QDROphile

Do the written terms of the plan allow two rates?

Yes, unless the basis for the in-service distribution is financial hardship under the 401(k) rules.

I am not aware of a good answer to your question. I specify in the QDRO procedures that the plan's claims procedures apply. In my last contact with the DOL, the representative said that the DOL does not think that the ERISA claims procedures regulations apply to QDROs (for example, the plan administrator's decision is not entitled to any deference). However, I think a court may look to the reguations at least by analogy. Courts like to have claims resolved outside of court if possible, so would look favorably on an administrative procedure even if the claims procedures under the regulations do not control QDRO qualification calims. Some recent cases have stated that an alternate payee has a reasonable time to cure a failure to qualify, but no bright line guidance is given. There are ways to cure disqualification other than getting the plan administrator to change its mind. The court decisions were not directed at administrative claims procedures.

A trustee is a title holder, so you would not need an individual if you had an institution. The fiduciary functions are another matter. It is common to have an institution as a "directed" trustee and have an individual or committee as the discretionary fiduciary.

ElKH: It is usually a bad idea to have the plan sponsor as the primary fiduciary of the plan. This point has been discussed in other threads. Your assignment of fiduciary functions should be reconsidered.

Don't mix up sponsor, fiduciary and plan administrator. Section 404© is primarily a fiduciary concern.

I will take my chances. Will you defend me?

If I were the plan administrator, I would apply the restriction.

Did the plan administrator have notice of the decree before the distribution? Whether or not the plan can get dragged in, there is probably some recourse under state law. The participant has disobeyed the decree by taking the entire balance.

Dick is correct if the settlement agreement was incorporated into the divorce decree or similar domestic relations order and the decree or other order were delivered to the plan. Upon receipt of a domestic relations order, the plan is required to protect the amount that would be payable to the alternate payee if the order is detemined to be qualified. Even if the order delivered to the plan is not qualified, the alternate payee would then have a reasonable time to achieve qualification. The original post does not say the the plan received an order. Without a domestic relations order, the plan should proceed as usual with distributions. If the plan received an order that is not qualified, then questions about reasonable time to achieve qualification come up.

That is what WDIK is saying. You look at the highest aggregate outstanding balance within the year. $45,300 in your example unless some more of the June 2 balance had been paid before June 19.

The loan is a contract. Unless the contract terms anticipate it and allow for it, the contract cannot be changed unilaterally. I think you are approaching the issue correctly. It is the same loan. The LOA suspension simply requires some math to get it back on track, based on the orginal interest rate and terms.

GBurns: I was not trying to respond to Blinky's post, I was expanding the explanation of a point in R. Butler's post about how a plan with no key employee in it at all may be part of the aggregation group.

Rephrase R. Butler's paragraph (2) to provide more detail: You have to include any plan that is aggregated with a plan described in (1) in order for the plan described in (1) to pass 401(a)(4) or 410(b), whether or not the plan has a key employee in it.

Too eager, if you think you are going to score a quick advantage. The claimant should ask the plan administrator for information about filing a claim. Leave the gamesmanship to the sleazy lawyers.

Plan loans are enforceable personal debts. If they are not, then they violate the loan rules. No matter what the reason fo failure to pay, the fiduciary has to act in a commercially reasonable manner with regard to collection. It is not commercially reasonable to allow someone to elect to quit paying or to break an arrangment that provides for payment. If the debtor has a legal right to break an arrangement (such a revoking a revocable payroll deduction authorization), the fiduciary has to consider other means of collection. When the loan is made in the first place, the fiduciary should consider what safeguards there are to prevent being put in the awful situation of pondering how to collect a loan.

That could work. I would want to step back and see how everthing is put together in the plan. Lots of dots have to be connected properly. How the contribution is determined is not necessarily how it is allocated. The document should say what is done with the contribution, although it may not say it in the section that describes how to determine the amount of the contribution. Does it say allocate to accounts or use to pay the ESOP loan? If it does not say what to do with the contribution, then someone is in a pickle and will have to rely on an interpretation of the document to fill in the missing terms. The real problem may lie in the SPD. It may say that the participants "get" the match and describe the match as the amount contributed. This issue applies in every leveraged ESOP. The amount contributed is not the same as the value of what is allocated to accounts.

Depends on what the plan documents says. The contribution is probably OK because the plan probably says that the contribution is used to pay the loan to the extent necessary and the allocation formula is based on the ESOP requirement to allocate by units (shares) rather than dollars. Participants often get miffed when the value allocated to the accounts is less than the nominal value of the contribution (which they can measure because they know the match rate), but that is life with a leveraged ESOP. If the share value appreciates, the value added to the accounts can be higher than the nominal value of the match at the time of allocation. Some plans avoid having to explain this to miffed participants by assuring that the value allocated is not less then the nominal amount based on the match rate. The employer has to make additional contributions to get there. You could have one of those plan designs, but it should be pretty obvious if you do.

You need to get the step by step details form the plan administrator about how the arrangement will actually work and what will be distributed. It appears that the SPD does not have the details. It is possible that the distribution and direct rollover will be in cash. It is also possible that the direct rollover will be in shares, but the the ultimate conclusion of the transaction will be delivery of cash in payment for the shares. It is also possible that the distribution will be in shares and be purchased prior to the rollover, but the cash will be delivered to the IRA as a courtesy so it looks like a direct rollover. If the distribution is 100% employer securities, there is no withholding whether or not the amount is rolled over directly.

The intent of the purveyors may be nefarious, and bad coordination can lead to trouble, but please explain the illegality. One may have more than one document (an identifiable collection of related pages of paper) and yet have a single plan (an identifiable collection of documents). Even if you don't allow the definition trick, what is the proscription on multiple cafeteria plans?

Why don't you let the participant identify the shares?

Either way. A cafeteria plan document can be used as a vehicle to have a single umbrella that covers all of the employer's plans, whether or not all of the component plans require or allow for employees to pay for all or part of the cost of the benefit. A cafeteria plan document can also be used strictly for the purpose of compliance with section 125, and the plans of the employer that do not involve payment of premiums by employees would have nothing to do with the cafeteria plan.

A cafeteria plan can be designed along the lines you suggest, with flexibility to add and delete insurance arrangements that can be paid through the pre-tax premium feature of the plan. Whether or not you call it a formal amendment, the plan should document the component insurance plan, for example, on a schedule. A change to the schedule should not cost $250. But you also have to implement and coordinate changes appropriately, and notify participants. We have gone through the AFLAC attack several times. Outcomes differ by client, but we usually just add the AFLAC insurance to the exisiting plan. The sales person says that won't work, but the home office knows better.

Yes, if the alternate payee is a spouse or former spouse of the plan participant. But once the amount is rolled over, withdrawal before age 59 1/2 will be subject to the early withdrawal penalty unless an exception applies. Distribution from the plan is not subject to the early withdrawal penalty. Depending on when the alternate payee expects to need spending money, it might not be a good idea to roll over funds from the qualified plan.

Preparation or acceptance of a form is a fiduciary function. The fiduciary cannot be partial to a particiapnt or an alternate payee. It is impossible to prepare a form that is neutral, at least for a defined benefit plan. One way or another, the form will at least suggest to one or the other some idea or advantage that would not have been thought of without the inspiration provided by the form. For example, would the form have a provision for awarding the alternate payee a portion of the survving spouse benefit if the participant dies before the start of benefit payments to the alternate payee? Would the form provide for a proportionate share of early retirement subsidy to the alternate payee in the event that the participant starts benefits later and is entitled to a subsidy? The alternate payee may not have bargained for those benefits unless the form had raised the issues, and any success on the part of the alternate payee could be detrimental to the participant. The other side of the coin is that the plan administrator cannot possibly put everthing in a model that a QDRO can do, such as secure child support obligations or allow partial cashouts of employee contributions in defined benefit plans. Is the administrator at fault for an "incomplete" model or implied limitations? Even worse, the form may be used rather thoughtlessly and may greatly influence the property division. You know darn well that many ignorant lawyers desperately want to fill in the blanks and be done with it rather than give much thought to how the property should be divided. I don't like giving them a loaded gun. In a similar vein, criticism has been leveled against lawers who thoughtlessly influence clients to pass property in a will according to common law presumptions rather than find out what the client really wants in a will. The counter argument is that no one should be shy about having everyone fully informed and making their own decisions and doing their own bargaining. In a perfect Republican world, that would be true, but it does not happen that way. The sophisticated provisions in QDROs are not understood by all the lawyers, let alone the participant and alternate payee. Another problem is that domestic relations orders are creatures of state law. They must comply with state law and court form and procedures. The plan administrator would at least have to put a big disclaimer on the form that the form is not designed to cover any requirements of state law. For example, it is common practice to have a provisions for reservation of jurisdiction over the property division that would otherwise end upon the divorce. But that is purely a state law concern and the plan administrator is out of place by adding it to the form. Or could the plan administrator be criticized for not adding it? What if the availability of the form sugggested to the individuals that they they could do it themselves without legal counsel? Would the plan administrator have any problem other than dealing with the mess? Would the plan administrator give the form only to lawyers? How detailed will the form be? Will there be alternate provisons for the formulas that are commonly found in community property states? And how does the plan administrator know about all that? The law tends to treat volunteers rather rudely. I am not in favor of the plan administrator volunteering a form of domestic relations order, but many people will conclude that the convenience, control and expediency of a form outweighs my theoretical concens. There is something to be said for that. The conclusions might need to be reevaluated now that the DOL has changed its position against charging the participants benefits for the costs of QDRO administration.