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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