QDROphile

Simply allocating to separate accounts for beneficiaries is not a distribution. Without a distribution, there can be no rollover. Without an election there can be no rollover. I would also want to see plan terms that allowed a person who is not an employee or participant to roll over into the plan. I think you just have separate accounts that are waiting for something to happen. Check plan terms about distributions to beneficiaries.

Please identify the arrogant and ignorant consultant. This is appropriate for public shaming.

That is a very deep point, worthy of a lot more discussion. But I am not willing to put in the effort beyond a rant toward a lost cause. I will leave it that I applaud a plan (including a 403(b) plan) that is willing to consider doing the right thing by managing the assets. I note that a 403(b) plan is constrained in its choices for investments, so it has fewer tools for optimizing professional management compared to a 401(a) plan.

Ignorance about investment liability is part of the problem. Employers take the apparent easy way out from a very small potential liability with great adverse consequences to most of the employees. I would use a military word that begins with "chicken" and has four more letters to describe the lack of effort and interest of most employers to properly assess the options and potential liability before making decisions about how plan assets will be managed. And most advisers to the employers are equally culpable.

What part of it is the travesty? I think the travesty is that individuals who are not equipped to make investment decisions for retirement assets are forced into that responsibility by the ignorant fears of their employers.

It is an abomination to have participant directed accounts. It is the expectation of ERISA that the investments be managed by a fiduciary (and its advisers). Since 403(b) plans come from the retail insurance rip-off tradition, it may seem strange that some protection and responsibility have emerged into the light.

I think the plan should deny the claim for a change in the benefit and see if the participant can provide authority in the claims review process for requiring the plan to make a change that is not within the terms of the plan. ERISA has been interpreted as based in equity, so concepts like estoppel and laches go both ways. Not that it applies directly, but you are aware that section 414(p) and the ERSA counterpart says that a domestic relations order is not qualified if it requires the plan to provide a benefit that the plan is not designed to provide. Changing a form of benefit after the benefits start in good faith would seem to be similar as a concept as well as a specific QDRO statutory provision.

A representative of a plan should not get involved in suggesting anything that involves the fairness or propriety of a division of the value of the benefit. The plan can comment on technical aspects, such as the division must address the A, B, and C components, but not how much of any component should be assigned to the alternate payee. You stated that the participant "went into receipt" so I assume that he is receiving annuity payments and the exercise is directed at determining the amount of each payment that will be paid to the alternate payee instead. If anyone is concerned about value down to the decimal point, the form of benefit should be taken into account. If the alternate payee is the contingent annuitant under a J&S annuity form of benefit a 50 percent (of anything) share would not necessarily represent an "equal" division. But that is of no concern to the plan. The plan is agnostic.

The same policy goal that requires certain contracts to be in writing to be valid.

Segregation of assets is not required until there is a distribution that could jeopardize the evaluation of the order and the implementation of an order that is determined to be qualified.

This is the problem: “Upon receipt of A WRITTEN NOTICE of a domestic relations order, the Plan Administrator will…” That is not what the law requires and you are creating complexities and issues that need not cloud the processing of domestic relations order. Most of the discussion above is the result of venturing into the unnecessary to achieve uncertainty or worse.

And think about the rules preserving the ESOP rights of the participants -- it ain't just cash.

The plan can make its case that the participant ratified the percentage (or was otherwise partially responsible for the lack of prompt correction) in VCP.

You need to speak to the court clerk about what is necessary to submit for consideration and about the schedule. These matters are affected by local rules and procedures and how busy the court is. I expect that one of the things that will be needed is a notice to your former spouse that the proposed order has been submitted to the court for approval. He is entitled to object and will have some amount of time to respond. Again, how that is handled and how much time involved is a matter of local court rules and procedures. Navigating the last part is a bit intimidating because it seems strange and overwhelming in detail, but usually the court clerks are helpful in guiding you in what you need to do. In California, they have prescribed forms for just about everything, and you do not need the joinder package. You are beyond that stage in the process. Just tell the clerk that you have a proposed QDRO and the plan has reviewed it. I really hate this terminology, but sometimes it is best understood if you say the plan has "pre-approved" the proposed form of order.

You had better read the IRS guidance about implementing the same-sex marriage court decision. It has information about mandatory and permissive effective dates.

My extensive comments are on your other post "QDRO -- Ex Won't Sign." You have a proposed form of order that the plan has reviewed. Delete the places for the parties to sign to avoid confusion about signatures, submit the proposed order and ask the court to issue the order. You will have to show the court that you have already been awarded the portion of the pension (by providing a copy of your other domestic relations order or referring to the other domestic relations order if it is in the same court proceeding) -- the QDRO is merely the formality needed to get the plan to implement the assignment of the portion of the pension interest to you. This new post is a distraction that is not getting you anywhere. However, to answer your question about a joinder (which assumes that you are in California),yes, by serving joinder papers on the plan, the joinder will interfere with the participant's ability to start a pension if the plan treats joinders as joinders are intended to be treated. Because joinders are a legal travesty, the plan may have a few tricks up its sleeve to negate the joinder. In any event, a joinder is only a prelude to submitting a proposed order to the court, having it issued, and then delivering it to the plan. So reread the previous paragraph and quit dilly-dallying. It is easier than it seems. You have already done most of the work. You just have to get through the request to have the order issued by the court.

You have to determine if the the "opt-out" was a properly executed one-time irrevocable election in accordance with applicable regulations and plan terms. If so, to allow participation would disqualify the plan. I will not assert that a revocable "opt-out" of nonelective contributions is impossible, but it is at best fraught with risk and complexity that should be avoided, Anyone who uses the term "opt-out" is under suspicion of not being capable of pulling off a legal "opt-out." Referring to very complex matters with correct terminology and detail is a sign of comprehension.

The trustee is the legal owner, but the owner/fiduciary can appoint an agent with respect to management of the asset and that agent can be a participant with respect to things like member consents. I would not let a participant be a custodial agent. The trick is to get the LLC to recognize the agency or keep the LLC from questioning the authority of the agent.

A rollover is not a form of distribution. It is what one does with a distribution. Rollovers are not permitted with certain forms of distribution.

A rollover is not a form of distribution. It is what one does with a distribution. Rollovers are not permitted with certain forms of distribution.

Fair enough. What are you trying to accomplish with respect to economic responsibility for the benefit? The alignment of payment responsibility with respect to each participant seems to be a determining issue. Assuming you have a free hand with the documents, separate documents for every subsidiary are not necessary, but provisions that identify what the benefit is for each participant, when the benefit is paid, and which employer is responsible for paying each participant are necessary. Remember that for many analytical and compliance purposes, each participant has a plan, but no one is worried about having a document for each individual plan. You can document that in one collection of pages or in multiple collections of pages. Adoption agreements may work for economy of paper and administrative efforts and mental organization, but the adoption agreements will probably need individualized terms to deal with whatever variations apply, such as which employer if responsible for paying the employees. NQDC plans are not as sensitive to formal requirements as qualified plans.

What you describe about the use of rabbi trusts is more or less correct. I am concerned with the less part for someone who is offering advice or information. The confusion in the terminology employed is a sign of a less than full technical understanding of the applicable principles and the law. If you are using the phrase "substantial risk of forfeiture" to explain anything about rabbi trusts, you are wrong. If you are serving up rabbi trusts to explain substantial risk of forfeiture, you are wrong.

You should ask the professional adviser who has responsibility for compliance with section 409A of the Internal Revenue Code. Even if you are not trying to achieve the answer for the employer yourself, you will have to consult that person before any final decision are made, so you might as well take the shortcut to where you need to go.

A grantor trust (rabbi trust) addresses the requirement that a benefit be unfunded. Risk of forfeiture is another matter altogether and risk of insolvency is not generally a substantial risk under section 83, section 457, or or section 409A. If you are not very clear on the concept, then you should not be dabbling in nonqualified deferred compensation unless you believe that lack of enforcement with protect against shortcomings. The field is complex, the stakes are often high, and the cost of failure is substantial.

The terms of the trust should specify whether or not matters such as proxy voting, tender offers ,and other shareholder matters should be handled by the legal owner (trustee) or another fiduciary or passed through to the beneficial owner (participant). If passed through to the participant, the participant would then direct the trustee concerning any action to take or not take with respect to the matter.