THE ILLEGAL SEIZURE OF RETIREMENT AND PENSION ACCOUNT ASSETS
THE ILLEGAL WHOLESALE SEIZURE OF RETIREMENT ACCOUNTS AND PENSION ACCOUNT ASSETS THAT WERE TAKEN BY A COURT IN COMPLETE VIOLATION OF ERISA ANTI-FORFEITURE AND ANTI-ALIENATION PROTECTIONS
The Racine County Court Violated ERISA; Larsen's Funds Were Protected Under ERISA.
Larsen relies on Blue v. UAL Corp., 160 F.3d. 383, 384, which states: Most contemporary pensions are covered by the anti-forfeiture and anti-alienation clauses of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §1056(c) and (d)(1). See Guidry v. Sheet Metal Workers National Pension Fund, 493 U.S. 365, 107 L.Ed.2d 782, 110 S.Ct. 680 (1990); In re Baker, 114 F.3d. 636 (7th Cir. 1997). Pensions must be distributed strictly according to the terms of each plan, and state laws that permit or require payment to persons (or in amount) other than those specified in the plan are ineffective. 29 U.S.C. §1144(a). Even state rules that establish rights of spouses and children to financial support, identify community property of marriages, or deal with distributions of decedents'' estates, must yield to the terms of the plan. Boggs v. Boggs, 520 U.S. 833, 117S.Ct. 1754, 138 L.Ed.2d 45 (1997). ERISA authorizes only two exceptions to this rule. First, a participant may make a revocable assignment of up to 10% of future benefits. 29 U.S.C. §1056(d)(2). Second, a Qualified Domestic Relations Order (QDRO) may require payment to or for the benefit of the participant's family. 29 U.S.C. §1056(d)(3). In Larsen's situation, NO such QDRO has ever been ORDERED, ISSUED, or EXISTED with regard to Larsen's retirement assets, or any other funds for that matter, thereby grievously violating the anti-forfeiture and anti-alienation clauses of the Employee Retirement Income Security Act of 1974 (ERISA).
Larsen further relies on Day v. Wall, 112 F.Supp.2d 833 which states: Under the anti-forfeiture and anti-alienation clauses of ERISA, 29 U.S.C.S. §1056(d)(1), and the Internal Revenue Code, 26 U.S.C.S. §401(a)(13), benefits may not generally be assigned or alienated. Benefits, however, may be transferred to a participant's former spouse to effectuate the terms of a divorce settlement as long as the transfer is authorized by a qualified domestic relations order. 29 U.S.C.S. §1056(d)(3)(A). It is important to note two things here:
1) Again, NO QDRO has ever existed. (Only the three circuit court orders [R91, R93, R110]
exist.)
2) The Racine court's ILLEGAL WHOLESALE SEIZURE was NOT being done to "effectuate the
terms of a divorce settlement". The divorce had been done and settled MANY years
earlier. The retirement assets seized, both Thrift Savings Plan and IRA, were very
specifically the POST JUDGMENT PROPERTY of Larsen. As such, Larsen had every right
to use said funds for the purpose of procuring counsel, but has been denied and deprived
of that right for literally years now. This outright seizure, in and of itself, violates the
Employee Retirement Income Security Act (ERISA).
The Circuit Court Orders Were NOT QDRO's, So They Are INVALID!
Under the Employee Retirement Income Security Act (ERISA), benefits may not be assigned unless the transfer is authorized by a qualified domestic relations order. 29 U.S.C.S.. §1056(d)(1), (3)(A). Day v. Wall, 112 F.Supp.2d 833.
The original June 30, 2004 Circuit Court Order (signed July 30, 2004)[R91], the September 14, 2004 Amended Circuit Court Order [R93], and the November 15, 2004 Circuit Court Order Appointing Receiver [R110] ALL therefore blatantly violate the anti-forfeiture and anti-alienation clauses of the Employee Retirement Income Security Act of 1974 (ERISA). The requirements of ERISA dictate that these orders must be QDRO's. None of these Orders were QDRO's! Again, NO such QDRO has ever existed. As such, the three (3) Racine County Circuit Court Orders have been INVALID ab initio.
The Racine County Circuit Court Orders Had NO "Qualifying Legal Process".
The Racine Court's Orders, [R91, R93, R110], never qualified as a Qualifying Legal Process that would have been accepted by the Thrift Savings Plan.
5 C.F.R. §1653.12 very specifically states under section (c):
"The following legal processes are not qualifying:"
(c)(4) A legal process requiring the TSP to make a payment in the future; and
(c)(5) A legal process requiring a series of payments.
The original June 30, 2004 Circuit Court Order (signed July 30, 2004)[R91], the September 14, 2004 Amended Circuit Court Order [R93], and the November 15, 2004 Circuit Court Order Appointing Receiver [R110] ALL require things that cannot be complied with as they each distinctly violate 5 C.F.R. §1653.12. All three Orders have therefore been INVALID ab initio, and should be declared such.
The Racine County Court Allowed Post Judgment Mixing of Child Support With Property Division.
The Racine Court's very Order, in and of itself, blatantly violated Wis. Stat. §767.255 (2004). The order constituted nothing other than permitting the original petitioner to "double dip" by mixing up child support with property division post judgment. The remains of what was in the retirement assets already refenced, was CLEARLY post judgment property of Larsen. The same is true with respect to the assets of "Magnum Opus Investments Deed of Settlement Dated November 2, 2000", which were also seized. The assets that were placed into this trust were ALL awarded to Larsen at the time of the divorce. Not to mention the fact that ALL were premarital assets of Larsen as well for many, many years. There was never anything in dispute as to these assets, as can be clearly seen from the settlement reached, which is part of the record. [R34, R35]. Then under the guise of providing future child support, the court sought to seize and commandeer these assets with NO DUE PROCESS whatsoever. Larsen had NO REPRESENTATION during this wholesale seizure, and was even prevented from obtaining such by the court. Larsen should have been previously, and clearly now should be, allowed to access his funds for the sake of defending himself against a criminal allegation. Despite having hundreds of thousands of dollars and wanting to retain Counsel of his Choice, Larsen is instead appointed State Public Defenders and attorneys from the Federal Defender Services.
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¹ The circuit court Order pertaining specifically to Larsen's retirement assets is in direct violation of the anti-forfeiture and anti-alienation clauses of the Employee Retirement Income Security Act of 1974 (ERISA). The court is BARRED from ever entering such an Order as it chose to do in this situation.