Old QDRO Dilema

[Time Forward]

I got divorced in 2007 - at that time, my ex-wife was awarded 50% of my 401K.  A QDRO was done stating this.  She never took the money out - the Plan never divided the money, I even got a loan from the 401k twice (which I should not have been able to do before they split the money).   The loans have been paid back.  Fast forward to 2017, she is wanting the money and is unfortunately, not using a QDRO lawyer, just a divorce lawyer, so she keeps writing the Order wrong to the Plan Administrators. 

The first time the Plan Administrators told her the Order must clearly specify whether loans are included in the participants account balance prior to any calculations and to submit an amended draft or court-filled QDRO .  The lawyer answered that wrong. 

Second time, they asked for historical statements issued by the previous plan administrators and provide an amended QDRO containing a specified dollar amount to be awarded.  Unfortunately, that was in 2000 and the previous plan says they don't have that info.

Her answer is to sue me - a Motion to Modify Postdivorce Domestic Relations Order.  Anybody have an idea how to respond to this?  Any thoughts would be appreciated.

[ESOP Guy]

Your facts are a little confusing.  It might be you aren't sure of all the facts. 

You say a QDRO was done in 2017.  Was if brought before a judge and made official?  Did the plan accept the QDRO as qualified?  One of you might have to talk to the attorneys who helped do that QDRO.  They might have records from the judge and plan.  If the DRO was accepted by the plan as qualified and thus a QDRO and they failed to split the accounts the plan has an problem as they didn't do their job.  If there was in fact a QDRO in 2007 then your ex-spouse doesn't need another QDRO to get her funds she needs the plan to do its job and split the account.  It is their problem to get the needed data. 

If the 2007 DRO was never accepted as qualified then there are other issues. 

I would advice to the plan administrators and see if they have any records regarding if the DRO was determined to be qualified by the plan and thus a QDRO.  If so, then find out why the account wasn't split.  If not, see if they have any records why not.  Also, if not then there is no need to modify anything as there was no previous QDRO to modify. 

There is a good chance you are going to need an attorney in my opinion. 

[ERISAAPPLE]

If the old QDRO was done then you (or she) could get a copy from the court.  If the plan already accepted it, they should accept a second copy.  

That doesn't solve what your account balance was back in 2007 (or 2000, as your question mentions both years).  If the plan received the QDRO and accepted it, it is supposed to have a record of her account balance.  That is required by ERISA.  If it does not, the easiest and quickest approach would be for you and your ex to agree on a number and submit a new qdro with that number that supercedes the prior QDRO.  I realize of course that such an agreement is easier said than done.  She will think you had $100 billion in 2007, and/or you had only $10 in 2000.  If you are like most people, including me, you will probably be prone to remembering that in 2007 you had only a few bucks and maybe some pocket change and lint in your account.  You will have less leverage because the lack of records was the plan's fault, not her fault.   Hopefully her old attorney would still have your ex's file and it will have a statement from your 401(k) account in 2007 (or 2000).  Your attorney might have your file with statements.

If the QDRO was never done, never submitted to the plan, or the plan rejected it, your ex has to start over.  In that situation, coming to a quick agreement is also most like the easiest approach.  You might have a little more leverage because it would have been her fault or her attorney's fault.  

It may be that in 2007 everyone agreed that 2000 was an appropriate date.  Was that when you got married, but you already had the 401(k) before you were married?  It could also be that back then nobody could get the data , and everyone kicked the can down the road without having complete data.  That brings me back to the same position.  Just come up with a number and see if you can get your spouse and her attorney to agree to it.  Get a new QDRO that supercedes the old QDRO (if necessary) and that awards your ex that number, and move on.  You should consider getting a family law attorney to make sure the matter is fully resolved from your perspective.  

 

 

 

[MoJo]

I would agree with ERISAAPPLE that if you can agree on a number, then get a new DRO to supersede the old one.  One way to figure out what your balance was at the time (or close to it) of your divorce is to check the court records - many time in a divorce, each party must make "full disclosure" of all assets and liabilities (and sometimes opposing counsel requests - through "discovery" copies of statements that prove the balances).  I know this from "experience...."  Typically those records are not public - but a party ought to be able to see the court files and that may be a starting point for negotiations.

Beyond that, the "plan" should have records - but frankly, if there was a change in service providers in the interim, it can be difficult to obtain past records.