QDROphile

In addition to Doc Ument's comments, I would embellish the following one: "That is why the attorneys who structured this deal should have read the document before proceeding with the transaction." Even if the document did not provide for what was to happen under the circumstances, the plan document could have been amended before closing to provide for the desired outcome (and forced the parties to think in advance about what the desired outcome should be). Corporate transactional lawyers and advisers have a very bad habit of not including someone with ERISA expertise in the structuring and execution of a sale/reorganization, or at least not doing so in a timely manner before all that can be done is either hold your nose or pick up the pieces as well as possible. Also, the mentality of not thinking beyond pre-approved documents contributes to the problem. A pre-approved document is almost certain to fail to serve the needs of complex corporate organizations and transactions. They are designed based on LRMs and IRS approval rather than the tax-qualification needs of the employer. Even the exercise of filling out the adoption agreement of pre-approved documents is usually a missed opportunity to think deeply about what the employer(s) is/are all about and what they are trying to accomplish both by way of benefits and by way of administration. Adopting a benefit plan has become an exercise in buying a mass-produced commodity, designed as a loss-leader for the business of selling investment management services. It is not surprising the a lot gets lost in the process of both design and implementation. Cheaper, yes. But sometimes there is a painful lesson about getting what you pay for.

They exist, but not in the traditional retail 401(k) menu-driven marketplace (including a "brokerage window" as one of the menu options). I agree with ESOP Guy that you are unlikely to have options available despite legality as a retirement plan investment. It has nothing to do with employer securities, as such.

Covered call options are permissible, but standard trust terms might not provide for them and the 401(k) investment product might not allow them, in part because they (the products) compensate the provider at a low margin and options are usually not “push the button” standard transactions. Ask the provider if the arrangement is within the brokerage window menu. Shame on the employer and the fiduciary if the employer can even find out what a participant chooses as investments.

The AP needs to file a claim for benefits in order to get benefits to which the AP is entitled. The information provided doe s not assure that there was a QDRO or that the AP was entitled to anything. It also does not allow an answer to the "Who is wrong?" question, although it appears, with only imagined doubt, that the participant is not involved.

We could start a new thread to recount stories about what happened when the specter of prohibited transactions was made apparent to unsuspecting partygoers. I have been dismissed from a transaction or two. I have also had others angrily walk out of the room. I have also testified before a federal grand jury. It turns out that what we ERISA practitioners know as certain prohibited transactions are also prohibited by the U.S. criminal code.

FICA issues are not the greatest misses in JamesK’s assertions. “gave back” compensation should be explored in light of the constructive receipt doctrine, as suggested by ESOP Guy.

What form of organization is the company?

Seconding jpod, he may have given back the salary, but he still had the income for income tax purposes, and a deferral for income tax purposes. Or there is more to “gave back” than stated. And if he gave back the salary, why would the reversal of the deferral go to him? The deferral is part of salary.

So what do you think of the value of the Dept. of Labor QDRO Handbook that you have attached to at least one post?

My sympathies for you situation and the losses you are experiencing. Your situation pension benefits situation is complicated by several factors, including (1) the pre-retirement disability (2) starting while married to spouse #1. But the most important factor for consideration in this forum is that the plan is a governmental plan, which means the the general national rules, applicable to private employers, that we are familiar with do not necessarily apply even though some concepts and principles may be similar. Only an understanding of the terms of that specific plan and applicable rules or regulations for that specific plan will be the basis for any answers with certainty about where you stand. It just will not work for you to provide a description here of circumstances within your purview and get a response that is specific and reliable. CuseFan responded within the context of the law in the private sector and warned that government plans may be different. That is about as good as it gets. You have asserted your claim based on your marriage and the attempt to designate you as beneficiary. That is what you had to do. Usually there is an appeal process, but not necessarily. Whether or not you got a correct or complete ruling/response can't be determined here. As to whether or not you can get anything by being a nuisance to spouse#1 is likewise beyond this forum.

“questioning the documentation” Is the concern about a plan administrator recognizing that the participant is not married, and therefore not subject to whatever spouse consent or J&S annuity benefit that might otherwise apply, especially since original records may indicate marriage? CuseFan is essentially correct about QDROs, but sometimes plan administrators are not well-informed and QDRO is (incorrectly) the only concept or language available to them in unusual circumstances. There are discussions on this Board about use of a technically incorrect “QDRO” to assure that a former spouse has no interest under the plan.

I am recalling the rules under section 125 relating to eligibility relating to dependents and complications arising out of divorce and the rules about which parent is considered as providing the support that is relevant to dependency. Those rules can be reflected in plan terms. I do not have a specific recollection relating to HSAs. The yellow light went on with discussion of double dipping. When a tax deal for regular folk sounds too good, caution is advisable.

I think that some tax and plan definitions of “dependent” may have been given short shrift in a conclusion that both parents may have coverage for the child.under separate plans of separate employers. Maybe not.

Why do you ask? A blackout period generally relates to some phenomenon that causes participants to be unable to give effective investment directions with respect to their accounts. This presumes that participants have the right/power to direct investments. Changing investment providers or changing investment fund menus are probably the most common phenomena that cause blackouts. While the change is occurring, there is enough going on so the service providers are unable to deal with the further distraction of accommodating investment instructions until after the changes are completed and the new arrangements are up and running. Depending on what you mean by "recordkeeper," a plan can have the same record keeper but still change investment providers or investment menus. Your reference to "advisors" suggests that the investment arrangements are changing, such as the investment menu will be a different family of funds (e.g. changing from Vanguard to T. Rowe Price), or the investment options are remaining within the same family or platform, but one or more designated investment funds is changing. Also, "staying at the same recordkeeper" is not adequately informative. If the only change is that now adviser Joan will be paid a fee by the plan instead of adviser Jim, then a blackout is not implicated.

Profit sharing and a qualified retirement plan profit sharing contribution are not even close to the same thing. You need to know more about the contract. Or, as you suggest, consult a professional who understands government contracts.

There is a "cash flow" PTE, but these facts do not appear to qualify.

How does one deny “other reimbursement amounts” if payment is by debit card and the card is not shut off?

I think the case for non-owner employees being treated as not retired if the employer still treats them as employed is pretty strong, but the elements of being employed have to be there, such as reporting on Form W-2. The bureaucratic hassle and expense to the employer of maintaining the employment formalities are a safeguard against a charade solely for accommodation of an individual tax dodge.

If you are talking about an owner (whether or not 5%) or owner's spouse, I think there is sensitivity, but I do not have any authority or experience to offer that the IRS has that sensitivity. This is even less definite than sham terminations in the context of distribution, which get a lot of discussions and have at least some IRS attention. I believe this is particularly acute in professional organizations, such as law firms, that allow partners to maintain hobby employments after "real" work production is finished, although this phenomenon is dwindling in the cruel realities of the marketplace. Finding bright lines is difficult; you have to go with gestalt. Unless the plan fiduciary is comfortable with the "come get me" approach -- which frankly is pretty safe in our non-enforcement environment, I would look for indicia of employment and evaluate the services and economic value to the employer to make admittedly subjective judgments about retirement status, and then try to establish some objective criteria to use for administration.

Sorry, this is out of my league. This appears to be a government plan and government plans live mostly by their own rules, complicated by use of unique terminology, which among other things, prevents you from translating the government planspeak into information that might be useful for analysis. You need a professional, probably a lawyer, who is familiar with the NYCER plan to unravel this.

I was just complimenting Lou S.

So you are now going to report your conclusion based on "Lou S says"? That is a decent answer on these Boards, but pretty lame in the wild world.

It is difficult to respond with any confidence without full information, and you will not be able to provide full information here. You will not be able to get a competent, correct, and complete answer here. You (your mother) needs professional assistance to evaluate and pursue her interests. However, it may help to get some learning and guidance here if you provide some additional information here, and it would be better if you started a new topic rather than confuse or divert a current topic. There is a "Start New Topic" button at the top. Additional information to provide: What is NYCER? Is the pension a defined benefit pension plan? Is the employer a government or government instrumentality or a private company? Did your father start his pension benefits before or after the divorce, or before or after his death? In what form was the pension paid -- if being paid (e.g. single life annuity, joint and survivor annuity)? What forms of payment are allowed by the plan? Where did the "death benefit come from? Did your father remarry? If so, was it before or after his pension payments started (if they started)? Possible outcome, based on ignorance of relevant facts and assumptions to fill the gap: Your father did not remarry and he started his pension after the divorce. The pension plan provides that participants unmarried at the time of start of benefits can receive only a single life annuity. This is a common pension plan design. That means that your father would receive pension payments for his lifetime that would cease at his death and no further payments would be made to anyone regardless of beneficiary designation. The pension plan operated properly and your mother gets nothing. That does not mean she has no claim against your father's estate because of the pension failure, but that is where you leave the realm of this website and need personal professional advice.

Perhaps you could edit the following; I cannot make out your point: "An order is a QDRO whether the plan determines that the order is a QDRO. In fact, courts may overrule plan QDRO determinations."

If the employer wants to give the former employee $900, then the over-distribution should be returned and the plan made whole in accordance with proper correction principles, the employer can pay $900 in a separate transaction. Unless it is done this way, the IRS (and state taxing authorities) can assert some tax violation, such as evasion of payroll taxes. The IRS sees payments in an employment situation first as regular salary or wages. The taxpayer/employer can be put in the position of showing a payment is something else (which usually has better tax consequences to the taxpayer than ordinary salary/wages).