First of all it is HER share computed at the Valuation Date that will be adjusted for gains and losses from the Valuation Date to Distribution Date. Your remaining share at the Valuation Date and deposits that you and your employer make to your account after the Valuation Date will not factored into the calculations.
The calculation of her share will be made, if at all, by the Plan Administrator.
Having said that, however, IRA Custodians cannot or will not adjust for gains and losses. Most of them have their own forms that make it very clear that if the IRA Retirement Benefits Order directs that the Former Spouse will receive $100,000, and seven years go by, she still gets $100,000 Gains and losses are disregarded.
TIAA CREF has taken the position that it will no longer adjust for gains and losses. The Valuation Date in all cases will now be the "Transfer Date", that is, the date on which the payment due to the Alternate Payee is segregated by the Plan into a separate account for the use and benefit of the Alternate Payee.
A problem has recently surfaced when Plan Administrators have outsourced the QDRO review and approval functions to a Third Party Administrator (“TPA”) (e.g. Fidelity, MassMutual, Vanguard, Voya, Alight, Empower), or has changed TPAs between the Valuation Date and the date of distribution to the Alternate Payee. The TPA will not have the historical records available to adjust the amount due to the Alternate Payee for gains, losses and investment experience from and after the Valuation Date. It will only be able to make such adjustments from and after the date that it became the TPA.
But will the parties be able to compute gains and losses themselves? On the TSP website the parties can compute the gains and losses by using the online program at https://www.tsp.gov/share-price-history/
In my home state, Maryland, the case of Reynolds v. Reynolds, 216 Md. App. 205, 85 A. 3d 350 (2014) discusses the proof necessary to prove the increase in value of the wife’s IRA from the date of marriage to the date of divorce. Said the CSA:
"The trial court found that Wife's IRA was worth $30,443.28 when the parties were wed and $133,519 at the time of trial, but there were no records indicating the account's balance during the intervening time. Wife proffered evidence of the rate of return on U.S. Treasuries and argued that the trial court should impute at least that rate to the $30,443.28 IRA balance when the parties were wed, and so find that approximately $64,000 of the balance at trial was non-marital property. The court, however, reasoned that it was unclear whether the IRA contained U.S. Treasuries, and found that "it is not clear that the treasury bill rate is an accurate reflection of the growth that may have occurred in this account." The court concluded that it "was not willing to speculate" that the U.S. Treasury rate reflected the IRA growth, and therefore it found that the non-marital portion was exactly $30,443.28.
"We agree that a trial court could, in principle, attribute a reasonable rate of return to assets, and that the rate on U.S. Treasuries would be a conservative estimate of returns for nearly any asset. But the present case required the trial court to reconstruct accounts long neglected and lost and factor in possible losses, withdrawals, and deposits, of which there remained no record. Such complex financial accounting was beyond the scope of the court's ordinary fact-finding ability, and it required expert testimony, which Wife did not provide. See Gallagher v. Gallagher, 118 Md.App. 567, 578-79, 703 A.2d 850 (1997), cited in Walker v. Grow, 170 Md.App. 255, 273-77, 907 A.2d 255 (2006). We therefore conclude that the trial court did not abuse its discretion when it took account of its own limitations and refused to speculate as to matters beyond its knowledge." (Emphasis supplied.) I have a stockbroker friend who has used the Trusuary rates to make such computations.
Other options include taking the value of the Alternate Payee's share as of the Valuation Date and using an average of the Dow Jones Industrials, the NASDAQ, the S&P 500 and the Moody’s bond rate as of Valuation Date and as of the current Distribution Date. Apply the average of the yearly percentage changes to the Alternate Payee's share from the Valuation Date to the Distribution Date and you have the amount due to the former spouse. I have done this many times. It always seems to work out to 5.X%.
If is possible that the Alternate Payee's share is defined as a percentage as of the Valuation Date and that the Participant (and his employer) never makes any further contributions to the account. In that event gains and losses will self adjust.
Even if the Alternate Payee's share is defined as a hard dollar amount as of the Valuation Date, and that Participant (and his employer) never make any further contributions to the account, you simply divide the Alternate Payee's share by the total in the account as of the Valuation date and create a fraction what will then automatically adjust for gains and losses.
But all of these options ignore what can happen in those 7 years. Read my attached Memo "Consequences of Delay". Your ex is the one who is potentially in trouble. Make sure you have names someone other than your ex-wife as the beneficiary of your account if you die. You would be surprised how many people divorce and never remove their former spouses as their beneficiary. Whoops.
Good luck.
David
CONSEQUENCES OF DELAY 02-14-2025.pdf