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Sample DOMESTIC RELATIONS ORDER (FOR EDUCATIONAL PURPOSE ONLY …NOT TO BE USED IN LITIGATION)

At a Trial Term, Part ____ of the                                                                                    Supreme Court of the State of New York,                                                                                    held in and for the County of Suffolk at the                                                                                    Courthouse located at 400 Carleton                                                                                    Avenue, Central Islip, New York, on the___                                                                                    day of ___________, ______

 

PRESENT:  ____________________________

J.S.C.

__________________________________X

 

Plaintiff,

DOMESTIC RELATIONS

ORDER

against

Index No.

I.A.S. Justice

Defendant.

_________________________________X

This Order is an integral part of the ______________________, Judgment of Divorce (“Judgment”) entered by the Court on _____________________ approving an absolute divorce of the parties in this case.  It relates to the provision of ________________________ [INSERT “child support,” “alimony payments” AND/OR “marital property rights,” AS APPROPRIATE] to a _____________________ [INSERT “spouse,” “former spouse,” “child” AND/OR “other dependent,” AS APPROPRIATE] of the Participant (defined below).  It is the intent of the Court that the provisions of this Order operate as an effective assignment of a portion of the interest of ________________________ (the “Participant”) in the ____________ Profit Sharing and Savings Plan and Trust (the “Plan”) as hereinafter set forth.

 

WHEREAS, the Participant has a vested accrued benefit under the terms of the Plan; and

 

WHEREAS, it is the intent of the Court that the provisions of this Order operate as an effective assignment, for all purposes, of the interest of the Participant in the Plan to the extent provided herein, to _____________________ (the “Alternate Payee”) in accordance with both state and federal law; and

 

WHEREAS, the entry of a qualified domestic relations order (“QDRO”) as defined in Section 414(p) of the Internal Revenue Code of 1986, as amended (the “Code”), and Section 206 (d) (3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), is required to provide for the division and disposition of the Participant’s benefit under the Plan and to grant the Alternate Payee rights to such benefit on the terms set forth in such QDRO; and

 

WHEREAS, this Order is intended to be a QDRO;

 

NOW, THEREFORE,  on the motion of ________________, Attorney for the _________________ [INSERT “Plaintiff” OR “Defendant”], with due notice having been given, and this Court having jurisdiction of the parties to and the subject matter of this cause, and the Court being fully advised in the premises, this Court finds it is hereby ORDERED as follows:

 

1.         Amount To Be Paid To Alternate Payee.   Pursuant to Sections 401 (a) (13) and 414 (p) of the Code and Section 206 (d) (3) of ERISA and in accordance with the Domestic Relations Law of the State of New York, the Alternate Payee is hereby awarded [SELECT “A” OR “B” BELOW”]

(A)       $_______________ of the vested accrued benefit of the Participant under the Plan; or

(B)       _______% of the Participant’s vested accrued benefit under the Plan, determined as of ______________ (the “Determination Date”) [INSERT THE DATE AS OF THE LAST DAY OF A CALENDAR QUARTER COINCIDING WITH, OR IMMEDIATELY FOLLOWING:  (1) THE DATE OF THIS ORDER, OR (2) OTHER DATE THAT BENEFITS ARE DIVIDED]

but in all events not in excess of 100% of such vested accrued benefit, as determined on the valuation date coinciding with or immediately following the date that this Order is determined under Plan procedures to be a QDRO, reduced by any withdrawals after such date and the outstanding balance of any Plan loans to the Participant determined as of such date).  As of the valuation date under the Plan coinciding with or immediately following the date that this Order is so determined to be a QDRO (the “Allocation Date”), _______________________ [INSERT “the foregoing amount” OR “the percentage specified above as of the Determination Date” AS APPROPRIATE] awarded to the Alternate Payee shall (i) be taken proportionately from the assets of each investment fund (based on the ratio of the Participant’s fund balance to his total fund balances) in which the Participant has a balance; (ii) be allocated to and held in a separate account under the Plan in the name of the Alternate Payee pursuant to procedures provided for under the Plan; and (iii) be administered under the Plan and be subject to all of the terms of the Plan.  As soon as administratively feasible after the Allocation Date, any undistributed portion of the Alternate Payee’s Interest under the Plan shall be invested in accordance with the terms of the Plan.  The separate account shall be credited with any income, earnings and other appreciation, as well as losses and depreciation, attributable to the assets of such account.

As of the Allocation Date, the value of the Participant’s vested accrued benefit under the Plan shall be reduced by the value of that portion of the Participant’s vested accrued benefit awarded to the Alternate Payee hereunder.  All Plan benefits not awarded to the Alternate Payee herein are awarded to the Participant and the Alternate Payee is divested of any and all right, title and interest therein.

 

2.         Time of Payment To The Alternate Payee.   In no event shall payment of the interest relating to the Participant’s vested accrued benefit awarded to the Alternate Payee hereunder (“Alternate Payee’s Interest”) be made to the Alternate Payee prior to the date as of which a determination is made by the Plan Administrator or a court of competent jurisdiction that this Order is a QDRO within the meaning of Section 414 (p) of the Code and Section 206 (d) (3) of ERISA.

Payment of the alternate Payee’s Interest shall be made, or, if applicable, commence as soon as administratively feasible after _________________________ [SELECT (A), (B), (C), OR (D) BELOW):

(A)       the date that this Order is determined to be a QDRO by the Plan Administrator.

(B)       _____________ [INSERT A DATE OR DESCRIPTION OF A DATE AFTER THE DATE THAT THE ORDER IS DETERMINED TO BE A QDRO BUT BEFORE THE DATE THAT THE PARTICIPANT ATTAINS AGE 65];

(C)       the date that the Participant attains age 65; or

(D)       the later of the date that the Participant attains age 65 or the date that the Participant retires under the terms of the Plan.

 

Notwithstanding the foregoing stated above regarding the timing of benefit payments to the Alternate Payee, the Plan Administrator shall make a lump sum distribution to the Alternate Payee in full settlement of an Alternate Payee’s Interest under the Plan, without the Alternate Payee’s consent, as soon as administratively feasible after the Order is determined to be a QDRO, if the lump sum value of the Alternate Payee’s Interest at the time of distribution is not more than $ 3,500.00.

The first payment made under this Paragraph 2 shall include any amounts and the interest on such amounts which were treated as segregated amounts under the Plan pursuant to Section 414 (p) (7) of the Code and Section 206 (d) (3) (H) of ERISA, unless such segregated amounts and the interest thereon have been distributed previously in accordance with the terms of Section 414 (p) (7) (C) of the Code and Section 206 (d) (3) (H) (iii) of ERISA.  In any event, payment of the Alternate Payee’s Interest shall be made in accordance with the requirements of Section 401 (a) (9) of the Code and the regulations thereunder as applied to the Plan.

 

3.         Form Of Payment To Alternate Payee.  Payment of the Alternate Payee’s Interest shall be made in a form in which benefits may be distributed to the Participant under the Plan, other than in the form of a joint and survivor annuity with respect to the Alternate Payee and a subsequent spouse of the Alternate Payee.

The Alternate Payee’s Interest shall be paid to the Alternate Payee in [SELECT (A), (B), (C) OR (D) BELOW):

(A)       a single lump sum;

(B)       ____________ [SELECT “quarterly,” “semi-annually,” OR “annually”] installments over ______ years (not to extend beyond the Alternate Payee’s life expectancy or the joint and survivor life expectancy of the Alternate Payee and the Alternate Payee’s beneficiary);

(C)       A combination of a lump sum payment and installments as described below: __________________________________________________________________________; or

(D)       _________________________ [INSERT, IF APPLICABLE, ANOTHER FORM OF PAYMENT AVAILABLE TO THE PARTICIPANT WITH RESPECT TO THE PORTION OF THE PARTICIPANT’S ACCOUNT THAT IS ATTRIBUTABLE TO PARTICIPATION IN A PLAN THAT MERGED INTO THE PLAN PLUS A FORM DESCRIBED ABOVE THAT APPLIES TO THE REMAINING PORTION].

 

Notwithstanding the foregoing stated above regarding the various forms of benefit payments to the Alternate Payee, the Plan Administrator shall make a lump sum distribution to the Alternate Payee in full settlement of an Alternate Payee’s Interest under the Plan, without the Alternate Payee’s consent, as soon as administratively feasible after the Order is determined to be a QDRO, if the lump sum value of the Alternate Payee’s Interest at the time of distribution is not more than $ 3,500.00.

 

4.         Death Of The Participant.    It is the intent of the parties that the amount of benefits payable to the Alternate Payee will not be affected in any way by the remarriage or death of the Participant.  Accordingly, the death of the Participant prior to the payment of all of the benefits to which the Alternate Payee or her named beneficiary is entitled shall not alter the obligation hereunder to distribute the benefits granted to the Alternate Payee or her named beneficiary.

 

5.         Death of Alternate Payee.  If the Alternate Payee dies before all of the Alternate Payee’s Interest is paid to the Alternate Payee under this Order, the named beneficiary (or beneficiaries) of the Alternate Payee shall be paid the balance of the benefits.  Moreover, the death of the Alternate Payee prior to determination that the Order constitutes a QDRO shall not alter the obligation hereunder to distribute the benefits granted to the Alternate Payee or the named beneficiary of the Alternate Payee.  For purposes of this Order, the term “named beneficiary” shall mean any individual or entity properly designated in writing to the Plan Administrator by the Alternate Payee in accordance with the terms of the Plan, or, in the absence of any such designation, the beneficiary (ies) of the Alternate Payee provided for under the provisions of the Plan.  Add distributions to the Alternate Payee or her named beneficiary shall be made in compliance with the provisions of Section 401 (a) (9) of the Code.

 

6.         No Increase In Benefits.  Benefits paid to the Alternate Payee from the Plan in accordance with the terms of this Order shall not exceed the benefits to which the Participant is entitled under the Plan.

 

7.         Benefits Payable To Another Alternate Payee.  The Alternate Payee shall not be entitled to benefits with respect to the Participant under the Plan which are required to be paid to another Alternate Payee under another order previously determined to be a QDRO with respect to the Participant’s vested accrued benefit under the Plan.

8.         Successor Plans.  In the event that this Order is determined to be a QDRO, this Order shall remain qualified with respect to any successor plan or plans to the Plan.

 

9.         Conflict.  In case of a conflict between the terms of this Order and the terms of the Plan, the terms of the Plan shall prevail.  For example, if the Plan is terminated and all benefits are distributed, amounts due from the Plan under this Order shall be distributable in accordance with the Plan provisions regarding termination.

 

10.       Plan Termination.  In the event of the termination of the Plan, any annuity contract issued with respect to the Participant’s vested accrued benefit under the Plan or with respect to the Alternate Payee’s Interest under the Plan shall be subject to the terms of this Order.

 

11.       Addresses.  The name, current mailing address, social security number and date of birth of the Participant are as follows:

 

 

 

 

 

Addresses.    The name, current mailing address, social security number and date of birth of the Alternate Payee are as follows:

 

 

The Alternate Payee shall keep the Plan Administrator informed of his or her current address.  Each notice of change of address shall be made in writing to the Plan Administrator addressed as follows (or to such other address as the Plan Administrator may specify by a written notice to the Alternate Payee):

___________________________

 

 

12.       Liability.  The Alternate Payee (or, in the event of the death of the Alternate Payee, the beneficiary (ies) of the Alternate Payee, if any) shall hold the Plan and its sponsor and fiduciaries harmless from any liabilities which arise from following this Order as a QDRO, including all reasonable attorneys’ fees which may be incurred in connection with any claims which are asserted because the Plan honors this Order as a QDRO.

 

13.       Taxes.  If an Alternate Payee is the spouse or former spouse of the Participant, then the Participant shall not include such benefit distributions to such Alternate Payee in the Participant’s gross income.  Accordingly, such Alternate Payee (or, in the event of the death of the Alternate Payee, the beneficiary (ies) of the Alternate Payee, if any) shall be solely responsible for, and bear the burden of, all taxes incurred in connection with all payments of Plan benefits made to any such person pursuant to this Order.

 

14.       Release Forms.  The Participant and Alternate Payee shall sign any and all instruments required by the Plan Administrator and/or his agents to release said funds to the other party as herein ordered by this Court within thirty (30) days after such request is made in writing by the Plan Administrator or its agents.

 

15.       Attorney Fees.  The Plan and its sponsors and fiduciaries shall not be responsible for any attorney fees incurred by the Participant or the Alternate Payee in connection with obtaining or enforcing this Order.

 

16.       Jurisdiction Retained.  This Court shall retain jurisdiction to make changes in this Order to the extent necessary to conform this Order to the requirements for a QDRO under Section 414 (p) of the Code and Section 206 (d) (3) of ERISA.

 

Dated: ______________, New York

____________________, _______

ENTER:

_________________________________

J.S.C.

APPROVED AS TO FORM AND CONTENT:

________________________________                    __________________________________

[NAME OF ATTORNEY]                                             ______________

[STREET]                                                                               ______________

[CITY, STATE, ZIP]                                                    ______________

[PHONE NUMBER]                                                     ______________

Attorney for:  __________________                           Attorney for:  ________

 

 

ATTORNEY ADVERTISING: Information herein and is not intended to be, legal advice. This sample legal document is provided as part of a free public educational service by Zachary Irtaza Riyaz, Esq., attorney at law in the State of New York (Westhampton – Tel. 516-234-0348), for reference only. IT IS NOT INTENDED TO GIVE LEGAL ADVICE ABOUT A SPECIFIC LEGAL PROBLEM, NOR DOES IT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. Due to the importance of the individual facts of every case, the generalizations I make may not necessarily be applicable to any particular case. Statutes and codes such as Domestic Relations Law (DRL)are frequently amended and may affect the validity of the above legal document and no representation is made that the above sample is going to be enforceable in the future.Changes in the law could at any time make parts of this web site content obsolete. Updated statutes and codes may be available at the New York State Legislature Website. No statute or sample legal document should be relied on without understanding controlling case law which may further interpret it. THIS INFORMATION IS PROVIDED WITH THE UNDERSTANDING THAT IF LEGAL ADVICE IS REQUIRED THE SERVICES OF A COMPETENT ATTORNEY WILL BE CONSULTED.

 

 

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