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SURVIVOR BENEFITS

AMENDING A FINAL JUDGMENT OF DIVORCE

NOT ALWAYS POSSIBLE

Consider the following scenario.

Dick and Jane divorce in 2009. Dick was 48 at the time of his divorce, and actively employed by Bingo Communications. In 2011 Dick married Lucretia (this fact will be critical).

The Property Settlement Agreement did not specifically award Jane a Former Spouse Survivor Annuity from Dick's Qualified Defined Benefit Plan. This oversight becomes a concern to Jane when in 2013 she learns that Dick's health has deteriorated.

In April of 2013 Jane reconnects with her family attorney seeking to amend the settlement to include survivor rights. The parties attorneys discuss this amendment and there is general agreement that it was the intent of the parties at the time of settlement to award Jane a Former Spouse Survivor Annuity.

Based on Dick's acquiescence and pressure from Jane, her attorney assures her that he can secure for Jane a Former Spouse Survivor Annuity. Jane's attorney prepared amended Domestic Relations Order containing an assignment to Jane of Survivor Annuity Benefits and submitted the amended Domestic Relations Order to Bingo Communications for formal Qualification.

Bingo Communications refused to Qualify the proposed Amended Domestic Relations Order. The Plan's Administrator advised Jane's attorney that Survivor Rights became Lucretia's separate property one year subsequent to her marriage to the firm's employee, Dick.[1] The discussion that follows is based in part on a well-reasoned Florida decision. [2]

Once the final judgment awarded each party the interest in his or her own pension plan, those assets were no longer marital property but the sole property of the individual spouse. Thus, the husband Wife had no marital property rights in the Husband's wife's pension plan. To order a QDRO on the Husband's wife's pension plan is to create an interest in that asset which the final judgment extinguished. That is tantamount to a modification of the final adjudication of property rights in a divorce case… [3]

Once the final judgment is entered, there are no longer marital property rights, only individual property rights.

Another line of reasoning in support of the argument that it is unlikely that an attorney can modify a Qualified Domestic Relations Order in order to provide a Former Spouse Survivor Annuity is found in an often cited 4th Circuit Opinion (and its progeny). [4]

The following language is found in Hopkins.

Determining whether a participant's current spouse has a vested interest in the Surviving Spouse Benefits is a question of first impression in the federal courts. Regrettably, ERISA does not explicitly state when a current spouse's interest in the Surviving Spouse Benefits vests. However, after carefully reviewing the overall framework of ERISA, especially the provisions governing joint and survivor annuities, we conclude that the Surviving Spouse Benefits vest in the participant's current spouse on the date the participant retires. Emphasis Mine.

We find that…the Surviving Spouse Benefits vest in the spouse married to the participant on the date of retirement.

Conclusions.

Based on existing case law it becomes the duty of the attorney representing the Alternate Payee to insert into the Final Judgment of Dissolution of Marriage and ensuing Domestic Relations Order a clear assignment of a Former Spouse Survivor Annuity to her or his client.

An attorney's failure to provide a Former Spouse Survivor Annuity insertions in the Final Judgment of Dissolution of Marriage and Domestic Relations Order significantly enhances the risk of loss of benefits to this Alternate Payee.



[1] See 26 U.S.C.417(d, which provides in relevant part:

Survivor annuities need not be provided if participant and spouse married less than 1 year.

[2] See. DeSantis v. DeSantis, Ct. of App. Of Fl. 4th Dept., 714 So. 2d 637. July 29, 1998.

[3] In DeSantis, the Wife was the employee with a pension. To conform the citation to this article, I have changed the status of the spouses. The strikeout represents deletion and the bold represents substitution for clarity.

[4] See. Hopkins v. AT&T, U.S. Court of Appeals, 4th Circuit. 105 F.3d 153.January 24,1997