Rightfully Yours. Gary A. Shulman

Чтение книги онлайн.

СКАЧАТЬ rejected from time to time. Do not be ovely alarmed if your QDRO is rejected. Stay diligent, and correct any deficiencies immediately on hearing back from the plan administrator.

      Let’s assume that your divorce decree included language that awarded you 50 percent of the total account balance in your ex-husband’s 401(k) plan as of February 15, 2002 (your date of divorce). You could try using Sample 11 — which is meant to be used when assigning to an alternate payee 50 percent of the participant’s total account balance under a defined contribution plan.

      If you do attempt to draft the QDRO yourself by using one of the samples in this book, remember, a QDRO is really a court order that is signed by the judge. When typing the QDRO, you should have available to you a copy of your original divorce decree. All court orders, including your QDRO and your original divorce decree, must have a caption at the top of the first page of the order. The caption is the top part of the court order that includes the name of the case, the number of the case, the name of the judge, and the name of the order. Also, a vertical line of parentheses usually divides the left part of the caption from the right part. Be sure to include a caption at the top of your QDRO. You can use the same caption as was used in your divorce decree, but where it says “Decree of Divorce” or something similar to that on the right-hand side of the caption, you should include the words “Qualified Domestic Relations Order” to show that the document you prepared is a QDRO and not the original decree of divorce.

      3.1 Step-by-Step Instructions for Completing a Sample QDRO Yourself

      You don’t have to be an attorney to complete the sample QDROs found in Chapter 19 of this book. Don’t be afraid of some of the legal-sounding words or phrases found in the sample QDROs. Most individuals can understand a QDRO when they read it carefully. Following is a section-by-section description of Sample 11. Again, this sample QDRO is used for providing you with 50 percent of the account balance as of the date of divorce under a defined contribution plan.

      3.1.a Section 1

      Section 1 of the QDRO is considered boilerplate. That means it’s a form of legalese. Just type it and forget about it. It simply states that the order is considered to be a QDRO in accordance with federal QDRO laws found in Section 414(p) of the Internal Revenue Code and under the federal pension law known as ERISA.

      3.1.b Sections 2 and 3

      Remember, in a QDRO, you are considered the “alternate payee” and your ex-husband, is considered the “plan participant.” You should therefore complete Sections 2 and 3 of the QDRO accordingly. All QDROs must include the name and last-known address of the participant and alternate payee. If you do not know your ex-husband’s current address, you should include his last known address. This should be acceptable to the plan administrator.

      3.1.c Section 4

      In Section 4 of the QDRO, you must include the actual (official) name of the company’s pension plan or savings plan, as applicable. You can usually obtain this information by contacting the company’s human resources or personnel department. You must get the name exactly right. If you leave out a comma or the word “Inc.” from the name of the plan, this could give them a reason to reject your QDRO.

      3.1.d Section 5

      In Section 5, you should include the name of the state where you were divorced.

      3.1.e Section 6

      Section 6 of the QDRO simply states that it relates to the provision of “property rights” or “support” payments granted to you under the divorce. Again, this is considered boilerplate, which means type it and forget it.

      3.1.f Section 7

      The “guts” of the QDRO can be found under Section 7. This is where you include the “amount” of benefits payable to you. Sample 11 is already set up to provide you with 50 percent of the total account balance in the plan as of your date of divorce. Remember to include your date of divorce where indicated. This Sample QDRO also provides you with any interest or investment gains or losses attributable to your share of the benefits from your date of divorce to the date you receive your distribution.

      3.1.g Section 8

      Section 8 of the QDRO provides that you may receive your distribution as soon as the QDRO is approved by the plan administrator, to the extent permitted. If the plan does not permit you to receive your funds right away, the plan administrator will set up separate accounts in your name under the plan. You would then receive investment gains or losses on your share of the benefits until the date of distribution.

      3.1.h Section 9

      Section 9 of the QDRO gives you all of the rights granted to participants and beneficiaries under the plan. This is considered boilerplate language.

      3.1.i Section 10

      Section 10 simply states that if you die before you receive your distribution, then payments will be made to either your designated beneficiary or your estate. They will not revert to your ex-husband.

      3.1.j Section 11

      Section 11 protects you in the event of the death of your ex-husband before you receive your distribution. In essence, you will be treated as his beneficiary, to the extent of your assigned interest under the QDRO if he predeceases you.

      3.1.k Section 12

      Section 12 is just boilerplate. Type it and forget it.

      3.1.l Section 13

      Section 13 is also boilerplate. Under federal law, any amounts that you receive as alternate payee will be taxed to you. It’s the law. You can’t change it.

      3.1.m Section 14

      Section 14 is the “constructive receipt” section. This legal-sounding phrase simply means that if the plan administrator accidentally pays your ex-husband any of your money, he will be required to pay you back immediately.

      3.1.n Section 15

      Section 15 is legal boilerplate. “Continued jurisdiction,” is a legal mechanism enabling you to go back to court, if necessary, to carry out the intentions of the QDRO, the parties, and the court if your QDRO is rejected.

      3.1.o Section 16

      Section 16 is boilerplate, too. If the company terminates the plan before you receive your distribution, this section will protect your benefits to the same extent that a participant’s benefits will be preserved on termination of the plan.

      3.1.p Section 17

      Section 17 is called anti-circumvention language. This legal-sounding phrase is intended to protect you if your ex-husband СКАЧАТЬ