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Aftertax Contributions Can Save NUA

When plan assets contain employer securities, Qualified Domestic Relations Orders can be particularly problematic.

Helen Modly, 11/19/2009

Divorce is messy. Even once the settlement agreement has been reached, signed and filed with the court, our client still faces one remaining hurdle; the dreaded Qualified Domestic Relations Order (QDRO). When plan assets contain employer securities, QDROs can be particularly problematic.

Why a QDRO is Needed
A QDRO is required to transfer balances in retirement plans subject to ERISA from the plan participant to his ex-spouse. These legal documents are drafted by attorneys to describe how and when the division of plan assets is to take place. It is filed with the administrator of the retirement plan, usually the employer, who must accept it as being valid and conforming with the plan's rules. Then the administrator divides the ex-spouse/plan participant's account as directed by the QDRO and establishes a new account in the plan registered to the receiving spouse as an alternate payee.

What Does a QDRO Do?
In most cases, ex-spouses are entitled to all the investment or distribution options that would have been available to the plan participant. However, in many cases, these options are only available if actually spelled out in the QDRO. Many larger plans have sample QDRO language available for attorneys to use as a guide to drafting a valid document for that plan. In some cases, this sample language is more restrictive to the receiving spouse than the law allows, but the language used in the QDRO will prevail, if it is accepted. For example, it is not uncommon for larger employers to eliminate the ability for an alternate payee to receive an in-kind distribution of employer stock from the plan, unless specifically provided for by the QDRO.

QDRO's are a complex set of instructions. They tell the plan administrator how to divide the account such as each individual investment, pro-rata, or all the employer stock to one spouse and the balance of the assets to the other. QDROs have to address what happens to gains and losses in the investments from the date of agreement to the date of division, as well as establishing the actual date of valuation/division. They also have to address how to handle any outstanding participant loans.

The plan administrator is responsible for interpreting and effecting the division of plan assets per the QDRO. They can impose various conditions such as requiring that all plan assets must be distributed/rolled over within 60 days of creating the alternate payee account. To see how this can all coalesce into a perfect storm, let me tell you a story.

Our Client
She came to see us with a signed and filed separation agreement. Her attorney had already prepared a draft of the QDRO, and she wanted to discuss what to do with the retirement assets once they became hers. Her first inclination was to leave them with the plan since she didn't have much investment experience. Then she mentioned how she would need to use some of them to pay her attorney's fees and to replace the furniture her husband took as part of their settlement.

We looked over her QDRO and it clearly spelled out that she was to maintain all the investment and distributions options her husband had as well as keeping the same cost basis for all employer securities to be transferred. It did mention an outstanding participant loan, but she assured us that her husband had repaid the loan before the settlement agreement was signed. The date of valuation was stated as Dec. 1, 2008, and she was to receive the entire balance of his account as of that date, subject to any gains or losses. The QDRO was filed and we began drafting an investment policy for her.

Now the rub.

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