parties, or family law attorneys, will draft a QDRO by taking the plan’s “model” or “sample” QDRO and inserting the parties’ names with little or no other revisions. This should never be done unless the parties and/or attorneys clearly understand every single provision within the model QDRO, and are aware of the possible alternate provisions, based on the plan’s terms and the California law regarding marital property rights.

Most model QDROs are drafted to favor the plan participant; they are not drafted to divide the benefits as equally as possible. Model orders can heavily favor the participant with regard to issues like investment earnings and losses, and survivor benefits. Further, the model QDRO may have been drafted in a different state than where the divorce took place, which can have a huge effect on the division of benefits. For example, in California, the community property interest stops accruing on the parties’ date of separation; however, other states utilize other dates, such as the date of divorce filing, or the date of the entry of Judgment of Dissolution, both which may be years after the parties’ date of separation. Utilizing a model QDRO from another jurisdiction could have the effect of awarding the alternate payee far more benefits than he/she would legally be entitled to in California. Further, many individuals who draft their own QDROs are not able to format the QDRO correctly to be accepted by the court that handled their divorce. In California, QDROs must be signed by both parties and the judge; however, many model QDROs only leave space for the judge’s signature.

DO YOU NEED HELP WITH A QDRO?

If you have questions about the division of retirement benefits due to your California divorce or legal separation, or if you would like to get started on your Qualified Domestic Relations Order today, please call QDRO Helper at (619) 786-QDRO / (619) 786-7376. You can also request a new client package by sending an email to info@qdrohelper.com or by visiting the Get Started page. We proudly assist clients throughout the United States as long as the divorce or legal separation took place in California.

DISCLAIMER: ADVERTISEMENT. Any legal information on this blog has been prepared by QDRO Helper for informational purposes only and is not legal advice and does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. The information provided is intended to comply with Rule 1-400 of the California Rules of Professional Conduct. Any links in this website are included only to help you locate other internet resources that may be of interest to you; QDRO Helper is not associated with any such links. The transmission and receipt of information contained on this website via the Internet or e-mail or in any other manner does not constitute or create an attorney-client relationship, and you should not act on the information contained herein without obtaining legal counsel. QDRO Helper has a strict policy of entering into attorney-client relationships with its clients only though the execution of a written fee agreement acknowledged by QDRO Helper. As such, you should not send QDRO Helper any confidential information in response to this web page until such a relationship is established and expressly acknowledged by QDRO Helper.

QDROs & Loans: How Loans on Retirement Accounts Affect Divorce

by Madeline Hill | Mar 1, 2013 | Defined Contribution Plans, General QDRO Info

RETIREMENT PLAN LOANS & DIVORCE

Participants in defined contribution retirement plans often have the option of taking out loans. These loans are usually paid back via paycheck deductions over a period of years and these loans usually cannot be assigned to any other party for repayment. If a defined contribution plan, such as a 401(k), is divided during a divorce or legal separation, it is critical to address any outstanding loans.

HOW TO FIND OUT IF THERE IS AN OUTSTANDING LOAN

You should first look for an outstanding loan balance on the account statement. Sometimes there will be a clearly labeled section for loans. Other statements can be a bit more difficult to read, for example a statement may show an “account balance” of $25,000 but list the “total account value” at $35,000 elsewhere, which would indicate a $10,000 outstanding loan. Plan administrator’s usually consider outstanding loans as assets which should be added to the value of the account to determine the account’s true value. The participant in the plan is also required to make full disclosure of assets and obligations during a divorce and the marital settlement agreement should clearly address outstanding loans. If the participant represents that there are no loans, the settlement agreement should include a statement that the party “represents and warrants that he/she has not taken any loans or withdrawals from the [insert plan name] account, and he/she shall be prohibited from taking any loans or withdrawals until a QDRO is implemented by the plan, creating a separate interest for [the other party].” If a withdrawal or loan, in violation of the automatic temporary restraining order, is feared by the non-employee spouse a notice of adverse interest to the plan, or a joinder, will often cause a hold to be placed on the participant’s account pending receipt of a QDRO by the plan administrator.

IS A LOAN SEPARATE PROPERTY OR COMMUNITY PROPERTY?

If there is an outstanding loan, it must be determined whether the loan is community or separate property. Parties sometimes view any loan taken out from the date of marriage through the date of separation as community property; other parties will agree to look at what the loan funds were used for to determine if the loan is community property or separate property.

Separate Property Loans in QDROs

If a loan is determined to be the participant’s separate property, then the QDRO needs to be drafted carefully to award the correct amount to the former spouse (or “alternate payee”). For example, if a QDRO awards 50% of the participant’s account balance to the alternate payee as of the parties’ date of separation, but does not address loans, the alternate payee’s share could unintentionally be reduced by the value of the outstanding loan. By way of an example, if the account balance at the date of separation was $50,000, but there was an outstanding loan of $10,000, which would bring the total account value to $60,000, then the alternate payee may accidentally be awarded $25,000, instead of the $30,000 to which she is entitled due to a separate property loan. To ensure that the alternate payee’s share is not reduced by the other party’s separate property loan, the QDRO must include the loan balance in the account balance prior to calculating the 50% award to the alternate payee.

Community Property Loans in QDROs

Since it is usually not possible to make an alternate payee responsible for loan repayment under a QDRO, if a loan is determined to be community property, the QDRO must be carefully drafted to ensure that the alternate payee’s share of the account is reduced by an equal portion of the outstanding community property loan.

POTENTIAL FOR QDRO REJECTION DUE TO OUTSTANDING PLAN LOANS

Most retirement plans will not distribute funds in excess of the outstanding loan. If the parties have agreed to equalize assets and award the alternate payee 100% of the participant’s account, they should determine exactly what the dollar amount of the distribution will be under the terms of the plan before filing the QDRO. For example, if there is $30,000 in an account, plus a $5,000 outstanding loan, the plan will likely only distribute a maximum of $25,000 to the alternate payee. Alternatively, if a QDRO awards the alternate payee $30,000 in the same example, the QDRO will likely be rejected by the plan because the maximum that can be distributed under the plan’s terms would be $25,000.

QUESTIONS ABOUT LOANS AND QDROs?

If you have questions about the division of defined contribution plan accounts due to your California dissolution of marriage or legal separation please call QDRO Helper at (619) 786-QDRO / (619) 786-7376. You can also request a new client package by sending an email to info@qdrohelper.com.

DISCLAIMER: ADVERTISEMENT. Any legal information on this blog has been prepared by QDRO Helper for informational purposes only and is not legal advice and does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. The information provided is intended to comply with Rule 1-400 of the California Rules of Professional Conduct. Any links in this website are included only to help you locate other Internet resources that may be of interest to you; QDRO Helper is not associated with any such links. The transmission and receipt of information contained on this website via the Internet or e-mail or in any other manner does not constitute or create an attorney-client relationship, and you should not act on the information contained herein without obtaining legal counsel. QDRO Helper has a strict policy of entering into attorney-client relationships with its clients only though the execution of a written fee agreement acknowledged by QDRO Helper. As such, you should not send QDRO Helper any confidential information in response to this web page until such a relationship is established and expressly acknowledged by QDRO Helper.

Valuation Dates for QDROS: A Common Mistake in Marital Settlement Agreements

by Madeline Hill | Jan 31, 2013 | Defined Contribution Plans, General QDRO Info

WHAT IS A “VALUATION DATE” FOR QDRO PURPOSES?

A QDRO (Qualified Domestic Relations Order) is a court order that divides retirement benefits due to divorce. The valuation date for QDRO purposes is the date as of which the funds are to be divided. For example, in a QDRO for a 401(k) plan awarding 50% to the non-employee spouse with a valuation date of September 30, 2011, the plan will look at the Participant’s account balance on September 30, 2011 multiply the account by 50% in order to determine the non-employee spouse’s share. The plan administrator will not look at the current account balance at the time of actual division of the account, but will look at the account balance as of the valuation date.

VALUATION DATE PROBLEMS IN QDROS

Unfortunately, an issue which often makes the QDRO process more difficult is the lack of a valuation date in the parties’ Marital Settlement Agreement (“MSA”). A missing valuation date can lead to litigation at a later date. Your MSA should always state the date as of which the benefits are to be divided, or reference a date which is known and agreed to by the parties, i.e. “Wife is awarded 50% of the account balance as of the date of separation” or “Husband is awarded 50% of the account as of December 15, 2012.” Absent a specified date, one party may argue for the date of separation to be used, while another party may argue that the date of dissolution should be used. As can be imagined, the value of retirement benefits could vary greatly depending on the valuation date chosen, particularly since the date of separation and the date of dissolution can be more than a year apart. Other potential valuation dates are the date that a divorce petition is filed, the date the MSA was signed.

Typically, in California, the parties’ date of separation is viewed as the date that the community interest in the asset stops accruing. [In re Marriage of Bergman, 168 Cal. App. 3d 742 (1985)] However, other states view community property differently. For example, in Arizona, the accrual of community property typically terminates upon the service of the divorce petition on the other party; in Nevada, community property usually terminates upon the date of divorce.

Valuation dates are also an issue because often with QDROs for defined contribution plans, gains and losses are included in the alternate payee’s share from the valuation date to the date that the plan administrator actually segregates the account. Therefore, the further back the valuation date is from the date of account segregation, the greater the potential change in value of the alternate payee’s benefits.

If the parties are awarding the non-employee spouse a flat dollar amount, then the valuation date should be the date of account segregation by the plan administrator and the QDRO should specify that the parties do not intend for any gains or losses to be included in the alternate payee’s award.

Provisions should also be made in the event that the retirement plan only allows certain valuation dates. For example, some plans only allow valuation dates that are the last day of a month, or have valuation dates that can only be days that the New York Stock Exchange allows trading (i.e. excludes weekends or holidays). Ideally, the MSA should provide a valuation date and then also state “or the nearest valuation date under the Plan”.

The best practice is to ensure that the MSA clearly states the valuation date for dividing retirement assets and also allows for variations due to the valuation dates allowed under the terms of the retirement plan.

QUESTIONS ABOUT VALUATION DATES IN QDROS?

If you have questions about valuation dates in QDROs or if you would like to assistance with your MSA language or drafting your QDRO, please call QDRO Helper at 619-786-QDRO (619-786-7376) or email us at info@qdrohelper.com.

DISCLAIMER: ADVERSTISEMENT. Any legal information on this blog has been prepared by QDRO Helper for informational purposes only and is not legal advice and does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. The information provided is intended to comply with Rule 1-400 of the California Rules of Professional Conduct. Any links in this website are included only to help you locate other Internet resources that may be of interest to you; QDRO Helper is not associated with any such links. The transmission and receipt of information contained on this website via the Internet or e-mail or in any other manner does not constitute or create an attorney-client relationship, and you should not act on the information contained herein without obtaining legal counsel. QDRO Helper has a strict policy of entering into attorney-client relationships with its clients only though the execution of a written fee agreement acknowledged by QDRO Helper. As such, you should not send QDRO Helper any confidential information in response to this web page until such a relationship is established and expressly acknowledged by QDRO Helper.

VCERA DROs: Dividing Ventura County Employees’ Retirement Association Benefits in Divorce

by Madeline Hill | Nov 28, 2012 | Defined Contribution Plans, General QDRO Info, VCERA - Ventura County

VCERA & DIVORCE – GENERAL INFORMATION

Employees of Ventura County are members of the Ventura County Employees’ Retirement Association (VCERA). Like other money or assets acquired during marriage, VCERA benefits are subject to division during divorce. The division of these benefits is accomplished by a special court order called a Domestic Relations Order or DRO.

VCERA JOINDER REQUIREMENT

Joinder is a legal process that names a third-party claimant to the parties’ divorce case. In order for VCERA to respond to a DRO, a joinder must be filed and served on the plan. Joinder is the first step in obtaining an Order to divide Ventura County Employees’ Retirement Association benefits. Your divorce attorney may have already filed a joinder for you; however, if needed, QDRO Helper also offers joinder services.

DIVISION OF BENEFITS

Typically, the nonmember spouse is awarded one-half of the community property interest in the retirement benefits. There are two basic methods of division: i) a segregation of account method, where a separate account will be established by VCERA on behalf of the nonmember and ii) a shared method, where the nonmember spouse receives a portion of each payment made to the member. The shared method is the only option that can be utilized if the member has already retired. If the member is not retired, either the segregation method or shared method can be used. Under the segregation method, the nonmember has a variety of distribution options:

he/she may request a refund of contributions and interest (which can be “rolled over” into another qualifying plan), or
he/she can commence receipt of a monthly retirement benefit if eligible, or
he/she may maintain the account by electing a deferred retirement until such time as he/she elects either a refund of contributions and interest or becomes eligible to receive a monthly retirement benefit.

If a member is not vested, then the nonmember spouse can only utilize option 1 above. When the nonmember is paid a refund, the member will have five years to sign a contract that will allow the member to redeposit all contributions withdrawn, plus interest, in order to regain the service credit awarded and paid out to the nonmember spouse. The contract may be satisfied with payroll deductions over the course of five consecutive years (one hundred and thirty consecutive biweekly payments).

NONMEMBER’S DEATH

The nonmember spouse has the right to name a beneficiary, or beneficiaries, for the nonmember’s VCERA benefits. If the nonmember dies before the effective date of retirement, his/her accumulated contributions shall be paid to his/her designated beneficiary.

If the nonmember dies after the effective date of his/her retirement, if the total retirement allowance income received by the nonmember during his/her lifetime was less than his/her accumulated contributions, his/her designated beneficiary shall be paid in one lump-sum the difference between the total contributions and the total retirement allowance income.

QUESTIONS ABOUT VCERA DROs?

If you have questions about the division of VCERA benefits, or if you would like to get started on your Domestic Relations Order today, please call QDRO Helper at (619) 786-QDRO / (619) 786-7376. We proudly serve clients throughout California – no in-office appointments required. You can also view VCERA’s comprehensive divorce booklet here.

DISCLAIMER: Any legal information on this blog has been prepared by QDRO Helper for informational purposes only and should not be construed as legal advice. The material posted on this website is not intended to create, and receipt of it does not constitute, an attorney-client relationship, and readers should not act upon it without seeking professional counsel. Note also that sending an e-mail to QDRO Helper does not create an attorney-client relationship, and none will be formed unless there is an express agreement between the firm and the individual. We strongly advise against sending confidential or privileged information to QDRO Helper until you can establish such a relationship.

DROs for City of San Diego 401k, Deferred Compensation, & Supplemental Pension Savings Plans

by Madeline Hill | Aug 13, 2012 | City of San Diego, Defined Contribution Plans

City of San Diego Retirement Plans

In addition to SDCERS, employees of the City of San Diego may participate in the following retirement plans:

City of San Diego 401(k)
City of San Diego Supplemental Pension Savings Plan (also known as the “SPSP”)
City of San Diego Supplemental Pension Savings Plan Hourly (“SPSP-H”)
City of San Diego Deferred Compensation Plan

Domestic Relations Orders (DROs) are specific court orders that are required in order to divide any of the above City of San Diego retirement plans due to divorce. Below we will outline some basic information about City of San Diego DROs.

Joinder Requirement

All City of San Diego retirement plans require a joinder be filed and served on the plan before benefits can be distributed pursuant to a QDRO. Joinder is a legal process that names a third-party to the divorce case. Joinder is the first step in obtaining an Order to divide City of San Diego benefits, and a separate joinder must be filed for each retirement plan that is going to be divided. QDRO Helper can assist you with Joinders for a low flat fee – please see our pricing page for more information.

Division of Account / Separate Account

Generally, most divorce documents will specify that the former spouse of the City of San Diego employee) will receive ½ of the community interest in the plan. The community interest is usually defined as what was contributed to the plan from the parties’ date of marriage to their date of separation.

The benefits awarded to the former spouse will be placed into a separate account established by the Plan and in the name of the former spouse upon receipt of a valid DRO. The former spouse can leave the funds in the account with the Plan and begin receiving benefits upon the employee’s earliest retirement date, withdraw the funds (and pay the appropriate taxes and penalties), or roll the funds into another retirement account.

Account Information that Must Appear in the DRO

Domestic Relations Orders (DROs) for the City of San Diego 401(k), Deferred Compensation, and the SPSP and SPSP-H plans must specify the account balance as of the date of marriage and the date of separation. In addition to the above, DROs for the SPSP plan must specify what percentage the employee is currently vested with the plan. This information can be obtained from the Plan Administrator as part of the DRO process.

Gains & Losses

Unless the DRO states otherwise, gains and losses from the date of separation to the date that the separation of account or distribution to the former spouse occurs will be included in the award to the Former Spouse.

Death Benefits

If the plan member (the employee) dies before retirement, then the former spouse will be paid his/her share of any and all death benefits payable under the plan. The former spouse’s share will be based on the same division or percentage of benefits awarded to him/her under the DRO.

Need Help?

If you need help with a City of San Diego DRO and/or Joinder, please visit QDRO Helper, or call 619-786-QDRO to get started today!

QDROS for 401(k), 403(b) and 457 Plans

by Madeline Hill | Jun 27, 2012 | Defined Contribution Plans

The two most common types of retirement plans are defined benefit plans and defined contribution plans. Defined contribution plans have an account balance, such as 401(k), 403(b) and 457 plans. Defined benefit plans are commonly known as pension plans and pay a monthly benefit in the future with the amount payable determined at the time of retirement.

This blog will briefly discuss the most common issues involved with dividing defined contributions plans due to divorce. These issues are: defining the community property interest, determining how the plan will treat investment gains and losses on the alternate payee’s portion, and deciding how to treat outstanding loans.

DIVISION OF COMMUNITY PROPERTY INTEREST

Parties to a divorce can agree to transfer any percentage or dollar amount to the non-employee spouse (a.k.a. the “Alternate Payee”). Often, funds from 401(k), 403(b) or 457 plans are used to equalize other marital assets during divorce. However, the most common division is the community interest division. This means that the Alternate Payee will receive one-half of the contributions from the date of marriage through the date of separation. Usually, the plan administrator can calculate this amount; however, in some situations the record keeper for the plan will not have records that date back to the date of marriage. If the record keeper does not have adequate records, then this information will need to be supplied by the parties via old plan statements, or the parties can hire an actuary or accountant to estimate the community property interest, and then can stipulate to the amount to be transferred.

GAINS & LOSSES

Typically, gains and losses (or “earnings”) attributable to the amount assigned to the Alternate Payee are also applied to the amount. However, the parties can come to an agreement where earnings are not awarded on the Alternate Payee’s share. If the parties determine a flat dollar amount to be assigned to the Alternate Payee, gains and losses are usually not included. Gains and losses can make a significant difference in the amount of the benefit awarded to the Alternate Payee, so this issue should be considered seriously by the parties.

PLAN LOANS

Another important issue is the treatment of any loans that are outstanding with the plan as of the date of account division. When a percentage of the account is assigned to the Alternate Payee, including an outstanding loan in the account balance, i.e. adding the amount of the loan back in, will result in a larger portion for the Alternate Payee. Subtracting the outstanding loan from the account balance will reduce the amount paid to the Alternate Payee. Usually, the parties will evaluate when the loan was taken out by the Plan Participant and what the funds were used for to determine if the loan should be considered a community loan (included in the account) or the Participant’s own loan (excluded for the purposes of calculation). It is important to know that loans from retirement plans are not assignable, the Participant must pay the loan back even if loans are included for purposes of division. This also means that if 100% of a plan is being assigned to the Alternate Payee, there must not be any plan loans. If there are any outstanding plan loans, then an amount sufficient to cover the loan must be left in the account.

TIMING & TAX ISSUES

Parties should also be aware of timing and taxation issues for defined contribution plan QDROs. Plans will usually allow an immediate distribution to an Alternate Payee. The Alternate Payee may roll the assigned amount to an IRA, take it in cash, or do some combination of IRA rollover and cash distribution, subject to the terms of the plan. If the Alternate Payee is allowed to leave the funds in the plan, the funds usually cannot be accessed without penalty until he/she reaches age 59 ½.

Regarding the taxation of benefits upon distribution, Alternate Payees are responsible for the income taxes on any distributions made to them pursuant to a QDRO. The distribution from the plan is taxable to the participant for distributions made for child support or distributions made without a QDRO. The plan will withhold 20% of any immediate cash distribution for federal income tax, but there is no 10% excise tax when an alternate payee takes a distribution from a qualified plan pursuant to a QDRO. This can help an alternate payee who needs cash before they turn age 59 ½.

Almost all defined contribution plans are divisible by QDRO. The parties’ judgment, divorce decree or marital settlement agreement should address the issues listed above since the QDRO should reflect the judgment and having a written agreement prior to drafting a QDRO will allow for the QDRO process to run more smoothly and efficiently.

Need Help?

Call QDRO Helper at (619) 786-QDRO to speak with a helpful California QDRO lawyer today or click here to get started. You can also email us at info@qdrohelper.com.