QDROphile

Absolutely not. It would be a breach of fiduciary duty to interfere with exercise of a participant's rights unless the plan has received a domestic relation order. However, check the plan's QDRO procedures. Some plans have adopted procedures that go beyond the requirements of law that must be taken into account. The DOL informal position on the subject is incorrect as a matter of law. Check the statute. The applicable court decision interprets it literally.

I agree that the DOL was self serving and disingenuous and does not want to expand its enforcement over small nonprofit employers.

No plan can comply with the 403(b) requirements and the "non-ERISA" requirements. One may take comfort that the DOL will not go after a plan that carefully threads the needle of the embarrassing DOL guidance.

1. What does the plan say? 2. Rethink your comment about the match and see #1. 3. Are you new to this business? The interplay between the compensation limit and the deferral limit was mildly interesting for a while, but that was years ago.

While you are correct that it relieves a fiduciary of some potential liability to appoint another fiduciary to be responsible for a function, the practical value of the appointment depends on the function. Pure custodial responsibility is not a liability-prone function, which is why being a directed trustee is nice work. The appointing fiduciary also must be prudent in choosing the appointed fiduciary and must monitor. We are not sure what monitoring means in many cases. The DOL will almost always charge the appointing fiduciary with failure to adequately monitor when the DOL charges a breach of fiduciary duty.

But what about participants who are former employees?

All of the responses assume that cash is rolled over. Taking stock is another matter, but might be accommodated if the plan were sure that the stock would be immediately "put" for 100 percent cash, and not for cash plus a promissory note. Nonetheless, a 401(k) plan could accommodate everything.

Has somebody determined that the LLC can maintain an ESOP?

If the documented and court-approved terms of your divorce included your right to some portion of your former husband's retirement benefit, and nothing has changed since (your remarriage is not a change unless the terms of the divorce provided for remarriage to change matters), then you still have that right. In order to get the benefit as a matter of right from the plan itself, then you must have a court issue a domestic relations order that satisfies certain legal requirements and submit the order to the plan administrator. If the order satisfies the requirements, the plan should determine that the order is a "qualified domestic relations order" -- a QDRO -- and should pay you benefits directly. Among the requirements for qualification are a description of the benefit awarded to you in your divorce. The plan is required to have written administrative procedures for how it processes domestic relations orders and how it determines if an order qualifies. You are entitled to get a copy without charge upon request to the plan administrator, and you or your lawyer should do that. Obtaining a domestic relations order that will qualify involves a legal proceeding, preferably in the court that handled your divorce, and the qualification requirements for a pension plan are baffling to some people, including many lawyers. It would be best to have the assistance of a lawyer with experience with QDROs. There is a remote possibility that the extreme delay in obtaining a QDRO will compromise your rights under applicable state law. Also, if your former husband retires or dies before you obtain a QDRO, your rights will be negatively affected.. Do not delay another moment. This is getting a bit technical. but submitting your divorce decree with the plan will protect your rights in certain ways while you go about preparing the QDRO document. Submitting your divorce decree to the plan will not get you any rights to benefits. Be prepared for the plan to be stupid and unhelpful, but that is not always the case.

No plan is required to have a determination letter. The issue now is the ability to get one to get comfort on substantial provision changes.

Who gets the refund depends on who paid the charge.

Though all day might be considered a slow crash. The EBIA Cafeteria Plan Manual has a preferatory summary section that would be the outline for a crash course. My intent was to express skepticism that adequate professional competence could be gained by simply attending a crash course, even the Cadillac of programs.

If you think the EBIA all-day cafeteria plans program is not a crash course for someone who wants to get paid for any aspect of plan administration, then give up the illusion that you can handle plan administration. Attending the course would be introductory training.

Why is the plan trustee's lawyer asking you a legal question about plan assets? Are you a lawyer for the plan or plan sponsor? The trust instrument controls, but if the Trustee has authority to manage plan assets, the trustee should be responsible for carrying out the transactions proposed by the trustee and complying with applicable law in the process. That includes hiring the expertise necessary for the transactions and compliance with ERISA.

Except for the 50 percent threshold under section 415, which probably will not affect anyone.

Still worth shaming. The misuse of terminology creates a quantitatively and qualitatively different impression and an appropriate impression of what is involved is important from the very beginning of contemplation of the action.

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.