WHAT HAPPENS TO YOUR PENSION RIGHTS IF THE QDRO DOES NOT GET FILED? FLINT DIVORCE ATTORNEY

GOOD MORNING FLINT! date 01/27/2013
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By Terry R. Bankert [trb] terry@attorneybankert.com
www.attorneybankert.com , https://www.facebook.com/attorneybankert, Flint Divorce & Bankruptcy 810-235-1970

QUESTION : HYPOTHETICAL QUESTION ISSUE DOES NOT INVOLVE A CURRENT OR PREVIOUS CLIENT- Divorced May 2012 in judgement of divorce a 401(k ) was to be divided. The company is requiring a QDRO in order to begin the division of funds.

The husband the original holder of the 401(k) submitted two QDRO’s but each has been returned as they were not within the acceptable guidelines.
SEE: http://michigandivorce.blogspot.com/2013/01/what-happens-when-your-do-not-gety-your.html

The ex-spouse asks Is there a time limitation for the lawyer to submit this QDRO to the company? She would also like to know what is it for the state of Mich. and what are the consequences for not complying with this time limit.

RESPONSE:

THERE ARE A LEAST TWO PROBLEMS .AFTER SIX YEARS THE TRANSFER OF THE 401(K) WILL NOT BE PRESUMED TO BE NON TAXABLE. THE HUSBAND MAY HAVE DIED AND THE 401(K) DISPERSED OTHERWISE.

Retirement benefits are often the largest single asset in a divorce. Michigan law requires every judgment of divorce (or separate maintenance) to determine the rights, including contingent rights, of the parties to (1) any vested pension, annuity, or retirement benefits; (2) any accumulated contributions in any pension, annuity, or retirement system; and (3) any unvested pension, annuity, or retirement benefits. MCL 552.101(4). [2]

Your Pensions earned during a marriage are marital property subject to division. [1] This division of retirement or pension plans can be divided using qualified domestic relations order (QDRO) procedures. [1]

The QDRO rules In Michigan apply to private tax-qualified pension, profit-sharing, and stock bonus plans, including defined benefit pension plans, 401(k) plans, most 403(b) plans and 457 plans, money purchase pension plans, cash balance plans, and employee stock ownership plans (ESOPs). [2]

A Michigan state court domestic relations order (DRO) that is a QDRO within the meaning of IRC 414(p) and 29 USC 1056(d)(3) must be honored by retirement plans that are subject to ERISA. If a DRO is a QDRO, the qualified plan may pay benefits to a former spouse or another alternate payee in accordance with the terms of the order without violating the antialienation rule. It is this exception to the antialienation rule that allows state courts the ability to divide and reallocate retirement benefits in domestic relations actions.[2]

A Domestic Relations DRO may be a judgment, decree, or order made pursuant to a state domestic relations or community property law that relates to the provision of child support, alimony, or the property rights of a spouse, former spouse, child, or other dependent of a plan participant (referred to as an alternate payee). To be a QDRO, the DRO must, among other requirements, specify (1) the name and mailing address of the plan participant and each alternate payee, (2) the amount or percentage of the participant’s benefit to be paid to each alternate payee or how it is to be determined, (3) the number of payments or the period to which the order applies, and (4) the identity of each plan to which the order applies.[2]

The general rule of IRC 1041 is that transfers of property between spouses or former spouses incident to divorce are not taxable. This provision applies not only to transfers at divorce but after as well, provided the transfers are incident to the divorce.[3]

• Six-year presumption. Transfers made pursuant to divorce documents within six years of divorce are presumed incident to divorce and not taxable
• After six years. The reverse presumption—that transfers after six years are not incident to divorce and asre taxable —may be rebutted by presenting evidence to the contrary.

The nontaxable treatment applies to transfers of cash or property, the surrender of marital property rights, and the assumption of liabilities. It does not apply to assignments of income such as an accrued bonus or a right to income from rental property (unless ownership of the rental property itself is also transferred). This is the reason QDROs and EDROs are necessary to transfer pensions tax free.[]3]

Property settlement. Attorneys should also consider the tax consequences of transferring property between divorcing spouses. Generally, no gain or loss is recognized on transfers of property between spouses (or former spouses) incident to divorce—that is, transfers that occur within one year after the marriage is terminated or, if beyond a year, are nonetheless related to the cessation of the marriage.[4]

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[source]

[1]
Information for Clients in a Divorce Case,Contributed by Thomas L. Saxe,
ICLE ,11/11

[2]
Michigan Family Law ch 16 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011), at
http://www.icle.org/modules/books/chapter.aspx?lib=family&book=2011553510&chapter=16
(last updated 01/18/2013).

[3]
Michigan Family Law Benchbook ch 9 (ICLE 2d ed 2006), at
http://www.icle.org/modules/books/chapter.aspx?lib=family&book=2006553550&chapter=09
(last updated 01/18/2013).

[4]
Michigan Family Law ch 18 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011), at http://www.icle.org/modules/books/chapter.aspx?lib=family&book=2011553510&chapter=18
(last updated 01/18/2013).

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Imagine Flint Public Affairs Forum 01/22/13

Paradigm Shift #5

BANKERT PARADIGM by Terry Bankert 810-235-1970 ,
PARADIGM SHIFT DRAFT # 5 , 01/22/12
10:10 AM [incorporation of thoughts from the Congress for Urban Transformation 10/26-28 in Flint and participation in the Flint Master Plan creation process]

How should we think about the future of Flint MI?

WE NEED A NEW WAY OF CREATING IDEAS AND MAKING THEM HAPPEN IN FLINT. A PARADIGM SHIFT.

I attended the Flint Area Public Affairs Forum- January 22,2013. Title Flint Master Plan: our assets and challenges. I believe in this process, but will not ignore the obvious manipulation that is occurring. There is an inside agenda advocated by several speakers choices and words said. The Professor on the panel was restating her position we must abandon portions or our city, no water, no sewage, no storm drains, no garbage pick up, no fire protection, no police protection leaving our mothers and other long term residents trapped in their paid for home.

WHY WAS SHE INVITED ADVANCE A PLANK IN THE MASTER PLAN.

Much time has been spent telling us how inclusive and transparency this process is.  Mayor Walling has been implicitly assuring us of the fairness of this process.

This was a good role for an elected Mayor.

To give us a goblet of trust and the leadership overseeing this process. 

The Mayor tonite shattered that Goblet with an announcement. Mayor Walling said that at his upcoming state of the City he will announce his Master Plan. How can we trust his leadership to mold our hopes and dreams when he is just promoting his. Or worse he is promoting the elites agenda to dismantle Flint to dismantle the city it, privatize it, regionalize for their economic benefit. Just my opinion. Mr. Mayor its a dumb idea to announce your plan before July

In the flyer handed out the Imagine Flint group put out the Following work plan , note the State of the City where Walling will declare his vision is in May I think.

OCT- DEC 2012- WHAT DO WE HAVE This is where we are now.
* Collect input on Flint Issues & Assets- Existing Conditions report
-community Workshop,DIY Kits
-online surveys, community mapper
-advisory groups/ steering committee, in-person interviews
see www.imagineflint.com


JAN-MAR 2013 WHAT DO WE WANT
*Establish Master Plan Vision and Goals-Planning Framework
-neighborhood meetings,advisory groups/steering committee
-21st century visioning Workshop
-online Character Assessment, mind mixer

APR-JUNE HOW DO WE GET THERE
* Develop Objectives & Strategies-Land Use Map
-Neighborhood meetings, advisory groups/steering committee
-Community Mapping Workshop

JUL-SEP 2013 - Draft and revise the master plan
*Develop Master Plan Draft & Implementation Plan
-Advisory groups/steering committee
-Open House
-Community workshop


Flint must change and we must be open to new ideas. Little has been said about the impact of the emergency manager , the still increasing debt and the privatization of traditional city services. The eight hundred pound gorilla is not being discussed.
--end--









--notes follow




WE NEED A NEW WAY OF THINKING ABOUT OUR CITY OR A PARADIGM SHIFT

Handa introduced the idea of "social paradigm" in the context of social sciences, and identified the basic components of a social paradigm. Like Kuhn, Handa addressed the issue of changing paradigm; the process popularly known as "paradigm shift". In this respect, he focused on social circumstances that precipitate such a shift and the effects of the shift on social institutions, including the institution of education. This broad shift in the social arena, in turn, changes the way the individual perceives reality. Another use of the word paradigm is in the sense of "worldview". For example, in social science, the term is used to describe the set of experiences, beliefs and values that affect the way an individual perceives reality and responds to that perception.

Social scientists have adopted the Kuhnian phrase "paradigm shift" to denote a change in how a given society goes about organizing and understanding reality. A "dominant paradigm" refers to the values, or system of thought, in a society that are most standard and widely held at a given time. Dominant paradigms are shaped both by the community's cultural background and by the context of the historical moment. The following are conditions that facilitate a system of thought to become an accepted dominant paradigm: Professional organizations that give legitimacy to the paradigm Dynamic leaders who introduce and purport the paradigm Journals and editors who write about the system of thought. They both disseminate the information essential to the paradigm and give the paradigm legitimacy: [from wikepedia]

How do we organize our thoughts on Flint future? What are the best articles in Urban Studies to plan and create a better future for those who choose to live in Flint Mi?
What is our relationship to this community Flint?
What is the relationship for us of the built up city and the natural environment?
What must we understand about Flint before we can be empowered to change it?
How does race and gender and economic class factor into this study?
What do we know about the Flint cultures?
How is Flint the City an expression of our human spirit?
To know Flint what do we understand about its politics, governance, and economics?
What is the interconnectedness between urban economics, politics, Flint and the greater society?
What is the importance of aesthetics?
Why emphasize the need for a sustainable city? What does that mean?
What is the future of Flint in the information age? We must look deeply and widely about Flint to understand the new paths we must walk, or run!
How do we answer these questions.
1.Attend an Urban Transformation Convention?http://www.facebook.com/attorneybankert#!/events/427543220628472/
see; http://www.mlive.com/news/flint/index.ssf/2012/10/urban_transformation_conferenc.html#incart_river
I attended the Congress for Urban Transformation all events.
2.Read the material in the Flint Public Library set aside for those that wuish to study up for the Flint Master Planning Process
3. PARTICIPATE IN THE FLINT MASTER PLANNING PROCESS.Attend and patricipate... [ show up, speak up , act up, support the will of the majority and rights of the minority. Do my home work and take no prisioners. Advocate the final product even if I disagrees with any part of it]... in the Flint Mater planning process. I am on the Infrastructure and community facilities advisory group. I am listed as Content Knowledge Advisor affiliation attorney.
Concepts integrated below here is a calendar of events & misc
10/29/2012- MASTER PLAN ADVISORY COMMITTEE NATURAL RESOURCES, OPEN SPACE AND CONSERVATION 5;30 Salem Housing 3216 M.L. King Ave.
10/30/2012 - MASTER PLAN ADVISORY COMMITTEE PUBLIC INFRASTRUCTURE AND COMMUNITY FACILITIES, 5:30 PM Hasselbring 1002 West Holmes off Dupobt between Pierson and Carpenenter.
11/12/2012- MASTER PLAN ADVISORY COMMITTEE-HOUSING 5:30 PM. GENESEE COUNTY HABITAT FOR HUMANITY 101 Burton ST.
11/14/20102 - MASTER PLAN ADVISORY COMMITTEE ECONOMIC DEVELOPMENT AND EDUCATION 5:30 Great lakes Baptist Center 5905 N. Saginaw St
11/19/2012 - MASTER PLAN ADVISORY COMMITTEE PUBLIC SAFTEY, HEALTH, AND WELFARE 5:30 pm Hamilton Health, 2900 N. Saginaw
11/26/2012 - MASTER PLAN ADVISORY COMMITTEE TRANSPORTATION AND MOBILITY 5:30 MTA CENTER ROOM TBD 1401 S. Dort Hwy
11/15/2012-FLINT MASTER PLAN COMMUNITY WORKSHOP- Mt. Olive Missionary Baptist Church. 1601 Fay St 7 pm to 8:30 pm.
11/28/2012-FLINT MASTER PLAN COMMUNITY WORKSHOP-Greater Galilee Baptist CHurch 4418 Industrial Ave, 7 pm to 8:30 pm
12/13/2012-FLINT MASTER PLAN COMMUNITY WORKSHOP-Community Action Resource Department (GCCARD) 601 N. Saginaw ST., Suite 1B
ONLINE PARTICIPATIONvisit www.imagineflint.com
For my convenience I will organize material by the topics assigned to the ThE master plan advisory committees.
MORE RANDOM THOUGHTS
What are your thoughts about globalization,information technology,master planning and urban theory?Just what are the competing ideological perspectives on making a better future for Flint?Do you want a sustainable urban development in this postmodernist era?I sure do.
YOU SHOULD GET INVOLVED, LEAD BY EXAMPLE.
I think involvement in the Flint Master Planning three year project is an excellent way to self educated and create a community coalition to take the ideas and decisions from this vehicle to cause real change in Flint and cultivate and grow new community leadership. Let me know if you are interested.
I have a small role in the Flint Master Planning Project as a member of one advisory committee to a steering committee that reports to the Flint Planning Commission .
With an open mind I am starting here by constructing a set of assumptions and model of decision making for ME in this process. I fully expect to modify my thoughts in this personal paradigm before the three years Master Plan process is completed.
I will use as my foundation text “The City Reader” 3rd edition edited by Richard T. LeGates and Fredric Stout 2003. Within it I will use the article “Planning Sustainable and Livable Cities” by Stephen Wheeler 1998 which is the second to last chapter and and projects thoughts I agree with about how cities should be reorganized using the Flint Master Planning Process.. Additionally I just liked it.
What follows here I do not present as original work . I will cite other sources when used This paper begins as an adaptation of the Wheeler article altered with subsequesnt resources and my opinions . My objective is to create for me a paradigm of decision making for use in the Flint Master planning process. If it helps you, that great!
Terry Bankert www.attorneybankert.com
Flint Michigan is the murder capital of the United States with a history of Municipal Financial irresponsibility resulting in two takeovers of the city by the State of Michigan. One still under way. Are we just children and victims that cannot sustain a livable city?
What can we citizens of Flint do to create a better future ?
Reorganize is the logical response. Reorganize the culture of the community, its economics, its politics, its sustainability and its livability.
How can we reorganize?
A tool citizens have is an adequately funded professionally run first rate Master Planning Process.
see overview of the Flint Master Planning Process,
http://goodmorningflint.blogspot.com/2012/10/it-is-your-flint-future-that-is-being.html
You are invited to join with me one of Flints oppressed citizens to forge a better worls...lol.... I suggest an informal group come together. Comprised of citizens formally in the master planning process and some not to learn and monitor the process with the goal of making the conclusions of the group happen. Let us/me know if you are interested.
Once more my style here is to adopt the Wheeler article and any resource I can get my hands on RELEVANT to the Flint situation and not present it as my original work BUT AN ACTION PLAN. Now on to it.
INTRODUCTION
We know the enormous and exponential growth of the worlds population has a profound and often catastrophic effect on the natural environment of Planet earth. Non-renewable energy sources have been consumed though not yet totally depleted We have been cleared of our oxygen giving forests, buffalo slaughtered, species extinguished. Did you know the rainforests are disappearing. Today, many argue that global warming caused by population growth, urbanization, and irresponsible fossil fuels consumption now threaten to cause irreparable damage to the climate of the entire world. [1]
We use sustainable to describe a world in which both human and natural systems interact positively to create a more livable city. [1]
How can these elements describde briefly below be used to generate consensus around specific master planning objectives.
Some ask can this process avoid cooptation by existing political forces?
I argue lets use this process to bend if not break the stranglehold of old school politics in Flint Michigan.
Let us demonstrate we have the community will to grow new enlightened leadership or cause the cooptation of the existing political leadership.
Nobody gives you political change based on new sustainability livability paradigms . We have to take it, to force it to happen, to bend others to our will , to co-opt or break them.
Wheeler views the evolution of sustainable urban development thinking and welds it to a new concern for livability. For Flint needed are fewer murders and economic viability to sustain basic services and generally make this city more livable. We must change our view of how this community is organized.
Sustainability used here is development that improves the long-term health of human and ecological systems.
We present here core themes to apply to our decision making as good citizens and to guide efforts or thoughts in the Flint master planning process.
My goal taking from Wheeler is to offer a theoretical framework or paradigm to provide tools to carry out our plan to foster a sustainable and livable community by the formalism of the master planning process. My foundation objective is to change the political culture and seed our community with new thoughts and new future leadership.
SPECIFICS for Flint's Urban Development Strategy,
1. create a long term plan not year by year or election cycle by election cycle.
2.recognize that a core theme in urban sustainability requires we pay attention to the natural environment.
3.Urban sustainability master planning requires holistic and interdisciplinary connections of the insights of ;
a. biologists
b.transit planners
c.agronomists
d.economists
e.experts in land use
f.experts in transportation
g.experts community development
h.environmental planning
i. experts in sociology
j. experts in political science
k.experts in criminal justice
l. experts in the law
m. experts urban studies and public administration
n.experts in the arts
o. YOU!
There are several directions our conversations should take to reach a consensus on Flints sustainable urban developmental policy and master plan. We recommend these core values be articulated to re build Flint formally and informally to achieve sustainability and livability.These core values are;
1. no unplanned urban sprawl
2.efficient infrastructure
3.compact efficient land use
4.fewer automobiles necessary in the city
5.more efficient resource use
6.restoring natural systems
7.good housing
8.health social ecology
9.sustainable economics
10.green urban-ism
11.combine land use housing and transit design in environmentally sensitive ways
12.seed pressure to change the culture of Flint
13. Seed new political and institutional leadership
Material organized by CITY OF FLINT MASTER PLAN ADVISORY GROUPS
1.Housing
2.Economic Development
3.Transportation and mobility
4. Natural resources, Open Space and Conservation
5.Public Infrastructure and community facilites
6.Public saftey
and other topical arears I think are needed.
7. Implementation/political action/ taking it to the street
-
below from the material provided by the master planners staff, then my adoptation
1.Housing- affordable housing, neighborhood blight, residential demolition, housing rehabilitation, multi-family housing, reuse vacant buildings for housing. Sample task-Review of nbh housing inventory or houising market analysis.
2.Economic Development-job training, expansion of small business,literacy,pre k education, community schools, commecial demolition, industrial park development. -Sample task-Review market analysis to identify needed neighborhood services or examination of workforce and educational attainment data.
3.Transportation and mobility- complete street, bicycle paths, bus transportation.Sample task- Review of substantial transportation principales and strategies to incorporate "complete street" into Flint.
4. Natural resources, Open Space and Conservation-urban gardening, urban agriculture, Flint River, community parks, vacant land, environmental conservation.Sample task-Review of startegies to improve water quality of the Flint River.
5.Public Infrastructure and community facilites-utilities, storm/waste water, recreational facilkities, library, fie/police stations, public art, city wide wireless communications. Sample task-Review of Flint School Facility Plans or feedback on the City's storm management system.
6.Public saftey, health & welfare- police fire services, health and social services.Sample task-Identification of sources for health and crime data or recommendations on how to track improvements in these areas after the Master Plan is implemented.

and other topical arears I think are needed.
7. Implementation/political action/ taking it to the street
BANKERT PARADIGM SHIFT

I WHAT IS THE THEORY OF A MASTER PLAN

II
1.Housing-
affordable housing,
neighborhood blight,
residential demolition,
housing rehabilitation,
multi-family housing,
reuse vacant buildings for housing. Doug Weiland stated Flint has had 50 years of population decline. 35% of the Property in Flint is abandoned. 1/3 owned by the Landbank[2]
Strephen Allerano stated . Zoning changes are needed . Other thoughts WHy no chickens in the city why any zoning. Lets zero base our thoughts of zoning. What does future Flint need.WHy not give vacant land to tenured citizens , answer the powes to be want to cllect land to give to defvelopers.
Sample task-Review of nbh housing inventory or houising market analysis.


2.Economic Development-
job training,
expansion of small business,
literacy,
pre k education,
community schools,
commecial demolition,
industrial park development.
-Sample task-Review market analysis to identify needed neighborhood services or examination of workforce and educational attainment data.


3.Transportation and mobility-
complete streets,
bicycle paths,
bus transportation.

Sample task- Review of substantial transportation principales and strategies to incorporate "complete street" into Flint.

4. Natural resources, Open Space and Conservation-
urban gardening,
urban agriculture, - Greg Haines , Mr Rodgers - Flint needs to expand its urban gardening program.Teach to youth job skills and the ability to feed them selves. ZONING CHANGES ARE NEEDED TO PROMOTE URBAN AGRICULTURE. tr- What changes?[2] Jerome Chou said the law needs to be adjusted to allow urban agriculture.[2]
Flint River,
community parks,
vacant land,
environmental conservation.

Sample task-Review of startegies to improve water quality of the Flint River.

5.Public Infrastructure and community facilites-
utilities,
storm/waste water,
recreational facilities,
library,
fire/police stations,
public art,
city wide wireless communications.

Sample task-Review of Flint School Facility Plans or feedback on the City's storm management system.

6.Public saftey, health & welfare-
police fire services,
health and social services.

Sample task-Identification of sources for health and crime data or recommendations on how to track improvements in these areas after the Master Plan is implemented.

and other topical areas I think are needed.

7. Implementation/political action/ taking it to the street

8.INDEX NEEDs for change and suggest ordiance changes or charter changes or state legislative changes or federal policy changes
9. Make Flint desireable and user friendly to business. Make it easy to get throught the maze of regulation, inspections and city authorization

10 MAJOR PROJECTS
a."The CHevy" old chevy in the hole by kettering.
b."The neighborhod a companioj project in the neighborhoods using resources from the CHevy the CHevy gets community support.
c. City ewide lanscaping master plans
d. recalim industial sits to include but not limited to checy in the hole

11. integration of all institution planning currently used and shelved documents we do not have to re create the wheel.WHAT DO YOU THINK?
12 what are the expectations of the funding sources
13.
by Terry Bankert Flint Divorce Bankruptcy Attorney 810-235-1970
Sources
[1]
The City Reader” 3rd edition edited by Richard T. LeGates and Fredric Stout 2003. “Planning Sustainable and Livable Cities” by Stephen Wheeler 1998 beginning page 486
[2]
CONGRESS FOR URBAN TRANSFORMATION , Flint Public Art Project 10/26-28 in Flint MI.
124 W.1st Street Flint MI 48502, info@flintpublicartproject.com
www.flintpublicartproject.com
Working with residents to revitalize the city through art and design.
[3]
www.imagineflint.com
[4]

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