participant help

I've been talking to a woman whose ex-husband "forgot" to mention one or more retirement plans as assets in a divorce settlement. The ex is a physician who is the plan sponsor. She has been researching the plans and talking to ERISA attorneys and other who are knowledgeable about plans.

Apparently there was a money purchase plan that terminated in 2010 and the assets merged into a profit sharing plan. So far as we can tell, the profit sharing plan was still in existence at the time of the divorce.

Two ERISA attorneys have suggested that she involve the IRS or DOL. I am aware of EBSA's call centers that assist plan participants. I don't know of anything similar on the IRS side.

Regardless, I'm at a loss to understand what either agency can do about the fact that the assets of the plan were not disclosed in a divorce settlement. What am I missing?

You are missing nothing.  She should be talking with her divorce lawyer, or if she didn't use a lawyer she should find one.  She has no need for an ERISA lawyer at this juncture, if at all.

Merely as a reference, it's likely most Separation Agreements include a phrase similar to:

"Both parties acknowledge and agree that prior to and at the time of the division of properties as more particularly set out in this Separation Agreement, each has made a full disclosure ..."

Her divorce attorney is telling her she needs someone with ERISA knowledge to persuade the judge to reopen the property settlement. It doesn't make sense to me.

No, that's ridiculous.  Maybe she's a lousy client and divorce attorney is trying to ditch her.

Has anyone done a 5500 search to see even if there is a plan to go after?  If so, then it is a divorce attorney/QDRO process that needs to be pursued.  If he failed to disclose the plan, then there could be a case for fraud.  In any case, this is not an ERISA attorney issue.

How much money are we talking about

What difference does it make if there is currently a plan or not?  If at the relevant time there were additional $XXX floating around which the husband "forgot" about, she may be entitled to a piece of that.  It's irrelevant that it was a qualified plan and equally irrelevant if that plan no longer exists.  

I think the suggestion was based on the supposition that *IF* it exists, it should be a bit easier to prove that it wasn't disclosed and should have been.

Well, maybe, but the original post states as a fact that a plan existed.  My point was that it is irrelevant whether a plan exists now or not because if there was a hidden asset that should have been taken into account the parties can agree to whack it up any way they wish. 

I think the point here is that if assets existed that weren't disclosed, the DR court DOES have authority to re-open the case.  Generally, only "disclosed" assets are disposed of in the divorce and any undisclosed assets are subject to claims by both parties.

What *may* have happened is that a "number" was disclosed as the balance in the PS plan - and what needs to be known is did that "number" include those assets transferred from the MPPP.  If it did, it was already disclosed and considered.  If it didn't, it's an open issue - and having an ERISA expert (attorney or otherwise) explain the difference between the PS balance that is PS money and the PS balance that is MPPP money might not be a bad idea (it's a concept that "lay people" don't always understand).

Sorry, but I have a bit of difficulty accepting the idea that a physician forgot about one or more tax-sheltered retirement funds.  Sounds a bit like an attempt to defraud the spouse to me.  I am not a lawyer, but hiding assets in a divorce situation is fraud, right?

She has 5500s for both plans, including one from the MPP from 3 or 4 years after it was supposedly terminated. Curiously, that one shows the exact same balances, income, expenses, etc. as the one for the PSP for the same year. They each show 9 participants and a plan value of slightly more than $3 million. Both she and I suspect that someone used the wrong plan information, figured it out and refiled using the right information. Someone that she spoke to suggested making the ex prove what happened with that.

She suspects fraud. (She also said she never signed an income tax return in 20+ years of marriage.) And she's a very talkative person who could very well be getting on the divorce lawyer's last nerve.