QDROphile

If Voya is not a fiduciary, then Voya must follow the instructions of the appropriate fiduciary or convince the fiduciary that the ordered action is not proper (e.g. not permitted by contract or plan terms). If not, Voya should be fired and threatened with breach of duty. Taking on fiduciary functions by meddling (not executing administrative directions) makes one a fiduciary, whether or not named. If Voya is a fiduciary, then Voya must act in accordance with a plan terms or the instructions of a superior fiduciary and should be able to explain its actions coherently. Start by asking yourself, then Voya, if Voya is acting as a fiduciary.

One shortcut is to transfer the loan proceeds to the closing escrow for the house. This is also a procedure for a hardship distribution for purchase of principal residence, with the advantage that if the transaction does not close, I believe the unwinding of the escrow by return of the funds obviates the question about "reversing" the distribution - the distribution is contingent and does not occur. Is it a principal residence? I will leave that to others.

However, money is fungible, so if the individual is eligible to contribute to a Roth IRA, the net distribution $$ can be used to fund the Roth IRA. Not a rollover.

Many ESOP companies have a devil of a time with valuations in time for administrative needs, such as distributions, and the time mandates are more liberal than 60 days. However, valuation standards and practices for ESOPs are arguably more rigorous than would be required for nonqualified deferred compensation. Personally, I am somewhat cynical about valuations and what it takes to get a valid one for any particular purpose.

One of the aspects of the cautions against inexperienced assistance in these matters also applies to the "other distributable event" ideas: the different transactions have different implications, specifically including federal and state tax consequences. The tax consequences of dividing and account by QDRO vs some other avenue for extracting money from the plan for ultimate division of the account are quite different and would change the economics of the "equal" division between the parties. It is more complicated than dividing by two and filling in some forms.

Have the securities law issues been resolved for multiple employer 401(k) plans (not that anyone seemed to care much, ever)?

It never hurts to check what the plan administrator thinks the applicable forms are now. It is, you know, federal government administration.

Your first sentence and last sentence contradict. I would agree if you meant by the last sentence that the Plan Administrator should do nothing toward helping the former spouse understand or pursue whatever rights the former spouse has under the marital settlement agreement.

As in, Punctilious Pilot? Captain Sully!

Plan sponsors, as such, as have nothing to do with plan administration except possibly appointing the Plan Administrator and trustee. An interpleader by an ERISA retirement plan usually indicates that a plan fiduciary not doing its job.

Have you thought about applicability of IRC section 414(p)(3) (A)? No plan is designed to provide a distribution to a spouse of the participant except as a beneficiary or survivor. Let the proponent bear the burden of persuasion.

Be careful about concluding that the plan accepts rollovers. The plan may accept rollovers only from participants. If the distribution is a total distribution, then the person who wants to roll funds back is not a participant (interpretations matter here) and is not eligible. There are variations on this theme.

Supplement to the reference to interpretation of the plan document: The appropriate fiduciary (usually the plan administrator) will be in a stronger position if the plan’s written QDRO procedures specifically address the issue before the order is submitted. Not that purveyors of domestic relations advice or documents always read the plan documents, but plan provisions that pre-empt what the plan believes to be an inappropriate action (informed by ERISA principles) involving plan assets may also affect initiation of those actions.

You might consider what “sometimes”means. If there is a revolving door with enough people going out and back in within short intervals, immediate distribution might be problematic, or at least the optics raise questions. Rather than live a life subject to the whims of circumstances and intent, a change in plan design or reemployment policy may be warranted. Industry standards and practices would be relevant.

Did you check the linked material?

Good for you. Parts of me aren’t working, but that is what goes with aging. I experienced labor only vicariously through my wife. The closest I got was coaching the breathing.

State law, corporate articles and bylaws, the nature, form, text, and context of the resolution, and what you mean by “signed” and by whom. For example, from your post, I cannot tell if this was (1) a resolution adopted at a meeting on August 25 and memorialized in minutes signed by the Secretary on August 31, (2) a unanimous written consent that specified an August 25 effective date, executed by all directors with dated signatures of August 31, or (3) something else that is valid and effective, as stated, under applicable state law.

I agree with the comments to the effect that a plan-to-plan transfer is the appropriate vehicle, and given the design, unless there is some material difference between the plans that is not described, someone did not do their job if the plan documents do not already provide for transfers of this sort.

But the insurance industry would never allow that.

My recommendation is to close the barn door before the horse gets out and provide in the QDRO procedures that an order will not be qualified if it does not expressly address the withholding issue. If the QDRO procedures do not address the situation, it may be possible to disqualify based on an inability to interpret the order, as has been suggested. The fiduciary may choose to interpret the order with respect to withholding, and make qualification contingent on that interpretation. Disagreement can be resolved under the claims procedures or by resubmitting a modified order. The fiduciary might choose not to extend itself because the interpretation is going to favor somebody, probably with respect to an issue that was not properly considered in the domestic relations proceeding because of ignorance of the tax law.

The question needs to be analyzed under the Prohibited Transaction rules, which tend to be fact sensitive. As part of the analysis one may well run into questions of enterprise organization and ownership (part of those important facts). For what it is worth, I would approach the question with a bias toward the negative, but would not presume anything. In other words, you are not going to get a reliable answer based on what you have provided*, except that it is a complicated question that deserves the attention of competent legal counsel if they are serious about the proposition. Oh, and I think it is unwise in any event. Part of the underlying philosophy of ERISA and the prohibited transaction rules is that one’s employment (and related income) should be insulated from one’s retirement savings. Eggs in a basket and all that. *Providing more information is quite unlikely to get a reliable response, except perhaps a negative. This is not the place for this kind of advice — too complicated and too important —especially for those who may be presumed to be able to pay for it.

While I am at it, this is an opportunity to reiterate my disapproval of a statute that encourages plans to throw unsophisticated individuals to the wilds of self-directed investment as a refuge from the bogeyman of fiduciary liability.

If an official, and presumably well-crafted and reviewed, letter from the most august legislative body the English-speaking world cannot use “begs the question” properly, we cannot expect them to understand ERISA fiduciary nuances. The misuse of “begs the question” for the purpose of sounding sophisticated, elegant, or erudite simply proves the opposite. And if the government believes that cryptocurrency is inappropriate for retirement savings, it can easily legislate to that end, as it has for other exotic or questionable assets. Oh, wait, I forgot that we do not have an ability to legislate anymore. Cranky

I am so sorry that you are facing this. The "small me" wishes you could find a way to make the plan pay painfully for its position, or choice of counsel, or whatever shortcoming is putting you through this. I am also biting my tongue to contain the many negative remarks that come to mind relating to the ethics and competence of churches. Last ditch attempt: Is there any possibility of finding a decent ERISA lawyer in the community of the sinister/bumbling lawyer who would first have a local lawyer- to - local lawyer talk before having to play hardball?

You conclude that the plan is fundamentally 🤐 wrong in its understanding of a 100% J&S. I was trying to avoid any confusion introduced by the DRO language: "The Alternate Payee's Share shall equal Fifty Percent (50%) of the Member Benefit as of the Accounting Date as a shared interest, payable for the Member's lifetime." It seemed to me that an uninformed administrator might misapply that 50% language to the survivor benefit to get the 50% survivor annuity you describe. I don't see where they get the idea that division of the benefit automatically reduces the survivor annuity to 50%. Actually, I do have an idea. The resulting incorrect 50% survivor annuity is 100% of what the participant's benefit is after the participant's current payments are reduced by 50%, therefore is still a 100% survivor annuity to the ignorant view.. I hoped my language, which focuses only on the stream of payments during the participant's life, and not "THE BENEFIT", would avoid misapplication of the division language to the entire benefit. You are just going to have to educate them, which one hopes could be done informally rather than through litigation. Are they totally self-administered? Do they have any independent advisors, such as an actuary, that one can appeal to informally? There are lots of cases about how a spouse at the pension commencement date is "vested" in the survivor benefit at that point and cannot be divested by a QDRO (slightly different facts). But if they are so stuck on the wrong concept, they may be unmoved by authority that does not have exactly the same facts.