Divorce but no Qdro, what are the ex's rights?

[Guest Curious901]

I divorced 6 years ago. The settlement agreement allowed for a 50/50 split of the 401k. A Qdro was never developed. I have since remarried and am 18months from retirement. Do I still have to split the 401K and give half to my ex? I have been reading the boards and it appears that my ex has no rights to the 401k after I remarried. Can anyone help? Qdrophile?

[david rigby]

The rights of your ex to any portion of your plan account are determined by a QDRO. Period. If the settlement specifed there will be a split, then it appears the problem is a lack of a QDRO, not the passage of 6 years. Probably you and/or your ex should be discussing with your attorneys the proper way to adhere to the terms of the settlement.

I'm only an observer. As a non-attorney, my advice would be to consult with your legal counsel. (Perhaps I already did that.)

[JDuns]

Under your divorce decree you are legally obligated to pay half of the account balance to your ex. If you fail to do so, you could be subject to contempt proceedings if your ex tried to claim them.

These boards generally talk about the plan's obligations. If your employer's plan never receives a QDRO, your ex would not be able to recover from the plan any benefits that the plan pays to you. Your ex would be able to sue your for those benefits however.

Hope this helps.

[QDROphile]

I agree with others that from the perspective of the plan, the only thing that will affect your benefits will be a QDRO. However, some plans will restrict payments to you if the plan administrator becomes aware of a domestic relations proceeding that involved division of your benefits, even if the proceeding concluded six or seven years ago. The restriction may last until there is some satisfactory resolution, although there is an outside time limit. All plans will restrict your benefit upon receipt of a domestic relations order, even if the order is not qualified. Your settlement was probably within some document that a plan would treat as a domestic relations order. If the plan is not aware of any domestic relations proceeding that involved division of benefits, the plan will pay your benefits as provided under the terms of the plan.

The consequences of not providing your former spouse with a share of benefits before the benefits are distributed to you is a matter for state law. It is likely that there would be adverse consequences to you, but I don't think anyone can tell you what they are without knowing all of the details of your situation. Subject to that caution, unless you think neither your former spouse nor her heirs will ever come after you or the money, it is probably going to be a lot easier and cheaper to take care of the matter before you apply for your benefits. Among other things, if you get the money from the plan before you reach resolution, you may get taxed on her portion instead of her.

[Locust]

Your former spouse is probably expecting the payment from the Plan. He or she probably isn't aware that a QDRO is necessary to get it.

If you go ahead and take the payment, you might have some explaining to do to the judge who signed your divorce decree. In my state the court has continuing jurisdiction to enforce its divorce orders.

I'd go back to your divorce attorney and ask him or her what to do.