In a DC plan, the participant was divorced in 1991. He has no contact with his ex-wife. The ex-wife appeared in the divorce action pro se. Neither the judgment of divorce nor the Findings of Fact and Conclusions of law make any reference whatsoever to the participant's pension nor do they make an reference to any other property issues.

The participant wishes to receive his pension in a lump sum pursuant to the plan's terms. The member states in an affidavit that he cannot find his wife and does not know where she is and has not seen or spoken to her since November 1991. He further states that the last time he saw her he asked how she was doing and where she was living. She gave him her address and said she was thinking of going to Puerto Rico becuase her health wasn't good and because she had family there.

He has since gone to the last address where she lived and a few tenants said that the last time they saw her she said was moving to Puerto Rico. He has since provided the fund with an affidavit from a newspaper in Puerto Rico stating that he put a an ad in the newspaper which ran for two days asking his ex wife to contact him and stating that it was urgent. There has been no response to this ad.

Can the fund pay the participant his lump sum or does he need to do more to find his ex wife?

Assuming he could produce documentation of the divorce (which your question suggests), what makes you think the participant has to do anything more to get a distribution at any time in any form permitted by the plan for an unmarried person?

As a general rule since my client is very concerned about doing things "by the book", we have tried to get waivers when the divorce documents are silent to avoid any future problems such as an ex spouse stating that he/she had no knowledge of the plan and trying to make a later claim for the money or that he/she was entitled to money.

What "book" is he going by? At best, someone is wasting a lot of time and money; at worst, he (or you?) is imposing a condition on receiving benefits that doesn't exist (not to mention stirring the pot with the ex-s, and I hope that this misguided advice did not result in anyone having to buy out the ex's signature).

Would your opinion change if the beneficiary card listed the ex spouse as the beneficiary and that it had not been changed after the divorce.

The employer/plan administrator shouldn't worry about what preceded the divorce, or why there is no QDRO.

If the plan is subject to the J&S requirements, or if the plan is not subject to those requirements but requires a J&S anyway for participant and spouse unless spouse consents to something, the only thing the employer/plan administrator must do is to satisfy itself that they are no longer married.

No.

I second Bird and also suggest that it is a breach of fiduciary duty to hang up a distribution because of an inappropriate notion of what is required for distribution.

I dont understand the revalence of the bene card since that only pertains to a death distribution, not to payment to a non married spouse. If the payment is from a PS/401k plan the scope of the review is whether the participant is divorced. It is not unusual for spouses to receive no benefits in a divorce b/c they may elect to receive other assets, house, car etc. I dont see how the ex spouse can have a colorable claim to benefits if the Divorce decree did not award any pension benefits. Asking for a spousal waiver is likely to invite a claim for benefits against the plan where no claim exists.

JD698 - so if a participant tells you they were never married, do you have them sign an affidavit saying they were never married and have them put an ad in the paper asking any and all spouses or prior spouses to step forward!! Seems like this participant should contact the DOL since the plan is delaying the distribution for unnecessary reasons.

Kinda like asking for a doctor's note to confirm the sex of the participant.