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CCH® PENSION — 03/10/11

Orders issued under tribal law by family court of Navajo Nation were not DROs for ERISA purposes

Domestic relations orders (DROs) issued under tribal law by a family court of the Navajo Nation were not orders "made pursuant to a State domestic relations law" for purposes of the ERISA's qualified domestic relations order (QDRO) requirements, according to EBSA Advisory Opinion No. 2011-03A. Thus, ERISA did not preempt the application of state insurance laws to the programs.

ERISA §3(10) does not include Indian tribal governments in its definition of "state." However, EBSA noted that nothing in ERISA §206(d)(3) requires that a domestic relations order be issued by a state court. EBSA has previously concluded that a division of marital property in accordance with a proper final order of any state authority recognized within the state's jurisdiction as being empowered to achieve such a division of property pursuant to state domestic relations law would be considered a "judgment, decree, or order" for purposes of ERISA §206(d)(3)(B)(ii). Thus, it was EBSA's opinion that a tribal court order could meet the requirements of ERISA §206(d)(3)(B)(ii) if the order was treated or recognized as a "judgment, decree, or order . . . made pursuant to a State domestic relations law" by the law of a state that could issue a valid DRO with respect to a participant and an alternate payee. EBSA could not conclude that the instant orders were "domestic relations orders" within the meaning of ERISA §206(d)(3)(B)(ii). There was no indication that the state in question recognized or treated orders of the family court of the Navajo Nation as orders issued pursuant to the state's domestic relations law.

For more information, visit http://www.wolterskluwerlb.com/rbcs.

For more information on this and related topics, consult the CCH Pension Plan Guide, CCH Employee Benefits Management, and Spencer's Benefits Reports.

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