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Matthew Lee Gouaux

Matthew Gouaux’s Answers

5 total

  • Can I be 100% vested in 401K employer contributions if laid off 10 days before 5 yr anniversary?

    Vesting schedule is 100% for 5 years. I am over 50 years old, got laid off 10 days before reaching 5-year anniversary. Can I get the entire 100% vesting for the employer match?

    Matthew’s Answer

    The longest permitted vesting schedule for employer contributions after 2006 is (a) 3-year "cliff" (that is, 1 year = 0%, 2 years = 0%, 3 years = 100%) or (b) 2 to 6 year "graded" (that is, 1 year = 0%, 2 years = 20%, 3 years = 40%, 4 years = 60%, 5 years = 80%, 6 years = 100%). So if the Summary Plan Description or other plan document says you're not vested at all until you earn 5 years of service, you're probably looking at an old version of that document. You're former employer or the plan administrator can provide you with a new one. And, yes, you likely have earned 5 years of service because as, another commenter noted, 1,000 hours in the relevant 12-month period counts as one year.

    P.S. This communication is not intended to and does not create an attorney-client relationship or constitute legal advice, and should not be relied upon as legal advice.

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  • Do I need a CPA or an Attorney to set up a SELF DIRECTED IRA so I can purchase investment REAL ESTATE thru the IRA

    I have been researching online about setting up a self directed IRA that I can purchase real estate through. I need an LLC set up and a custodian so that the custodian can purchase the duplex through the IRA. If it an attorney such as your...

    Matthew’s Answer

    You may be able to set up an LLC on your own, and you certainly could contact any number of financial services companies about the IRA. However, I would strongly encourage you to seek the advice of an attorney with a solid understanding of ERISA (the Employee Retirement Income Security Act of 1974) particularly ERISA's prohibited transaction provisions, regarding this transaction.


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  • Is there an attorney who is experienced with Federal Employees Benefits?

    Under the Federal Erroneous Retirement Coverage Corrections Act (FERCCA) will give many employees and annuitants placed in the wrong retirement system an opportunity to choose between the Federal Employees Retirement System (FERS) and the offset p...

    Matthew’s Answer

    As a starting point, you might take a look at the OPM website, which has a lengthy FAQ and two Employee Decision Guides that you may find helpful:

    Employee decision Guides:

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  • Is my mother eligable for surviving spouce benefits?

    The retirement booklet says, "In order for your spouse to qualify, you must have been married to each other one year immediately preceeding the earlier of your retirement or your death." He retired in 1984, they married in 1985 and have been marr...

    Matthew’s Answer

    The language "earlier of" in the quote above means the relevant date is the date of "retirement" if that date is before the person dies.

    This would be consistent with the general rule under ERISA that if a retirement plan participant is not married when benefit payments commence, benefits ordinarily would be paid in the form of a single life annuity (a monthly benefit for the participant's lifetime only) unless the plan permits the participant to choose a different form of benefit.

    You may find the following information from the Department of Labor, Employee Benefits Security Administration's website helpful:

    "Can a benefit continue for your spouse should you die first?
    "In a defined benefit or money purchase plan, unless you and your spouse choose otherwise, the form of payment will include a survivor’s benefit. This survivor’s benefit, called a qualified joint and survivor annuity (QJSA), will provide payments over your lifetime and your spouse’s lifetime. The benefit payment that your surviving spouse receives must be at least half of the benefit payment you received during your joint lives. If you choose not to receive the survivor’s benefit, both you and your spouse must receive a written explanation of the QJSA and, within certain time limits, you must make a written waiver and your spouse must sign a written consent to the alternative payment form without a survivor’s benefit. Your spouse’s signature must be witnessed by a notary or plan representative.

    "In most 401(k) plans and other defined contribution plans the plan is written so different protections apply for surviving spouses. In general, in most defined contribution plans, if you should die before you receive your benefits, your surviving spouse will automatically receive them. If you wish to select a different beneficiary, your spouse must consent by signing a waiver, witnessed by a notary or plan representative.

    "If you were single when you enrolled in the plan and subsequently married, it is important that you notify your employer and/or plan administrator and change your status under the plan. If you do not have a spouse, it is important to name a beneficiary.

    "If you or your spouse left employment prior to January 1, 1985, different rules apply. For more information on these rules, contact the Department of Labor toll free at 1.866.444.EBSA (3272).

    For more information, visit or contact an attorney licensed to practice in your state.

    I hope his helps.


    This answer is for informational purposes only under the AVVO system, its terms and conditions. It discusses general legal principles, trends, and considerations and is not intended as specific legal advice regarding your question. Each state has different laws and the answer could be different if all the facts were known. This answer does not establish an attorney client relationship.

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  • Is it possible to sue my ex husband for military retirement, 401K, company stocks, etc., now 3yrs after the fact?

    My ex left me for a 25YOF in Trinidad W.I. 31/2 yrs ago. he moved to Trinidad several months before the divorce was even filed. When it came time to negotiate the terms of the divorce, in particular, his military retirement and 401K he threatened ...

    Matthew’s Answer

    To obtain an interest in your former spouse's 401(k) plan account, you would need to obtain a court order known as a "qualified domestic relations order" or "QDRO". You likely would need a similar court order to obtain an interest in a military pension. It is not uncommon for such orders to be issued years after a divorce has been finalized; however, local law and the terms of your divorce decree may affect your right to go back to court to seek such an order. If you intend to pursue your former spouse's retirement benefits, you should notify the employer who sponsors the retirement plan or the plan's administrator, ask that a hold be placed on his benefit payments, and ask what steps you need to take to obtain a QDRO (or other similar order with respect to the military pension). A family law attorney licensed in your state, who is knowledgeable about retirement plan matters, should be able to give you more specific advice regarding your rights.

    Best of luck.

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