A participant in a qualified defined benefit plan and his/her former spouse were divorced in 1982 (i.e. pre-REA), and the Separation Agreement (incorporated into the 1982 final decree of divorce) awards a portion of the participant's benefits to the former spouse, payable when the participant begins receiving his/her benefits at age 65. The participant turns 65 in 2001 and the former spouse has requested her benefits as specified in the Separation Agreement. In determining whether it must comply with the terms of the Separation Agreement, must the Plan Administrator consult pre-REA law only, post-REA law only or may the Plan Administrator require the parties to the Separation Agreement to obtain a QDRO now?

Under the transition rule in the Retirement Equity Act (which created QDROs), section 303(d), PL 98-397, a plan may accept a domestic relations order entered before 1985 and the plan may waive any of the formal QDRO requirements. The plan is not required to accept the order and may require that the order meet the QDRO requirments. The plan shoud make sure that it can interpret and administer the order to its satisfaction before accepting it. You should also check the plan's written QDRO Procedures to see if they say anything about pre-REA orders. I could show you some that address the issue. If they address the issue, they probably pick up the transition rule because it is so practical. If they don't address the issue, you have to consider if the language of the Procedures precludes the administrator from accepting the order without the QDRO formalities. Written QDRO procedures can be amended.