Distribution by QDRO - Help, EX didn't reallocate

[Guest pattycake]

Hoping someone can provide some assistance with this. My husband & I divorced in Sep 07, I am entitled to half of his 401(k) as of the date of the filing of the complaint which was in August 2006. The value of my ex's 401(k) in August 2006 was approx $262K. Being that I knew I was only going to get half (131K) as of the valuation date (August 2006) , I told my ex, to place my portion in a money market acct, so that it would be stable. I of course do not have access to ex's 401(k) & am unable to reallocate his positions, or get updated statements. My ex did nothing, and 70% of his 401(k) is invested in his company's stock, with the rest invested in mutual funds. The QDRO states that I am entitled to 50% of the assets adjusted for market gains/losses as of the date of distribution, which will be in a few weeks. How do I fight this, being that the ex, did not re-allocate, as he should have done. The $262K, that the 401(k) was worth 2 years ago has dropped considerably. The reason, I have concerns, is because, as part of our divorce decree, I am to pay my ex-husband, a large part, alomost all of my half of the 401(k), as part of the buyout of my home that I get to keep. Being that he didn't reallocate, I don't know if I will have enough to pay him. Please advise what I should do

[QDROphile]

Get competent legal assistance. To get what you want, you will probably have to have the original division of the 401(k) account reformulated. Whether or not the court will do that depends on local law and custom.

[JanetM]

You are SOL unless you had an agreement in writing requiring him to move to money market or the QDRO defines a specific dollar amount. If this is participant directed plan then your only recourse to to the EX if you had something in writing.

[Guest mjb]

Hoping someone can provide some assistance with this. My husband & I divorced in Sep 07, I am entitled to half of his 401(k) as of the date of the filing of the complaint which was in August 2006. The value of my ex's 401(k) in August 2006 was approx $262K. Being that I knew I was only going to get half (131K) as of the valuation date (August 2006) , I told my ex, to place my portion in a money market acct, so that it would be stable. I of course do not have access to ex's 401(k) & am unable to reallocate his positions, or get updated statements. My ex did nothing, and 70% of his 401(k) is invested in his company's stock, with the rest invested in mutual funds. The QDRO states that I am entitled to 50% of the assets adjusted for market gains/losses as of the date of distribution, which will be in a few weeks. How do I fight this, being that the ex, did not re-allocate, as he should have done. The $262K, that the 401(k) was worth 2 years ago has dropped considerably. The reason, I have concerns, is because, as part of our divorce decree, I am to pay my ex-husband, a large part, alomost all of my half of the 401(k), as part of the buyout of my home that I get to keep. Being that he didn't reallocate, I don't know if I will have enough to pay him. Please advise what I should do

Without know who is your ex's employer is it is not possible to know how much the stock is down. Hopefully he does not work for AIG, WAMU or Wachovia. As for buying out his interest make him an offer he cant refuse. Since his interest in the house is now probably a tennancy in common it is a worthless asset because no one will buy one half of an interest in a home where you live. How about proposing that you will give up your 50% interest in the 401k plan if he transfers his 50%interest in the house to you. This gives him immedate assets and frees him from having to wait for you to come up with the cash to buy him out. Perhaps you can revise the divorce decree to cancel the transfer of the 401k assets to you so that you can avoid having to take a taxable distribution on the sale of your interest in the plan to him. You need to talk to a tax lawyer about the tax issues in transferring asserts to him upon divorce.

[K2retire]

I know it doesn't seem fair, but until the court order was issued, your ex was under no legal obligation to do anything about the investments in the plan. Although following your suggestion might have been the honorable thing to do, it is rare that people who are getting a divorce are concerned about doing the right thing for the sake of the person they are divorcing.

Be sure to consult a tax adviser as well. You will owe taxes on the QDRO amount unless you role it into an IRA. If you are turning around and giving most of it back to him to buy out his share of the house, he will receive it tax free from you. That sounds like a horrible deal for you. In most states there is no rule that each individual asset must be divided -- just that there be a division of property. Giving up your share of his 401(k) in exchange for him giving up his half of the house might be the better deal for you.

[Guest pattycake]

I know it doesn't seem fair, but until the court order was issued, your ex was under no legal obligation to do anything about the investments in the plan. Although following your suggestion might have been the honorable thing to do, it is rare that people who are getting a divorce are concerned about doing the right thing for the sake of the person they are divorcing.

Be sure to consult a tax adviser as well. You will owe taxes on the QDRO amount unless you role it into an IRA. If you are turning around and giving most of it back to him to buy out his share of the house, he will receive it tax free from you. That sounds like a horrible deal for you. In most states there is no rule that each individual asset must be divided -- just that there be a division of property. Giving up your share of his 401(k) in exchange for him giving up his half of the house might be the better deal for you.

[Guest pattycake]

I know it doesn't seem fair, but until the court order was issued, your ex was under no legal obligation to do anything about the investments in the plan. Although following your suggestion might have been the honorable thing to do, it is rare that people who are getting a divorce are concerned about doing the right thing for the sake of the person they are divorcing.

Be sure to consult a tax adviser as well. You will owe taxes on the QDRO amount unless you role it into an IRA. If you are turning around and giving most of it back to him to buy out his share of the house, he will receive it tax free from you. That sounds like a horrible deal for you. In most states there is no rule that each individual asset must be divided -- just that there be a division of property. Giving up your share of his 401(k) in exchange for him giving up his half of the house might be the better deal for you.

I did give up my share in the 401K, which was to get half of the 401k & give it right back to him as a buyout of the house. The house is already in my name, as is the mortgage. This was dealing with money issue that I owe him

[dmwe]

Each retirement plan should have a QDRO policy. I'd suggest getting a copy of that to read. I think ours requires that the participant not be able to adjust any investments until the QDRO is final. That may also protect the ex-spouse from harm should the participant attempt to adjust investments to the detriment of the ex-spouse.

Unfortunately, you're caught in this market decline with everyone else. I'd suggest getting your QDRO handled ASAP and keep as much money in the plan as you can, as long as you can, to see if the market might improve and increase your balance. Only take out just what you need, or make him wait. Once it's yours in the plan and the balance is greater than $5,000 you can't be forced to make a withdrawal.

[jkdoll2]

Each retirement plan should have a QDRO policy. I'd suggest getting a copy of that to read. I think ours requires that the participant not be able to adjust any investments until the QDRO is final. That may also protect the ex-spouse from harm should the participant attempt to adjust investments to the detriment of the ex-spouse.

Unfortunately, you're caught in this market decline with everyone else. I'd suggest getting your QDRO handled ASAP and keep as much money in the plan as you can, as long as you can, to see if the market might improve and increase your balance. Only take out just what you need, or make him wait. Once it's yours in the plan and the balance is greater than $5,000 you can't be forced to make a withdrawal.

I believe once the QDRO was complete - your spouse should have presented it to the plan administrator and your portion should have been moved to a different account ( not his) in your name - and you become a participant in the plan. You should have been able to go in and change your investments at that time. He should have never been able to keep your money in his name once it was finalized. I dont know if that was his error or the plan administrators error. But there is definetly a step missing there, something should have been done once the QDRO was finalized.