Leaderboard

Thanks! I already learned something today so maybe I'll go home...

I agree that she was an employee in 2015 and eligibility service starts from her initial employment. If they have excluded her as a non-resident alien, they have been improperly excluding her from the plan. The statutory exclusion is for non-resident aliens with no US source income, so it doesn't apply.

If you represent the plan, the plan should not be looking for a way to accommodate.

You raise an interesting issue; I always have to explain to the lawyers I am drafting QDROs for (for my client plans) WHY there is no allocation of gains through the date of distribution. That's because the plans are mostly trustee directed balance forward plans where the allocations of gains and losses occurs only on the last day of every plan year. So, if the award is for 1/2 of the account as of 3/18?18 (on a 12/31 year end plan), then it's half of the 12/31/17 account value UNTIL 12/31/18. If the distribution is made anytime prior to 12/31/18, there is no change in the value. If it holds over past 12/31/18, then it will get its share of the gains/losses for the 2018 calendar year. So as you can see, it is plan specific. So, even though the language may talk about allocating gains and losses, the actual gains and losses allocated may very well be zero since there is no allocation applicable until the plan year ends. We also just had a distribution to an ex that was exactly $1,000,000 (so long as made during 2018). And we all had to fight the ex-spouse's lawyer in Oregon who put a November, 2017 date in the divorce decree and expected gains and losses until the payout. I should point out that even the EX was fighting with her lawyer because she and her ex-husband agreed it would be exactly $1mill in this year and they were all very happy with that (the relationship between the two exes is actually pretty good; always nice when that happens). The lawyer ran up thousands of dollars in extra expenses fighting her own client, including hiring someone else to draft a QDRO (which was deficient) even though the parties actually wrote in the divorce decree that I was to do it (I didn't ask for that; it's just that I have worked with both of them for many years and they knew I would make happen what it was that they wanted to do). Now, we are thinking of bring a suit against the lawyer! Sheesh!!!!