Just PENSIONS

Ablamis v. Roper (9th Cir., 1991) 937 F.2d 1450

Wife in intact marriage could not leave her community half of an ERISA qualified defined benefit pension plan to her children upon her death prior to Husband.An order issued by a probate court under California’s statute abolishing the terminable interest rule did not meet the test of a DRO.

In re Marriage of Adams (1976) 64 Cal.App.3d 181, 134 Cal.Rptr. 298

Nonemployee spouse’s interest properly based on ultimate retirement benefit, not benefit accrued as of date of separation. Time rule discussed.

In re Marriage of Alarcon (1983) 149 Cal.App.3d 544, 196 Cal.Rptr. 887

Court may consider effect H’s accepting appointment to federal bench had on his Cal. judge’s retirement benefits when dividing c/p.

Albaneze v. Pfizer, Inc. (D. Kansas, 1996) 1996 US.Dist.

LEXIS 7047 Decedent’s interest in 401(k) appreciated substantially after date of death. Plan was allowed to keep the appreciation because the plan document specified that the amount payable was value at date of death. “It is not unusual for a plan to apply a valuation date earlier than the distribution date.” Moral: Be a aware of defined contribution plan rules on valuation dates before embarking on QDRO process.

Allen v. Ford Motor Co. (681 Cir., 1993) 1993 U.S. App.

LEXIS 24315 Under former IRC 402(a)(6)(F), subtle restrictions on Alternate Payee included this| AP must roll over the same property AP received from the plan-not cash proceeds from sale. Participant or beneficiary may have cause of action for bad information given by plan administrator. Latter has a fiduciary duty under the Employee Retirement Income Security Act (ERISA) to provide [participant or beneficiary] with accurate information.

In re Marriage of Allison (1987) 189 Cal App 3d 849, 234 Cal.Rptr. 671

Prior bifurcation of status will not defeat wife’s right to survivor benefits from husband’s plan. (Court required plan to start over and re-do option from retirement date, when husband retired under option without wife’s consent or court order.) But see: Hopkins & Samaroo re ERISA Plans.Court’s changing optional form of retirement chosen by Husband via post retirement QDRO approved as long as provision made to recoup any actuarially determined overpayment.

“Any attempt to establish a right to benefits will involve a determination [by the superior court] of the terms of the plan.” (p.855)

In re Marriage of Anderson (1976) 64 Cal.App.3d 36, 134 Cal.Rptr. 252

Time rule applied even though pension increased in value after date of separation because early years should count as much as later years.

Estate of Altobelli v. IBM Corporation (4th Cir., 1996)

77 F.3d 78. Held that the anti alienation clause does not apply to a wife/beneficiary’s waiver of right as default beneficiary under husband’s deferred compensation through his employment which was assumed without argument to include the group life insurance plan in question. Giving effect to a waiver does not burden plan administrators in a manner violative of ERISA. “Congress’s provisions for QDROs reveal that, in some situations, it deems the intent of the parties sufficiently important to override the policy of simplified administration. As a matter of Federal common law, joins Seventh Circuit in giving effect to such a waiver. Interesting dissent. See also, the Emard case.

In re Marriage of Andreen (1978) 76 Cal.App.3d 667, 143 Cal.Rptr. 94

Pension valued based upon H’s final salary at retirement, not that as of date of separation.

Steamship Ass’n/ International Longshoremen’s Ass’n

Bailey v. Board of Trustees of the New Orleans Steamship Ass’n/ International Longshoremen’s Ass’n, AFL-CIO Pension Trust Fund (E.D. La.)1996 U.S. Dist. LEXIS 231. Participant died in 1990 and his second wife obtained a QPSA benefit from the plan. In 1995, first wife obtained a valid QDRO which provided her with her community property share of the qualified pre-retirement survivor annuity benefit. Court stated that she was entitled to fees under 29 USC 1132 (Act 502] (g).

AT&T Management Pension Plan v. Tucker, (C.D. California 1995) 902 F. Supp. 1168

ERISA preempted state court provisions re attorney fees when imposed upon an ERISA plan. No mention was made in the case of a federal grounds for such fees; no party raised it. The court in In Re Marriage of Baker 204 Cal.App.3d 206 (1988) awarded the alternate payee such fees based upon the jurisdiction granted under ERISA §502(g).

In re Marriage of Babauta (1998) 66 Cal.App.4th 784, 78 Cal.Rptr.2d 281

Trial court had jurisdiction to divide H’s Marine Corps voluntary separation incentive benefit and to characterize it as community property.

Bailey v. New Orleans Steamship Association , (5th Cir., 1996) 100 F.3d 28 [Bailey I]

Approved and attached [Bailey I] re approval of QDRO and referred to approving fees which happened to be in [Bailey II], not attached, probably through oversight.[Bailey I] QDRO completed five years after retirement which shifted survivor portion of pension from Wife two to Wife one was upheld since it did not increase the actuarial value of the benefits payable.

Bailey v. New Orleans Steamship Association (E. Dist. Louisiana, 1996) 1996 U. S. Dist. LEXIS 2422 [Bailey II]

District court found it appropriate to award attorney fees to prevailing alternate payee where plan was found to be wrong, but had not proceeded in bad faith. “Because this precise situation, i.e., that of a former spouse seeking recognition of a community right in a pension plan of a participant, is likely to recur on a repeated basis, and because the Fund disputed entitlement of the plaintiff at every stage despite plaintiff counsel’s considerable efforts to convince it, the Court finds that the decision will certainly benefit future former spouses [*6] in the plaintiff’s circumstances. The Plan will be deterred from asserting its unmeritorious basis for denying former spouses’ their right to receive the applicable community portion of the participant’s benefit. Thus, the Court finds that the plaintiff is entitled to an award of attorney’s fees and costs in this action.”

In re Marriage of Baker (1988) 204 Cal.App.3d 206, 251 Cal.Rptr.126; King, J. /DCA 1

Because pension plan was joined and failed to discharge its duty toward wife, fee order was justified and authorized by both Civil Code Section 4370 and 29 U.S.C. Section 1132(g). But see Att v. Tucker.Pension which has been joined and pays out benefits to employee contrary to court order liable to spouse for c/p share. Caution: This holding highly questionable in light of Boggs , infra.

California ’s joinder and notice of adverse interest statutes are not preempted by ERISA. Caution: This holding highly questionable in light of Boggs , infra.

Balding v. Commissioner (1992) 98 TC 27; Tax Ct. Rep. (CCH) 48, 116

Wife settled action for omitted military pension by taking cash-out of $42,000 payable over three years. Court held that IRC 1041 controls and payments received by Wife were tax free.

Barnes v. Maytag (S.D.,III., 1992) 799 F. Supp 926

QPSA coverage does not apply to other than spouse. Coverage denied to a severely mentally retarded adult child of a single father.

Bass v. Mid-America Co., Inc. (N.Dist. Illinois , Eastern Division, 1995) 1995 U. S. Dist. LEXIS 15719

A nonqualified plan which does not specifically refer to 415 limits is not an excess benefit plan. The distinction is important because an unfunded excess benefit plan is not subject to coverage under ERISA. The court declared this employer’s plan (unfunded plan paying annuity in addition to other qualified plan of employer) a Top Hat Plan; therefore, the plan was subject to the rules re Qualified Domestic Relations Orders. Caution: This case not published officially and has questionable use as authority for the proposition espoused.

In re Marriage of Becker (1984) 161 Cal.App.3d 65, 207 Cal.Rptr. 392

PERS death benefits should be divided pro tanto between former wife and member’s widow.

In re Marriage of Behrens (1982) 137 Cal.App.3d 562, 187 Cal.Rptr. 200

Court has broad discretion in awarding attorney fees.DC plan valued at date of separation plus increases in value of assets then in account.

In re Marriage of Beltran 1986) 183 Cal.App. 3d 292, 227 Cal.Rptr. 924

Court may divide military retirement where marriage is less than 10-years, however, direct payment cannot be ordered.H properly charged with loss of vested military leave (vacation) due to criminal conduct.

In re Marriage of Bergman (1985) 168 Cal.App.3d 742, 214 Cal.Rptr. 661; King, J./DCA 1

Disability payments are s/p until employee has right to longevity payments.Poor health of employee merely a factor for court to consider in determining whether to order cash-out of pension.

Health of employee must be considered in determining value of plan.

Court may not simply “reserve jurisdiction.” Must make a present disposition, either by cash-out or in-kind disposition.

Value of c/p interest in defined contribution plans is amount of contributions during marriage, plus accruals thereon. Expert testimony is not required.

No discount for future taxability of pension benefits.

Blatt v. Commissioner (1993) T.C.Meno 1993-550;66 T. CM.

(CCH) 1409 Spouse could not reliever lump sum to 403(b) without taxation, even under QDRO.

Blue v. UAL Corporation (7 th Cir., 1998) 160 F.3d 383

Plan not obliged to look behind the form of child support domestic relations orders to see if some part is attorney fees. “ERISA does not require, or even permit, a pension fund to look beneath the surface of the order. Compliance with a QDRO is obligatory.”

Boggs v. Boggs (1997) 520 U.S. 833, 117 S.Ct. 1754, 138 L.Ed.2d 45

ERISA preempts state law allowing nonparticipant spouse to transfer by testamentary instrument an interest in undistributed pension plan benefits. Children may not have probate court consider deceased mother’s share of benefits in distributing rest of probate estate.H was a participant in a pension plan. He was married to W-1, who died before H retired. H later married W-2; he subsequently retired. When he died, leaving W-2 as his widow, H’s adult sons attempted to claim entitlement to a portion of H’s retirement benefits, arguing that they passed to them by W-1’s purported testamentary transfer to them, under Louisiana law, of a portion of her community property interest in H’s undistributed pension plan benefits.

The Supreme Court made short work of their claim, holding that ERISA pre-empted state law allowing disposition by a non-participant spouse of a portion of the surviving spouse’s annuity, noting that under ERISA, even the participant spouse can not defeat the non-participant spouse’s right to that survivor benefit.

In re Marriage of Bowen (2001) 91 Cal.App. 4 th 1291, 111 Cal.Rptr.2d 431.

Time rule limited to inclusion of service used in each plan formula. Where there are two consecutive non-merged plans, analyze plans separately.

Branco vs. UFCW-Northern California Employers Joint Pension Plan (2002) 279 F.3d 1154; 2002 WL 200910

Properly entered QDRO in California Disso awarded W 47% interest in H’s pension benefits, payable “for so long as they were payable to [H].” W died before H went into pay status. When H subsequently applied for benefits, the Plan paid him only his remaining 53% of the benefit. H sued the Plan, seeking payment of the entire payment without reduction. When the Plan refused, H attempted to argue that W’s interest passed to her heirs (the 2 adult sons of the parties) who then executed assignments of the benefits back to their father. The court rejected this approach, and held that a deceased spouse is not a “spouse or former spouse” under ERISA; and therefore she had no interest to devise. However, it found that Federal law requires that benefits be paid according to the terms of the Plan, which “are payable ¼ to participants ¼ ” and therefore H was entitled to the entire, unreduced payment.

Brewer & Federici, Irmo 93 Cal.App.4th 1334; 113 Cal.Rptr.2d 849 (2001)

This is more a disclosure case than anything, but affirms the critical necessity of being as forthright as possible on Disclosure Declarations. In this case, the court held that listing the value of a pension plan as “unknown” in Disclosure Declaration is grounds for setting aside a stipulated judgment. There is an affirmative duty upon the member/participant to ascertain and disclose the value of the plan benefits; failure to provide accurate information, even absent any concealment or wrongdoing, can result in mistake of fact by the other party sufficient to set aside the entire agreement.

Brandon v. Travelers Ins. Co. (5th Cir., 1994) 18 F.3d 1321

An explicit and voluntary provision in a divorce decree was held in effect to consent to waive spouse’s interest in ERISA benefit even though the employee did not change the beneficiary before his death.

Brown v. Connecticut General Life Insurance Co. (11th Cir,, 1991) 934 F.2d 1193

First wife’s claim to ERISA group life insurance proceeds under divorce settlement held toraise federal question and be super preempted.

In re Marriage of Brown (1976) 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561

Nonvested pension rights acquired during marriage are c/p subject to division. Note: there is no “time rule” defined in Brown; see, e.g., Adams, Anderson and Judd cases.

Bunney v. Commissioner , No. 20713-97 (U.S.T.C. 04/10/2000)

MSA stated that IRA was to be divided between owner H and Former Spouse as community property. H withdrew half and gave it to FS. H paid huge tax. FS got it tax free. Moral: Specific tax statute IRC 408(d) controls and must be followed. Tax free IRA to IRA transfer can be accomplished with careful drafting.

Burgart v. Burgant (1970) 5 Cal. App. 3d 409, 85

Obligations to first spouse take precedence over second spouse’s community property rights. Context: Obligation to keep wife insured under specific policy.

Butler v. Encyclopedia Britannica, Inc. (N.D.,III,, 1994)

1994 U.S. Dist. LEXIS 192 Although, husband’s notarized signature was not signed in front of a notary, it sufficed for the purposes of an IRC 417 waiver of QPSA benefits in favor of participant’s daughter.

Cann v. Carpenters’ Pension Trust Fund (9th Cir, 1993) 989

F2d 313. ERISA does not authorize courts to award attorney’s fees for legal work performed prior to the preparation and filing of a participant’s action. ERISA also does not provide for the award of multiplier fees, which enhance an attorney’s normal hourly rate based on the difficulty of a case. Note| filing of Joinder Pleading probably commences action.

Carland v. Metropolitan Life (10th Cir., 1991) 935 F.2d

Life insurance plans under ERISA (a species of welfare plan) subject to QDRO’s.Incorporated (in addition to merged) property settlement agreement can constitute QDRO.

In re Marriage of Carnall (1989) 216 Cal.App.3d 1010, 265 Cal.Rptr. 271; Moore, J./DCA 4

In governmental plan, court may not require former spouse to be named as employee’s “surviving spouse,” where that provision violates terms of plan (despite Family Code § 2610)However, if employee has a surviving spouse who qualifies for the survivor benefit, the former spouse may claim an interest in the survivor continuance benefit paid of the surviving spouse and receive direct payment from the plan.

Carpenter’s Pension Trust for Southern California v. Kronschnabe (1980) 632 F2d 745

Board of Trustees of Carpenters Pension v. Reyes (9th Cir., 1982) 688 F.2d 671

Nonemployee ex-spouse, who was able to enforce her right as participant in spouse’s pension fund, was permitted as a participant seeking to enforce those rights–an award of attorney fees under ERISA. Doctrine of res judicata will prevent federal litigation of federal constitutional claim or other claim based on same cause of action that was or might have been raised in state action that has come to final judgment.

Casas v. Thompson (1986) 42 Cal.App. 3d 131, 228 Cal.Rptr. 38, 720 P.2d 921, cert.den. 479 U.S. 1012

Employee not required to reimburse non-employee for his/her share of omitted pension prior to the date of filing partition action, based on equitable principles.

Clark v. Metropolitan Life Insurance Co. (6th Circ., CA)

(1996) ¶23,923 O. Under ERISA Section 503, a plan administrator that denies benefits must give a specific reason for the denial, not just conclusory statements.

Clawson v. Commissioner, U. S. Tax Court, ¶23,927L

appx 10/28/96. QDRO provided that participant would pay the taxes on the distribution to the alternate payee, IRS took taxes from alternate payee per IRC 402(a)(9). Parties can’t bind IRS by their directions re tax treatment.

In re Marriage of Cohen (1980) 105 Cal.App.3d 836, 164 Cal.Rptr. 672; Jefferson, J., by assign./DCA 2

Social security is not subject to division and cannot be recognized by alternative provisions employing a set-off.

In re Marriage of Colvin (1992) 2 Cal.App.4th 1570; 4 Cal.Rptr.2d 323.

A separate-accounts scheme for awarding benefits to a nonemployee spouse is not mandated by the Judges Retirement Law. (Note subsequent liberalizing amendments to JRL making this scheme a desirable choice.)Cf. separate accounts arrangements under PERS and STRS. Great care should be exercised before choosing separate accounts. Separate accounts remain the choice of the nonemployee spouse per Family Code § 2610.

In re Marriage of Connolly (1979) 23 Cal.3d 590, 153 Cal.Rptr. 423, 591 P.2d 911

Court has considerable discretion in dividing community property to assure an equitable division.Division in kind not required; in some cases, court should award asset to spouse better able to bear the risk.

Cornbleth v. Cornbleth (1990) 397 Pa. Super. 421, 580 A.2d 369

Employee argued that part of civil service pension should be excluded from marital estate due to his nonparticipation in Social Security . The court held for the employee. But see Cohen , infra.

In re Marriage of Cornejo (1996) 13 Cal. 4th 381, 53 Cal. Rptr. 2d 81, 916 P. 2d 476

A party electing payments under the Gillmore case cannot effect an election prior to the date of filing a Notice of Motion for that purpose.

Coughlin v. Board of Administration (1984) 152 Cal.App.3d 70; 199 Cal.Rptr. 286

Strict application of statutes regarding statitory beneficiary-designations may be inappropriate. Intent of Legislature was to anticipate what employee would done if attentive –not to mandate.

In re Marriage of Cramer (1993) 20 Cal.App.4th 73, 24a Cal.Rptr.2d 372

Former spouse could not remain beneficiary of elective “free” survivor continuance benefit under county plan because she was not married to member at his death. Result: Plan saved $$; former spouse lost protection.

Critchell v. Critchell (D C App., 2000) No. 98-FM-1304

Before marriage wife waived rights to H’s pension; trial court held that wife’s waiver was pre-empted by ERISA, relying on cases like Hurwitz to extend non-waivability (a) to property division as well as survivorship and (b) to former as well as current spouses. Appellate court said wrong on both (a) and (b). Cant’ stretch the legislative history this far.

Custer v. Custer 776 SW 2d 92, 95-6 (1988)

If a court qualifies the order, then the obligation of the plan is to pay the segregated funds to the alternate payee.

In re Marriage of Crook (1992) 2 Cal.App.4th 1606, 3 Cal.Rptr.2d 905

An express waiver required to waive important property rights. Clause in MSA that W would start her benefit when husband retired (i.e.,waive Gillmore rights) insufficient waiver. Husband’s attempt to keep all increases due to post-separation salary increases foiled again. Use this case to argue against implied waivers of survivor and successor benefits– since these were found to be a fundamental right under Family Code 2610–See Taylor, infra .

Dickerson v. Dickerson and Southern Electrical Retirement

Fund 803 F. Supp 127 (E.D. Tenn., 1992) AP will not be allowed to commence benefits earlier than earliest retirement age.

Emard v. Hughes Aircraft Co. (9th Cir. 1998)

153 F.3d 949 California community property laws do not prempt ERISA as to disposition of proceeds of welfare plan.

Equitable Life Assurance Society v. Chrysler

(8th Cir., 1995) 66 F.3d 944. Award of life insurance policy proceeds a matter of state law since state domestic relations orders not preempted by ERISA with respect to welfare plans. Because the anti-alienation provision does not apply to welfare plan benefits, a party’s divorce decree need not be a QDRO to avoid that provision.

Family Code §853

(b) A waiver of a right to a joint and survivor annuity or survivor’s benefits under the federal Retirement Equity Act of 1984 (Public Law 98-397) is not a transmutation of the community property rights of the person executing the waiver.

Fastner v. Fastner 427 N.W. 2d 691,698, (1988)

The appellate court’s remarked| “The obvious advantage of a QDRO… is that the non pensioned spouse has the option to receive payment during his or her own lifetime.” Joined plans have 30 days to remove the action after joinder is commenced and they receive the pleading on joinder. 28 U.S.C. 1446(b). Although not jurisdictional, it is a strictly applied rule of procedure and untimeliness is a ground for remand.

Fieharry v. Flabarty (D,,Mass., 1992) 1992 U.S.Dist.

LEXIS 11486. Case involved Wife trying to get TRO on pension plan. Held| To be removable, an action must be both within the scope of the civil enforcement provisions and preempted.

Fox Valley & Vicinity Coheir. Workers Pension Fund v. Brown (7th Cir., II1., 1990) 897 F.2d 275.

A divorce decree was held to waive spouse’s interest in ERISA plan benefit even though the employee did not change beneficiary before his or her death.

Gamble v. Group Hospitalization & Medical Services, Inc.

Excess Benefit Plan (4th Cir., 1994) 38 F.3d 126 A CEO’s claims against an excess benefit plan (a form of nonqualified plan) would be handled under state law since the plan was not subject to ERISA.

Glovannoni v. Glovennoni (1981) 122 Cal,App.3d 666, 176

Cal.Rptr. 154 Grodin, J./DCA 1 Wife may partition husband’s pension because not mentioned in judgment, even though she knew of it, claimed it as community property in petition, but erroneously thought it to be worthless. Gray v. New England Tel. and Tel, Co. (1st Cir., 1986) 792 F.2d 251 Attorneys’ fees provisions of ERISA 502 [29 U.S.C. 1132] should be construed liberally in favor of a participant, or beneficiary since this construction is most consistent with the purpose of ERISA.

Grabois v. Jones (1998, DC NY) at CCH ¶23,942X.

Which woman was legal wife at death of Participant was not federal law question pursuant to ERISA Section 514(a), which does not preempt areas of traditional state regulation such as marriage and divorce. [description as yet unverified] 6/1/98.]

Guidry v. Sheet Metal Workers International Association

Local No. 9 (10th Cir., 1993) 10 F.3d 700 Check this? right holding? ERISA’s anti-alienation provision did not prohibit garnishment of a participant’s pension benefits after the benefits had been received by the participant.

Gunn v. United Airlines, Inc. (1982) 13 Cal.App. 3d 765

188 Cal.Rptr. 302 Racanelli, P.J. /DCA 1 Subsequent spouse may be deprived of community property interest in retirement benefits based on promise to former spouse.

Hearn v. Western Conference of Teamsters Pension

Trust Fund (9th Cir., 1995) 68 F.3d 301. When participant lied about his status as single, the plan was required to provide survivor annuity status to the spouse less the savings realized on the payments already made because of the lack of reduction to pay for such survivor annuity.

Indiana State Council of Carpenters Pension Fund v. Veclotch and Thurin (N.D., Ind. 1992) 785 F. Supp. 106

Loose language held to give former spouse QPSA coverage. (Don’t depend on it.)

Irwin v. Irwin (1977) 69 Cal.App. 3d 317, 138 Cal.Rptr.

9 Gargano, Acting P.J./DCA 5 Allegation of no property where non-ee in pre per does not bar a subsequent suit to recover interest.

Kahn v. Kahn (S.D.,N.Y.,1992) 801 F. Supp. 1237

Unlikely that a federal court would ever have the jurisdiction necessary to issue a domestic relations order. They can only add a Q to the DRO.

Laborers Pension Trust Fund for Northern California v. Levingston (N.D.Cal. 1993) 816 F. Supp 1496

State court has concurrent jurisdiction with federal courts and may qualify orders.

Layton v. TDS Healthcare Sys. Corp. (N.D. Ca., May 17, 1994) 1994 US Dist. LEXIS 6709

Plan that never receives judgment for qualification is justified in paying benefits to Participant. This was a pre-84 order and is marked by former spouse’s attorney’s failure-in 1990–to send the order or any written claim, return calls of plan which gave ample notice, etc. Neither Baker nor Family Code section 775 was cited since it appears no joinder was made and no written notification was given. If an order is not a qualified domestic relations order, its proponent is not a beneficiary.

In re the Marriage of Lehman (1998) 18 Cal. 4th 169;

955 P.2d 451, 74 Cal. Rptr. 2d 825 Modifications to retirement plan benefit the community. Service credit awarded as an incentive to retire early should be shared with the community.

Life Ins. Co. of North America v. Hunter (E.D., La., 1992) 782 F. Supp.47

Court may award prejudgment interest when insurer under ERISA profited from use of $509,000 for approximately three years before releasing the money. The court cited Restatement (Second) of Trusts aa applicable to recovery under ERISA.

In re Long (W.D., Mo., 1992) 148 Bankr. 904

Bankruptcy stay should be lifted so that QDRO may be entered with reference to other spouse debtor’s plan.

Lyeart Lumber CD. v. Hill 877 F.2d 692,693 (8th Cir. 1989)

Despite divame award to employee, his failure to change beneficiary from former spouse resulted in her receipt of benefits.

Estate of MacDonald (1990) 51 Cal.3d 262, 272 Cal.Rptr.

133, 794 P,2d 911 Transmutation requires express written declaration of intent.

McConnell v. MEBA Medical and Benefits Plan (9th Cir.. 1985) 759 F.2d 1984

Attorneys’ fees provisions of ERISA 502 [29 U.S.C. 1132] should be construed liberally in favor of a participant, or beneficiary since this construction is most consistent with the purpose of ERISA.

In re Marriage of Marshall (1995) 36 Cal.App.4th 1170.

After the pension has been disposed of in the court’s property division order, the use of the QDRO exception is not permitted to enforce a collateral property division provision from the parties’ marital settlement agreement. So consider retaining jurisdiction to reach qualified plans in event of default in payment of debts, etc.

Meek v. Meek (1992) 791 F. Supp. 154

Wife could not leave her community half of a defined contribution pension plan to her children upon her death prior to Husband,

Mendez v. TIAA and CREF (USDC, SDNY, 91 Civ 4873 (RPP)

6/16/93) CCH PPG 23,880N
The spouse of a deceased fund participant could recover additional attorney’s fees incurred in proceedings subsequent to her initial attorney’s fee award because ERISA permits the award of attorney’s fees at a court’s discretion for any ERISA action.

Menhorn v. Firestone Tire & Rubber Co.

(9th Cir., 1984) 738 F.3d, 1496, 1500, n.2 Congress vested jurisdiction over certain civil actions in state as well as federal court to give claimants more options end to ease the burden on the federal courts.

Metropolitan Life v. Benevent (S.D.,N.Y.) 1993 U.S. Dist.

LEXIS 14875 Life insurance plans under ERISA (a species of welfare plan) subject to QDRO’s. Order for husband to maintain his current life insurance policies in full force and effect and … [children] be designated as irrevocable beneficiaries was enough to make the order a QDRO and enforceable against plan.

Metropolitan Life Insurance Co. v. Fowler (D. C. Mich)

¶23,923N. The exception for QDROs regarding ERISA preemption applies to benefits under welfare plans.

Metropolitan Life Ins. Co. v. Person (E.D.Mich., 1992)

805 F.Supp. 1411 Welfare Plans under ERISA not subject to QDRO’s, including group life insurance.

Metropolitan Life Ins. Co. v. Pressley (6th Cir., 1996) 82 F. 3d 126)

ERISA preemption applies to naming of beneficiaries under welfare plans. The plan could not reject the named beneficiary former wife based on the state law under which she had waived her interest in such policies through a general waiver clause in the judgment. The judgment was found not to be a QDRO.

Miller v. Miller (1981) 117 Cal.App.3d 366, 172 Cal.Rptr.

745 Staniferth, J./DCA 4 Mere mention of pension in judgment doesn’t mean having litigated it. What wife’s lawyer knew irrelevant.

921 F. Supp 712. The court rejected the argument that Former Spouse’s beneficiary status should be disregarded and participant’s mother substituted, based on “substantial compliance” when participant had not done everything in his power to change the beneficiary designation after a divorce–but the case implies that the doctrine might have worked with better facts.

New Orleans Electrical Pension Fund v. Newman (E.D., La.,1992) 784 F. Supp 1233

ERISA preemption will not invalidate a killer-spouse statute.

In re Jim E. Norfleet (1993) IlL Ct. of App., 4th Dist.

CCH PPG section 23,880B After death of Participant, former spouse could not reach interest in 401(k) plan without QDRO and too late to get new one–divorce decree had provided that he pay her out of plan.

Northern Illinois Gas Co. v. Airco Indus. Gases

(7th Cir., 1982) 678 F.2d 270, 273.

Payne v. GM/UAW Pension Plan (E.D. Mich. 1996)

1996 U.S. Dist. LEXIS 7966 A/P signed divorce judgment assigning her a part of P’s pension, and P died about a month later. Thereafter A/P signed a QDRO (which had been signed by P before he died) stating that she was not to be treated as surviving spouse. When that QDRO was rejected by the plan, A/P obtained a nunc pro tunc QDRO to the date of the original judgment and took the words out which denied A/P surviving spouse status. The widow, married to a P for less than a year, did not qualify for the benefit and made no claim or objection. That nunc pro tunc order was not appealed but the plan rejected it with two main arguments. (1) Requires plan to pay more in actuarial value than plan provides. The plan could not prove this, and its argument was described as circular. (2) The order was a fraud on the court in that it completely contradicted the original divorce judgment. The plan could have intervened to have sought to vacate the order under state civil procedure statutes; failing to have done so on a timely basis, it may not assert such grounds.

Powell v. Commissioner (1993) 101 T.C. 32.

In a California case, even though the Husband paid Wife her share of the lump sum distribution in 1984 and 1985 per a pre-REA non-QDRO dated in 1984, Wife was held to be the distributee (not transferee) of her share; no alienation occurred because, under community property law, Flora was owner of the benefits.

Rodoni v. Commissioner (1995) 105 T.C. 3.

The tax court was not amused by Participant’s attempt to deposit his distribution in his Wife’s IRA’s: held that same did not constitute an eligible plan–at least as to Participant. Later attempt to get QDRO too late.

Schoonmaker v. The Employee Saving Plan of Amoco

Corporatfon and Participating Companies (7th Cir. 1993) 987 F.2d 410 A defined contribution plan violated ERISA (but did not violate fiduciary duty) by placing (investment direction) hold on Participant’s account prior to receiving a QDRO, because hold procedure not set forth in plan’s written procedures regarding QDRO’s.

Smith v. CMTA-IAM Pension Trust (9th Cir., 1984) 746 F, 2d

587 Attorneys’ fees provisions of ERISA 502 [29 U.S.C. 1132[ should be construed liberally in favor of a participant, or beneficiary since this construction is most consistent with the purpose of ERISA. (Excellent case for use in attorneys fees application.] Survivor benefits can be awarded as part of a Spousal support obligation. Case properly removed to federal court, properly not remanded, property transferred to another district. Interesting and well-reasoned dissent.