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Bill meant to say YES, it is legal. It is indeed the employer's decision. We routinely set up PW/Davis Bacon plans and specifically lower the cash wages because it also saves a ton of money for the employer, especially in workers comp costs, which then makes the employer more competitive on bidding which then makes it likely there will be more work for his employees. The employee may not like that his W-2 part of the prevailing wage job has gone down, but his only remedy is to quit. This is 100% under the control of the employer and, as much as you may not like it, the employee has zero say in the matter.

At one time (for many years, actually), I thought the joint table for spouses more than 10 years younger was optional. Recently, I thought I read somewhere that if the spouse was more than 10 years younger, the plan was required to use the joint table. Not sure if I can find the reference again. Recently been using the joint table.

@QDROphile: On the whole, the outcome so far was extremely positive and came the closest to satisfying absolutely everyone concerned. Yesterday we sent the participant the John Hancock withdrawal form for himself as a terminated participant, the Special Tax Notice, AND the boiler plate QDRO document that our ERISA attorney allows us to share in special cases. He called back today with a few questions on how to fill out the form, and then he was off to court to see what he needed to do to get this thing blessed by a judge and turned into a QDRO. He finally understands the tax consequences of merely taking a distribution of the entire account first and he wants to avoid that if he can. It remains to be seen whether he can get a judge to approve the DRO in the time frame that he needs. He's not trying to escape paying the ex-wife. At the moment, everyone is satisfied. The client and we as the TPA are not worried about being sued by the ex-wife. The ex-wife, who, as it develops, has been bugging the participant about getting her share, now knows that there is movement on her case and it should be resolved soon. The HR department at the client's office knows that we've done our dead level best to take care of both them and the participant and the ex-wife and that's what they wanted. The participant "gets it" about his taxes and has opted to try to do the QDRO. He knows he can always default to taking all the money and paying all the taxes if absolutely necessary due to time constraints. I appreciate the professionals who replied yesterday and I respect their expertise and advice, even if I don't agree with all of them. My one exception is you. You may have had some good ideas, but you delivered them with so much venom and sarcasm that the effort to "help" was lost. If you enjoyed belittling me and my efforts yesterday, then I hope you had fun. You won't get another opportunity. As for the accuracy, there were only two points with which I do not agree. First, the notion that we have no responsibility to do anything at all until we receive a genuine DRO does not play here. Our client expects us to listen, care, and take action of some sort when she alerts us to the fact that there something in the works with a divorce. Our ERISA attorney said it was "probably prudent" to freeze the account until it could be sorted out. We have stopped kicking ourselves for doing that, and we will assess each case individually and make our best decision in the future as to whether to do that or not. Yes, many of our employers are paternalistic and with good reason. We have no quarrel with that. Plus, our clients, and we, do not want to go to court over an ex-spouse's claim to a benefit that we approved to be paid out to a participant. It really does not matter that we would have technically been "right" because we did not receive a DRO or a QDRO. We would still have to spend the money, hire a lawyer, and use valuable time to go win the case. The other point with which I disagree is that "jerking John Hancock's chain" brought down some kind of adverse circumstance. It did not, and there is no problem there. And that is all I have to say on this subject, except that I will update the thread when I find out the ultimate outcome of the situation.

And I'm not even a senior yet. Yet. it's coming soon. too soon...

I agree with ldr here. I don't mind a certain bluntness in answers, I am also very thick skinned so my blunt could be another person's rude. However, I try do make sure initial answers are not rude. It is for the reason I think people should be encouraged to answer. Even if you give a wrong answer you ought to be encourage to give an answer. You should learn from the other answers if you are wrong but that is really the only way to learn here. I know for a fact you can search my answers over the years where I have gone back and edited my answer to say something to the effect: I have edited my answer to nothing as I have been shown to be wrong in my first answer. Sorry for the confusion I may have caused. That should be good enough and encouraged. That is how everyone learns. And in the case of this forum the number of truly dumb questions is very small. So all questions ought to be encourage to be asked.

RatherBeGolfing, I had no issue whatsoever with anything you said. My issue is with QDROphile, who is simply rude, and not even 100% accurate in all the advice he gave. Responses like the one he gave will drive away people who might otherwise have participated on this forum, and will make many more into "lurkers" who read the information but don't dare speak up for fear of being ridiculed for asking questions in the first place. Even I am going to step back and read from now on and try to solve all of my questions on my own. I don't say I will never put up a question again - management may require it - but not if I can find any other alternative.

Not sure I understand the question - does the plan have different match formulas for pre-tax and Roth deferrals? Generally the deferral percentage for purposes of calculating match would be (pre-tax + Roth)/comp.

I was under the impression that all employer contributions are pre-tax.

This is correct. An annuity under a 403(b) plan must be purchased "for an employee." The employee is the owner. So the employer can set up a new investment for future contributions, and can advise employees to move the old money. However, it can typically not move the old money itself.

"My issue is with QDROphile, who is simply rude, and not even 100% accurate in all the advice he gave. " Yes, I was rude. It ticks me off when service providers cover matters that look manageable from the middle of the road in an off-the-shelf form-based world. QDRO practice in particular is tricky because the action is generated (1) in state court under state law either by (2) lawyers who are often not competent in this technical area or (3) untrained individuals in an environment usually involving great (4) emotional and (5) financial stress, all the more reason for the adviser to the QDRO fiduciary to have a broad and deep understanding beyond just the checklist aspects of qualification in order to minimize the complications at the plan level. Even the Department of Labor gets a lot of QDRO stuff wrong. So where are you right now? Unless you believe that the plan fiduciary or employer should take a paternalistic approach to deciding what is right or best for the participant (which I will not quarrel), the participant has been hung out with at least delay against his rights and wishes (as imprudent as they may seem to the experts). It could have come out differently, allowing the participant to manage his own life, even in desperation. The original post seemed to ask how to get the participant what the participant wanted. I was rude, but I am teachable. I responded without knowing what might be provided in the plan's written QDRO procedures, but I bet it would not make a difference, notwithstanding some astute comments by others concerning policies about action to be taken upon the receipt of a domestic relations order or the suggestion of an appearance of a domestic relations order. What was not accurate about the advice I gave?* *As for Larry Starr's disagreement with my warning about falling into the pit of unnecessarily engaging John Hancock, I was stating possibilities. He is correct that John Hancock should simply follow instructions from the appropriate fiduciary, but (1) we have no information about John Hancock's actual role or responsibilities, and (2) a lot of institutional service providers overstep their role and improperly interfere unless they are happy in their own minds with the proceedings. I wager that Mr. Starr has had to read the riot act to an officious provider about respecting the instructions of the appropriate fiduciary or compliance in some other fashion.

Pardon me while I bark first. Your ignorance about QDRO law and procedures probably prevented the practical solution that I offer below. Your should refer QDRO questions out to someone capable of advising about QDRO administration. That said, your standard of understanding and competence is about average in the industry, so don't take it too hard. What should have happened is the participant should never have shown the papers to the plan. The order (and it is a domestic relations order) applies only to the participant and has nothing to do with the plan. It orders the participant to pay half of the distribution to the former spouse. This may be stupid or pretty sneaky on the part of the former spouse; it changes the tax consequences and I pass on that issue. The direction has nothing to do with the plan. But the participant DID give the order to the plan, so next what should have happened is the plan (or its adviser) should have recognized that the plan was not implicated and bent the strict processing procedure and conclude that it has not received a domestic relations order and therefore it should process a distribution to the participant in normal course. The plan should not accommodate the participant's request to split the distribution check in any way -- the plan needs to completely disregard the order to keep itself clear. The entire distribution is to the participant -- just as the order says. You probably cannot now restore Humpty Dumpty. You have started processing the order as a domestic relations order. You may have to continue, especially since you jerked John Hancock's chain. If you understood QDRO processing, there is still a way to get the participant a distribution of half of the account right away, even while processing the domestic relations order that is not going to be qualified. I will refer you to section 414(p)(7) to give you ideas, but I am not going to spell it out. You need a shock to your system to make you understand that you are not competent to deal with QDROs and you should seek professional help that you or the plan pays for to extricate yourself from this mess. Or not. You can just let the participant dangle while you process the domestic relations order under usual procedures. The participant brought it on himself by not participating in the divorce.