Here it is June 27, 2010 and we are still on hold waiting a determination by the Federal Court on the motion to dismiss. My friends kid me because since 2005 I have picked my travel times based on court dates. Or more accurately, when I think I will have a court date. They come and go. Well I’m still amazed that any person can carry a lawsuit into a Federal Court and be heard. What a country!!!
Do to the lack of law-suit news I’ve checked out the sample 332 pension DRO. Its on the internet at ibew332Benefits.com
Paragraph 3: “Spouse is acknowledged to have an ownership interest in the benefits payable”. This was true for me because we were unable, during the divorce, to agree on a value of the pension. I did not buy her out.
Paragraph 4: “The community benefit is the portion of the benefit payable by each Plan which is attributable to Employees employment during the marriage.” This is accepted by ERISA and California Community Property law.
Paragraph 5: “The community benefit under part A shall be calculated by multiplying the total benefit payable to the employee by a fraction. The numerator of the fraction is the Total Years during the marriage for which Employee receives credit under Part A. The denominator is the total years for which the employee receives credit under Part A.” This formula was calculated incorrectly by the Plan in my domestic relations order.
First, they miss-calculated the fraction, although it is wrong in my favor. Second, in the IBEW 332 defined-contribution plan, the community portion is 100% of earnings during the marriage and the spouse portion is 50% of the community. Or to be simple, the spouse gets half of the benefit (plus enhancements) earned during the marriage.
The Plan sites the case of Lehman v Lehman decided May 28, 1998 by the California Supreme Court. The Lehman pension was a defined benefit Plan, the IBEW 332 pension Plan A is a defined contribution Plan. By using the Benefit formula in the Contribution Plan the community property law of California is ignored. And, IRISA demands that spousal benefits derive from benefits contributed during the marriage so IRISA is also ignored. And in my case, both ERISA and California, expect me to get at least half of the pension benefit. I didn't in the Plan calculated DRO.
Editorial comment: The plan learned in 2007, in the published California Superior Court Appeal of Gray v Gray, that the sample DRO is wrong. They were informed by Mark Lipton. But, the sample DRO has not changed.