QDRO alternate payee's interest and award question

[Guest Enviroavenger2014]

My divorce from ex-wife was in June of 2012. The valuation date of 401/k was 9/28/2012. Because of my ex-wife and her attorney, the QDRO has not be settled yet. I got the most recent QDRO from them today. I need help understanding two items.

Line 8 of the order says that " The Alternate Payee's interest in the plan shall be $195,000.00 of the Participant's total vested account balance under the Plan as of Valuation Date. "

Then line 9 it says, " The Alternate Payee's award is entitled to earnings ( dividends, interests, gains and losses) from the Valuation date to the date the award is segregated from Participants account. "

Does this mean only the earnings of the $195,000.00 or all earnings of her part of my entire account to date. Since she has been delaying the QDRO it doesn't seem fair she should get anymore than what was in there at date of Valuation.

My attorney quit practicing to work for a charity organization so I'm flying alone on this.

I live in Houston, Texas and I appreciate any advice you can give to help me understand this better.

-J

[QDROphile]

One can always argue desserts and it is difficult to referee such arguments. Putting those arguments aside, you might look at it as though if you could have actually carved out the $195,000 and paid it to your former spouse on 9/28/2012 ("segregated"), you would have nothing to do with the amount and you would not have paid any further attention. Since the $195,000 essentially belonged to your former spouse as of the valuation date it only makes sense that the earnings and losses on that amount should go to her. Take a good look at the word "losses" to help you get an intellectual grip on the concept. If your account lost money ever since 9/28/2012, do you think you should pay her $195,000 today when you are ready to segregate the funds?

[My 2 cents]

First, it is too bad that your lawyer stopped practicing and can no longer represent you. Don't you think that you would be better off finding another one rather than "flying alone"?

I am not a lawyer, but it would be usual for the gains or losses allocated to the alternate payee to be those from the portion of the funds assigned to the alternate payee. Gains or losses on all of the assets (including those not assigned to the alternate payee) would not all be packed up to be given to the alternate payee (assuming that you or your new lawyer would be alert enough to challenge an attempt to do so). Presumably, any contributions you or your employer made since the Valuation Date would also not be part of the amount distributed to the alternate payee.