Mike Preston

Sure, but not if the results are to be used to determine minimum funding or maximum deductible funding. If determining PBO/ABO, though, you should, IMO.

MP: In order to answer your last post could you please answer the following Q: Q1. Did you read the above facts posted by riogrande? Sure. Did you read my comment on the issue that you are now raising? http://benefitslink.com/boards/index.php?s...st&p=149173 Not one whit. What part of my response, expressing disbelief, did you choose to ignore? Oh, 100%? So be it. Absolutely not. While obviously the zeroed out portion can't come back on its own, with new benefits I find it surprising that you think it will necessarily be zero. Maybe it is. But on this one, I'm from Missouri. Show me. Let me make this clear for you: I do not believe the participant when he indicates that the cashable portion, depleted by the amended QDRO to zero dollars over four years ago, remains with zero dollars. Why do you?

It sounds like you are indeed continuing to receive your pension, which is $500/month less than what you believe your ex-spouse is receiving. Therefore what you are looking for is some sort of comfort that the amount was determined accurately. If you word your request to the PAL in that manner, you may have more success getting somebody to respond. That is, something like: I am looking for somebody to double-check the calculation of my pension benefit from the xxxxxx plan. While I am receiving a monthly benefit of $xxxx, I have reason to believe that it should be higher, due to the long-standing nature of my relationship with the annuitant (30+ years), the disparity of $500/month seems large to me. You say that you filed a claim with the plan and you also say that you don't know the legal name of the plan. Those two statements can not both be accurate, because you need to know the name of the plan in order to file a claim. If you truly don't know the name of the plan I encourage you to telephone the people you describe as the "PA" and ask them to provide you with the complete legal name of the plan. Also ask them to provide you with a copy of the Summary Plan Description and a copy of the Plan Document. You may need to request the two documents in writing. Armed with that information, your ex-spouse's legal name and Social Security Number, an attorney or other individual that has agreed to help you can contact the plan on your behalf to gather additional information, if it is necessary. Good luck.

Correct on all counts, as long as the associates plan doesn't cover *any* key employees for even an instant.

You could, if you wish, actually adress the issues raised, rather than again bring up irrelevancies. I do not question that there is a portion of his benefits which are not divisible. I question why you believe that the portion which was obviously reachable in 2002, has no increased value within which a court can reach, even though we are now 4+ years later. Ibid. Ibid. Ibid.

I agree with mjb on the doofus issue. However, finding "just" a litigator with ERISA knowledge (or an ERISA attorney with litigation knowledge) may be difficult in some jurisdictions. You need to decide how much pain you are willing to endure to fight the plan. And by "pain" I mean both anguish and expense. First, there may be some who will have a bit of difficulty conjuring up empathy for your position because the payments you have been receiving are most likely (although not with 100% certainty) higher than what a reasonable person would have expected from the plan when your benefits began. You may find it worthwhile to put your hands on documentation you sent and/or received when your benefits began which made it clear to the plan administrator that your benefits were to be determined after consideration of the QDRO. If you can't find that (and keeping something for that many years is also something that is never a 100% certainty) just be prepared for folks to at least raise that issue. Certainly the plan will raise that issue if they end up having to fight you in court. Second, if you are willing to restore the monies to the plan (and I'm not trying to suggest that you should do this, just that it is one of your options) you might consider having your attorney contact them with the idea of negotiating a reduction to your benfits that is intended to repay the plan over an extended period of time. One Idea I've seen bandied about (although there are no hard and fast rules in this area) is that the period of adjustment whould match the period of time during which the overpayment went undiscovered. That would mean a 9-year period in your case. Roughly speaking, that means a reduction from your correct pension amount of roughly 1.5 to 2 times the amount of overpayment. Hence, if your correct pension was $1,000/month and you have been receiving $1,300/month, you can expect that your adjusted amount would be somewhere between $550/month ($1,000 minus 1.5 times $300) and $400/month ($1,000 minus 2 times $2,000). Obviously, even a 9 year repayment schedule can present a significant hardship to you, given that you would be reducing your existing monthly payment from, in my hypothetical example, $1,300 to, at best, slightly less than 1/2 of that and, at worst, to less than 25%. Depending on how severe the reduction is to your benefit and, of course, how much it costs you to fight this, you have a very important decision to make. You might want to contact somebody who provides assistance to participants at either low or no cost first to see whether you can get some of the confusion stripped away. The two places I am aware of besides the one mentioned previously (which can be found at: http://www.pensionaction.org/) are: The Pension Assistance List: www.actuary.org/palprogram.asp and The Pension Rights Center: www.pensionrights.org/help/counseling.html There may be others which you can find with an internet search. My own personal opinion is that you would be well served by at least contacting an attorney with ERISA and litigation skilss to ensure that you don't do anything that would limit your rights in the future. It may be a challenge, as you point out, to find somebody locally. In that case, you should consider broadening your search. Good luck.

mjb, your responses to my comments are so off base as to be laughable. Please don't tell me to research my comments before you have done so. Where do you think the original $90k came from if the plan he is participating in only has these unbreakable annuities of which you speak? Why would his benefit structure change dramatically? What evidence do you have that it did? For some very strange reason you think I've said something other than what I've said. Go back and respond to the specifics of what I spoke about or keep your off-base rhetoric out of here. I am not talking about converting rights that have been appropriately assigned to another, nor am I talking about specifically saying that the judge will order the payment of monies directly to somebody other than the alternate payee (such as to an attorney for attorney's fees). Get a grip. And you must have absolutely no experience in family court to say that a judge is precluded from modifying a MSA after the fact, unilaterally, if one side has breached their responsibilities under the existing MSA and doesn't bother coming to court. What in heaven's name is going on? This guy needs competent advice, not arm waving by somebody who is making him believe that his ex-spouse has no standing or, even if she has standing, that the benefits are unreachable. You have no evidence of either.

1. I'll believe it when I see it. Since that took place over 4 years ago, while I can't be sure, my guess is that there are now some funds there that can be "taken." 2. QDRO's pay benefits to alternate payees. If the judge thinks that doing so is equitable, it won't be overturned on appeal. You obviously have not dealt with many family law judges. 3. An MSA is not binding on the court. It is binding on the individuals. If the individuals don't live up to the MSA the court is free to fashion a modification. 4. I don't disagree with what you say, but I don't see the relevance. If there is cash to pay a benefit that the Judge finds is equitable to order, you are going to have to find an abuse of discretion to overturn it, most likely. And that only happens if there is some rule of law that is violated. Rules of law are dependent upon family law rules in the states with jurisdiction.

It is a frequent occurrence that Mike's posts make no sense. No matter.

Huh? I can't find those words in 416 or 1.416. What am I not understanding?

I hope so.

Besides the very practical answer that I would be worried if a plan insisted on a J&S benefit of any kind, as the life expectancy of this individual is far less than what a normal life expectancy would be and the reduction under the terms of the plan would be very, very suspect. At least, I wouldn't want to be the fiduciary that went down the path of approving that form of benefit.

OK, this post has a bit more meat than the other one, but the result is essentially the same. You need to engage competent ERISA/family law counsel in Florida. Divorces are messy by nature and there is no way that you can put enough facts into a post so that somebody here can give you an unqualified opinion. You can only get competent advice from an attorney in your state. In general, I will repeat what I said in the other post: family law judges have wide discretion to make "the whole shebang" fair. That sometimes means some very unorthodox "solutions". If the only asset you have is this plan and the court finds that you, for one reason or another, owe your ex-spouse money, it is not beyond comprehension that they will take steps to get at those funds. But, as I said, you need an attorney.

Family law judges in most states have wide, almost unbearably wide, discretion to fashion settlements they think are fair. For example, if you have been asked to pay for certain expenses and have refused to do so, it is not beyond expectation that a family law judge would agree to a request from your ex-spouse to have a larger portion of your pension provided to her than was originally awarded. A modified QDRO could certainly be issued in that case. You need to check with competent family law counsel in your state to see if what is happening is something that is acceptable in your state.

Wow! My heart aches after reading all that. It sounds like you have attempted to obtain legal representation and have struck out. That is strange because any ERISA attorney would understand the issues that you are dealing with - it does not require that the ERISA attorney understand or even be familiar with union plans. Union plans are just like any other plan sponsored by a corporate entity when it comes to rights of participants and, more importantly, rights of alternate payees. But, assuming you remain unsuccessful in getting an attorney to represent you, you may benefit from one of the nationwide organizations that provide help to those who request it: The Pension Rights Center, which can be found at http://www.pensionrights.org/help.html may be able to help. The American Academy of Actuaries maintains an active assistance program which you can contact at http://www.actuary.org/palprogram.asp With that said, do I understand you that you have or had an attorney representing you as to both your pension interest and with respect to a bankruptcy? If so, you may want to confirm with him that the pension benefit you are receiving from your husband's plan is exempt from the claims of the bankruptcy court. That is the normal circumstance. From what I can gather the plan has, since sometime in 2005, been depositing your pension benefit directly into your bank account. Do I have that right? Are you continuing to receive it? If the answer to the above questions are "yes" and "yes" it sounds like you are questioning whether the amount of your pension benefit is correct, not that they have completely denied your claim to a benefit. Is that correct? I hope you get somebody to help you get to the bottom of this, even if it means that you don't get an increase: you deserve some peace of mind that the benefit you are receiving is the proper one.

When something isn't specifically defined, it means that which is obvious, if it is obvious. The word being questioned here is "participates". That doesn't seem like a difficult word to understand. If one is a participant in a plan, one satisfies that definition. If they wanted to restrict that definition in some way, by tying it for example to additional requirements such as the 410(b) definition, they could have. They didn't. Hence, the word itself means what it says. If somebody is a participant in a plan that plan is part of a RAG if the key EE status thingy is also satisfied. I'd say to stop looking for disclarity where only clarity exists.

Yes. No.

Please don't multi-post. Please post responses here: http://benefitslink.com/boards/index.php?s...c=35811&hl=

Please don't multi-post. Please post responses here: http://benefitslink.com/boards/index.php?s...c=35811&hl=

Bravo!

I © ©ode se©tions in my nightmares.

Very nice. Is this the problem that you [c)? Or is this the problem that you {c}?

I don't © what the problem is.

Yes, that is correct. I just want to make sure that my 401k administrator is advising me correctly. They are stating that the discretionary profit sharing must be given to all eligible particpants, wheter they are deferring contributions or not, according to IRS regualtion and not my adoption agreement elections. So, they are stating that if an eligible participant declines to participate in deferring money for retirement, they will still need to enroll in the plan to receive the discretionary profit sharing. Does this sound correct? It looks like you are getting more than an ear full on this so I'll try to be brief. I just want to deal with a couple of your phrases, in case it helps clarify things a bit. First, you say that something must be done "according to IRS regulation and NOT MY ADOPTION AGREEMENT ELECTIONS" (emphasis mine). If I was asked whether that statement was correct or not, without any further explanation, I would say that it is a false statement. The reason is that you must satisfy both. If you don't, then it is a BAD THING. You absolutely must insist that the contributions you make satisfy IRS regulations and are not in conflict with your adoption agreement elections. Second, you say that if an employee is not contributing their own money to the 401(k) plan, then "they will still need to enroll in the plan to receive the discretionary profit sharing." The language that you used makes it seem like you think the employee has to do something, like fill out a form, or agree to open an account to receive a profit sharing contribution. That is definitely an incorrect view of things. It is better said that the plan administrator (that would be you) must establish an account on behalf of those who are eligible to receive a contribution. You enroll them. They don't need to do anything. You do it for them. If your 401(k) administrator is saying that the employee has to "enroll" by filling out some sort of form before they can get a profit sharing contribution, they are wrong. My guess is that you meant to say that "they must have an account established for them even though they did not contribute to the 401(k) portion of the plan". If you did intend to say that, then all is right with the world. Good luck.

No, I wasn't. But it is more than just "penalties". If the money is withdrawn before the guidelines allow, not only does one have to pay the penalties, but the earnings are subject to tax. Of course, it is possible to just lump the tax in with the penalties and call all of it the cost of withdrawing the money early. Sounds like you've got all the bases covered. There are two issues here: 1) is the payroll system withholding the right amount of income tax? 2) are the amounts being invested in your Roth 401(k) account both: a) being taxed currently; and, b) eligible for the earnings exclusion? #1 is something that you can adjust if you don't like. What is withheld doesn't have any impact on the tax you must pay to the IRS (although if it is too low, you can be subject to penalties in certain circumstances). All it does is modify the amount you must come up with when you file your taxes. If you do a projection of the amount you will actually owe and you contrast that against what is being withheld, you can then modify your withholding if you don't like the result. #2 looks right to me, simply because in your original post, you did NOT put an asterisk next to the amount shown as your Roth 401(k) contribution. The asterisk indicates that the amount is being withheld from your paycheck AND excluded from your taxable earnings. Since the asterisk wasn't there, it looks like your payroll provider has done things properly.