QDROphile

Are you an adviser or a scrivener?

How about the idea is confused and misguided thinking? If the employer does not want to make the benefits of loans available, then don't rather than undercut the ability of the individual participants to make their own best plans with the resources they have available to them. We might all agree that plan loans are often not the best alternative for an individual, all things considered, but I cannot accept that imposition of the employer's presumptions produces the best outcome for every participant. In fact, I would argue that in many, if not most, cases, continuing elective deferrals rather than prepaying plan loans is a better financial move. Even if the objective arguments are not persuasive, it is just offensive to have the employer presume to manage someone else's personal business at such a detailed level. Is the plan designed to require the participants to direct investment of their accounts? If so, how the employer reconcile that? We all know that employees generally do not make optimal investment decisions.

It all depends on the terms of the order, but it is extremely unlikely that anything about her financial situation or events that occur after start of pension benefit payments (other than her death or perhaps the death of your husband) would affect her benefit or the payments she is receiving. The QDRO is a property division. She got her interest in the pension at the time of divorce. Any post-divorce developments, such as her remarriage or you husband's remarriage or post-divorce financial fortunes, should not change what she got as a property settlement in the divorce.

The lawyer can pound sand. The plan does what it does. This will be an opportunity to see if the lawyer can figure out how to file a claim for benefits.

The loan can be secured by an assignment of pay at the time of loan initiation. The security arrangement operates apart from the statutes concerning payroll deduction. Most plans are either unaware or unwilling to take the administrative steps to effect the arrangement. That leaves them to deal with the payroll deduction statutes. Those statutes do not uniformly allow employees unfettered ability to cancel payroll deduction - they vary.

And I suppose that the new employer is not really interested in finding out what would be necessary to make it work. It does not involve adopting a loan program.

Somebody should ask the new employer to think about delivery of the message to the new employees that they are so unimportant that the new employer was unwilling to make a reasonable accommodation to avoid financial hardship for them.

What is the impediment to identifying them, and only them, for one of the solutions you specified? HCEs? The program for the new employer would simply be a payment program, which would not be very burdensome.

Can a final Form 5500 be filed if the plan has not been terminated?

Well, pi is irrational and transcendental; that fits the Old Testament portrayal of God in some circles.

And unfortunately, the day another great physics figure died.

The timing and complexity of Larry Star's posts cause me to retract my reference to them. I still think CJ Allen's post about what data the plan should have to provide deserves a lot of consideration, but I agree with Larry Starr that the plan has no obligation to perform extraordinary data manipulation and calculation to determine an alternate payee's benefit in accordance with a formula in the order. The plan should perform simple math on data the plan has or should have in accordance with the order. Example: The plan should compute 50 percent of the December 31, 2015 participant balance if instructed by the order, but does not have to compute 50 percent of the balance as of November 3, 2014 and the earnings thereon through January 15, 2018.

A plan will probably get away with Larry Starr's position, but I think CJ Allen's position deserves a lot of consideration. However, any petition to the drafter to come up with a practical workaround the formal requirement should be informal.

Why can't a state court ever order the holder of a non-ERISA account/annuity to give up funds? A creditor can get a court to order a judgment debtor's bank to turn over funds in the bank account.

By the way, you have to take the position that available data or the ability to compute as required by terms of the order IS part of the legal criteria because only legal criteria allow disqualification of the order and the legal basis is that an order is not qualified if it requires the plan to do something that the plan is not designed to do (subsection of section 414(p) paraphrased).

If the plan has a record date cut-off or some standard that limits what the plan will accept (à la ESOP Guy's points), then it behooves the plan to have appropriate provisions in the written QDRO Procedures to set forth those standards. We all know that drafters of the orders first review the QDRO Procedures to understand the bounds so they can draft good orders. But really, it makes disqualifying the orders more comfortable when the orders do not follow what is stated in the Procedures.

What is the contract regarding record retention and production after the termination of regular services?? It is unlikely that the record keeper is a fiduciary, so its contract defines its duties. If the plan is stuck with inadequate records before a certain date, it needs to be advised about its duties with respect to domestic relations orders that have terms that "require" data or calculations that are beyond the resources or capability of the plan. Depending on what the plan's responsibilities are, the fiduciary may need advice about its liability for not adequately administering the plan in a manner that allows the plan to discharge its duties.

As much as it makes me gag to contemplate California joinders in any capacity, if the position (questionable as it may be) is that the plan is not subject to ERISA, then the joinder approach is effective. Of course, the state law has to provide for the joinder of the plan, otherwise it is not apparent how the court would have jurisdiction over the plan or whatever the provider's product is (account, annuity?). The court could stick it to the participant and order the participant to bring about the result contemplated by the order, and then the participant could hire Peter Gulia to deal with the provider or defend the participant with respect to the contempt order.

Interesting confluence of: 1. DOL does not understand QDROs, and 2. DOL is disingenuous about ability to maintain 403(b) plan outside of ERISA.

Well, Peter, employers have all sorts of reasons to have intelligent plan design, but fewer and fewer are willing to pay for the "free" plan they get based mostly on LRMs and questionable advice about what boxes to check.

May have problems with claims for payment/reimbursement of expenses under health plan or medical flexible spending account.

However, I don't get the "additional legislation" stuff and the whole marketing approach stinks.

How has the the sham divorce QDRO been shot down? Last I saw, the courts have said that the plan does not have to (and may not) look behind a state law proceeding as to the bona fides of the intent of the parties. Facts in cases included admitted remarriage after distribution from the plan. This is what plans would want, except for the airline DB plan that had unfortunate distribution alternatives that allowed the scam to seriously game the plan from an actuarial perspective.

The story about the former spouse stripping the retirement account after the disclosure of assets and before the presentation of the domestic relations order to the plan makes this a state law domestic relations matter and not a QDRO matter. The relevant question has been asked: How much would you have received but for the improper behavior? That has to be answered in the context of state domestic relations law, too. Specifically, what would a court award as a remedy for correcting the misbehavior the frustrated the order of the court? Would it be only the amount that should have been transferred absent the trick, or would it include more because of the expense of the follow-up efforts to enforce the intended order (e.g. the lawyer's fees)? The collectibility of whatever is awarded must also be considered -- the plan is out of the picture now. You need legal counsel to help you evaluate your prospects as well as pursue your rights under the divorce order.

I agree with Mojo, for what it is worth. Unless the plan, by its express terms, incorporates terms of the CBA, the plan stands alone and its terms control plan matters.