QDROphile

How about this: Effective (a) starting as soon as practicable after this [Order] is determined to be a "qualified domestic relations order", Alternate Payee shall be paid directly by the Plan an amount equal to 50% of the amount of each benefit payment scheduled to be paid to Participant, and the amount of each of Participant's actual benefit payments shall be reduced by the amount paid to Alternate Payee, until (b) the earlier of the death of either Participant or Alternate Payee. If Participant dies before Alternate Payee, Alternate Payee shall continue to be entitled to Alternate Payee's 100 percent survivor benefit, starting payment after the death of Participant. I did not try to exclude any future increase in a benefit payment amount. Why would you, unless the participant returns to service and accrues additional benefits, which would be the participant's issue to bring up? The term "shared interest" does not have an established meaning in the statute or the regulations even though it is bandied about in common parlance.

Would it be silly to suggest that the plan document would deal with the issue of priority of charges to pay and adjustment of the deferral election to fit the available amount?

The plan is off track, but I would be curious about how you expressed the award of the 50 percent of the current stream of payments while the participant is alive. Maybe you could make it easier for them. Taking a “split the payment” approach is usually easy to understand if it is expressed simply and completely. But then, some (?) QDRO administrators wear blinders and don’t know it. This may be a situation that calls for submitting a claim under the plan’s claims procedures (you did not state if this is an electing plan). If not, submit your objection, with explanation, anyway and threaten litigation to force a closer look by the plan.

"I have a client that does not want it to show up on the 990 or anywhere else that the agency is putting the money away for him." This does not sound good. At all. Who is speaking in this manner for the employer/agency?

My skepticism of the DOL's views about QDRO law includes its position on use of the section 503 claims procedures to resolve challenges to the determination of qualification of a domestic relations order. I think a participant can make a claim for benefits asserting that the participant's benefit has been improperly reduced because the DRO is not qualified or that the QDRO fiduciary misinterpreted the terms of the order, such as getting the math wrong or failing to observe terms for awarding gains and losses. The participant is very likely to lose, at least with respect to qualification itself. The participant cannot contest under 503 the substance of the order as determined by the state court (i.e. the domestic relations proceeding or outcome was unfair, wrong, contrary to state law, etc.) and the QDRO fiduciary does not consider complaints about what happened in state court other than an assertion that the DRO presented to the plan is not a bona fide final domestic relations order. The QDRO procedures under 206(d)(3) can (and should) refer to the plan's general claims procedures as the avenue for contesting the QDRO fiduciary's determination of qualification under 206(d)(3) and interpretation of the terms of the order. Everyone makes mistakes and everyone needs due process. I also think that the the proper initiation of interpleader by a QDRO fiduciary should be quite rare (and screw California procedure), and usually represents a failure on the part of the QDRO fiduciary to do its job properly.

“Wacky” is charitable.

Your description is unconventional, so a bit confusing. A distribution event is necessary, but I presumed that.

At the time, idea of “cascading rollovers” had emerged. If you created several IRAs, you could serially roll over an amount from one to another, thereby almost effectively withdrawing the amount for some time (greater than the 60-day single rollover period) without paying taxes. It was like a juggler keeping one or more balls (the amount) in the air at all times. It is unlikely that an individual would be able to unilaterally line up multiple qualified plans to perform the same stunt.

Valuation and custody. If it is a direct rollover, valuation is not as sensitive as a practical matter. If the assets are publicly traded, neither valuation nor custody should be an issue, but check with the proposed IRA provider before lighting the fuse.

And are you also dealing with securities law violations, just to make it more interesting?

I don’t like speculation about information not provided. If those without an account are those who are eligible but simply never chose to defer, a correction based on treating the $1000 as bonus, with the bonus eligible for a deferral election (which sounds pretty much like what happened, except perhaps without procedural integrity — was it an all or nothing election?) is complicated by what appears to be the failure to offer the deferral to the “no account” participants. The approach to correction is complicated by the omission and needs to take into account, at least as a matter of principle rather following a recipe, the IRS guidance concerning failure to provide an election opportunity. Actual plan terms also must be considered.

I don’t trash the DOL because the publications don’t have the force of law, I trash the DOL because the DOL is wrong about the law. I also trash the DOL because it did not give us any useful law or guidance on post-death QDROs when Congress instructed it to do so.

The last 6 words threw me. Are the distributions not in accordance with plan terms?

And in Louisiana, they have the Napoleonic Code, Stella.

That is the question asked by seekers of the Holy Grail.

And while I am at it, my two cents on the Continental case was really about Continental being adverse selected, which one could argue that it deserved, or at least invited.

Unfortunately, the sad state of economic affairs of most people puts them in a place where retirement plan assets are either necessary or too tempting for survival after divorce, especially for alternate payees. Witness the hijinks of lawyers who try to draft orders payable to them for the benefit of their clients to make sure they get paid for their work in the divorce. Designing a plan or QDRO procedures to prevent immediate distribution can be a serious imposition on legitimate needs. Many plan administrators are familiar with begging and hounding by would-be alternate payees because money can’t be distributed fast enough. Also, some providers, especially those who also offer QDRO administration (with improprieties), will not accommodate a plan design that does not fit its conceptual template, appropriate for many employers, to encourage alternate payees to take the award and clear out of the plan.

I think a QDRO administrator should keep hands off a sham divorce and implement an order formally. If the state procedures are followed and a divorce or separation under state law is effected formally, so be it. Unfortunately, I cannot be comforted that state judges will exercise appropriate knowledge and understanding of ERISA to avoid orders that are what I called “naked” assignments of retirement assets without what we intuitively consider a domestic relations proceeding under domestic relations law, where division of marital assets has a presumed purpose and meaning that as far as I know has not been adequately adjudicated. I had a client that did not allow immediate distribution to a spouse or former spouse pursuant to a QDRO under its defined contribution plan because of anecdotal evidence of sham divorces. That dampened the incentive to go through the formalities under domestic relations law for the sake of buying the fishing boat. Although I am often a critic of the DOL when it comes to QDRO law, I am completely sympathetic to giving administrators a pass on the need to examine state law or state proceedings. Employers may care enough to design plans to hamper shenanigans, but the plan administrator should not have to care if participants are hell-bent to make irresponsible decisions about retirement savings. But damn the lawyers or other advisors who encourage it.

By “statute” I mean the IRC or ERISA.

You need to look at the definitions and conditions in the statute. A naked transfer funds is not going to qualify, and I doubt any state domestic relations law is going to provide for it, as such, outside of a divorce or separation proceeding.

No. Distribution is 80% of a wrong number (most recent valuation) but is hoped to be less than 100.01% of the right number (determined at the next valuation). The true up is the difference between what was distributed and the amount that would have been distributed if the value had been known at the time of distribution, which is what a special valuation provides.

I would love to know where people get the idea that the plan can sit on QDRO determination for 18 months.

Is the plan a DC plan? Are both parties, including the deceased AP by representation, requesting the assignment? Is the deceased AP a former spouse? If you are confident that no one involved will be contesting the assignment, you are pretty safe even if the definition, "a domestic relations order— (i) which creates or recognizes the existence of an alternate payee's right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan" does not include "estate of the alternate payee" within the meaning of IRC section 414(p). I have not tested this proposition by research and have no experience with the question. I have heard that death of one of the parties to a divorce proceeding creates issues under state law, but the plan does not have to worry about state law -- almost always the plan can rely on the order. If someone is contesting, then you need to dig deeper, but there are shortcuts to make someone else do the heavy lifting on the research.

When a domestic relations order is determined to be qualified, notice is given. That presents an objecting party an opportunity to file a claim for benefits under the plan's claims procedures. One way to frame the claim in this case is that the participant (claimant) asserts that the participant is entitled to the benefits awarded instead to the alternate payee. In this case, because the participant has been making so much noise already, evidently before the determination, the appropriate fiduciary (the "Administrator") could contact the participant in connection with the notice of determination and either 1) advise that the plan will treat the noise as a claim, but invite the participant to follow the claims procedures, at least to the extent of formalizing, clarifying, and supplementing the record as to exactly what the claim is, or 2) acknowledge the noise and advise that the matter should be taken up now under the claims procedure, and provide information about how to prosecute the claim (e.g. where to find or obtain the written the claims procedures). Note that I am not asserting anything about the conduct of the consideration of the claim, such as whether or not the Administrator will look into the bona fides of the court action or simply consider if the formalities of qualification have been satisfied. The claims procedure is the appropriate avenue for challenge/argument and the best way to rein in the participant. Under the claims procedure, the participant is sooner or later entitled to see all the documents relevant to the consideration and decision, so once the participant is channeled, the Administrator should be liberal, which in the end will slam the door tightly shut. Any payments under the QDRO usually should be suspended pending resolution, which should be pursued expeditiously.

How about 80% based on most recent valuation, subject to true-up after the next regular valuation, subject to further discretionary reduction (e.g. 75%) in case of a black swan market. Of course, the plan needs this in writing, such as the investment policy or distribution policy, supported by plan terms that provide for such written policies of the fiduciary, or the plan document itself (but good luck unless you you have a custom document). Probably too late to add for the current transaction at this point. It should have been part of the plan design whenever the pooled fund began. This issue has been around forever. Maybe the plan has some general language built in for fiduciary discretion that can be stretched to fit.