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David isn't referring to an IRS audit but the fact even a plan with fewer then 100 participants can need an audit any more if its assets are the wrong kind of assets. https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/faq_auditwaiver.pdf

Well, of course you already know that the participant count is the most visible, but not the only, parameter to determine whether an audit is required.

Point the advisor to this IRS website https://www.irs.gov/retirement-plans/retirement-plans-faqs-regarding-required-minimum-distributions#5 This FAQ I quote: Can an account owner just take a RMD from one account instead of separately from each account? An IRA owner must calculate the RMD separately for each IRA that he or she owns, but can withdraw the total amount from one or more of the IRAs. Similarly, a 403(b) contract owner must calculate the RMD separately for each 403(b) contract that he or she owns, but can take the total amount from one or more of the 403(b) contracts. However, RMDs required from other types of retirement plans, such as 401(k) and 457(b) plans have to be taken separately from each of those plan accounts. You are correct and the advisor is not.

Tough situation when Mr. Marley wants a plan and Mr. Scrooge doesn't.

Follow Mr. Rigby's advice. Further, the Plan Administrator holds the reins, the tiller, whatever. The Plan Administrator decides if the DRO is qualified. If there is an ambiguity in the DRO or if a needed factor is not specified, the Plan Administrator can send a letter to all parties stating how the Plan will treat the ambiguous or missing parts, subject to the parties' agreeing to the points in the letter. Some will say that the Plan Administrator should not get involved and should simply reject the DRO as not being qualified, but sometimes the process moves along faster if the Plan says here's the problem and here's how we are going to do things if all of you agree. (And some of us PA's prefer not have DRO's hanging out there for an extended period of time.) If the parties do not agree on the points in the letter, then the parties can try again to generate a DRO that eliminates the ambiguities, so that DRO is qualified and fully instructs the Plan Administrator on how to do the division of the account (within the rules governing QDRO's). At that point, I'd leave it entirely up to them to work out the necessary details.

Another potential confusion: usually a division of account will exclude any EE contributions/deferrals/PS additions that occur after a particular date (for example, date of separation). The original post makes no mention of that, so the parties should proceed carefully; if ambiguous, the record-keeper should not make the decision.

if plan allowed for after tax and there was no eligibility for after tax since after tax is included in the 401m test since you can print a report showing who is included in the testing, and you know who wasn't eligible for match you should be able to track that down 'easily'

No. The Davis Bacon portion has it's own rules with respect to eligibility and vesting; and these will, typically, be hard-written in the Basic Plan Document. This has nothing to do with the Profit Sharing vesting. Good Luck!

Right. If the participant pays the AP "by check", is that intended to replace the QDRO? If so, the parties need to get the QDRO changed first.

The statements about paying by check make no sense. Are you suggesting a payment of the amount outside of the plan from the participant's personal funds? The early distribution "penalty" tax does not apply to distributions to alternate payees under a QDRO.

"It depends on what the court order said." Caution: from the plan's viewpoint, it depends on what the QDRO says, not the divorce decree and/or property settlement agreement.