Model Separation Agreement Language For Dividing Defined Benefit Plans Using A Marital Portion Approach (Page 3 of 3) in pdf

inadvertently pays to the Participant any benefits that are assigned to the Alternate Payee

pursuant to the terms of this Order, the Participant shall immediately return such payments to

the plan administrator. Upon receipt of the repayment, the plan administrator shall issue an

amended Form 1099 to the participant so that he is not liable for any income taxes associated

with the alternate payee's assigned share of the benefits.

9. A QDRO Shall Issue: In order to effectuate the Assignment provisions of this Separation

Agreement regarding the division of the Defendant's retirement benefits under the Plan, a

QDRO shall be prepared in accordance with the terms of this Agreement and submitted to the

Plan Administrator for processing. Notwithstanding the previous sentence, in the event that

the Defendant predeceases the Plaintiff prior to the date that a QDRO is officially approved by

the Plan Administrator, it is hereby ordered that the terms and provisions of this Judgment

Entry/Agreement shall, in and of itself, be deemed a QDRO by such Plan Administrator and

processed accordingly pursuant to the survivor language in Item 6.

10. Continued Jurisdiction: The court shall retain jurisdiction to amend the provisions

contained herein in order to establish and/or maintain the qualified status of the QDRO under

ERISA, and to effectuate the original intent of the parties. The court shall also retain

jurisdiction to enter such further orders that are just, equitable, and necessary to enforce,

secure, and sustain the benefits awarded to the Plaintiff, in the event that the Defendant

and/or the Plan Administrator fail to comply with any or all of the provisions contained herein.

Such further orders may also include, but not be limited to, nunc pro tunc orders or orders that

recharacterize the benefits awarded under the Plan to apply to benefits earned by the

Defendant under another plan, as applicable, or orders that award spousal or child support, to

the extent necessary to carry out the intentions and provisions of this Order.

11. Actions by Defendant: The Defendant shall not take any actions, affirmative or otherwise,

that can circumvent the terms and provisions of this Agreement, or that could diminish or

extinguish the rights and entitlements of the Plaintiff as set forth herein or under the terms of

the QDRO. Should the Defendant take any action or inaction to the detriment of the Plaintiff,

such Defendant shall be required to make sufficient payments directly to the Plaintiff to the

extent necessary to neutralize the effects of his or her actions or inactions and to the extent of

the Plaintiff's full entitlements hereunder.

Again, it should be obvious to all attorneys what the adverse consequences can be if the QDRO

is not prepared in a timely fashion. The QDRO should be prepared at the same time as the

Separation Agreement and then incorporate it by reference directly into the agreement. This

will avoid confusion down the road, as well as irate correspondence from an attorney for the

participant when this language is included in a QDRO drafted later. An attorney who does not

incorporate the QDRO by reference must, at the very least, include comprehensive and

definitive language in the Separation Agreement when it comes to dividing the participant's

retirement benefits.

Model Separation Agreement Language For Dividing Defined Benefit Plans Using A Marital Portion Approach Page 3