Delayed submission of QDRO

[TjTired]

My ex was awarded a specific dollar amount when our divorce was finalized in March 2016 (NYS).  The amount awarded was to equitably distribute our assets.

In April 2018, his attorney drafted a QDRO specifying the dollar amount plus investment gains and losses.  I argue that he is entitled to only the amount specified in the divorce.  Can I win this argument?

Per the divorce decree, the ex is responsible for preparing the QDRO (which has been done); am I correct in assuming he is not responsible to cover the $600 processing fee charged by my 401-K plan?

Thank you.

[Larry Starr]

48 minutes ago, TjTired said:

My ex was awarded a specific dollar amount when our divorce was finalized in March 2016 (NYS).  The amount awarded was to equitably distribute our assets.

In April 2018, his attorney drafted a QDRO specifying the dollar amount plus investment gains and losses.  I argue that he is entitled to only the amount specified in the divorce.  Can I win this argument?

Per the divorce decree, the ex is responsible for preparing the QDRO (which has been done); am I correct in assuming he is not responsible to cover the $600 processing fee charged by my 401-K plan?

Thank you.

The QDRO controls; you say it says "plus investment gains". You don't tell us if it  has already been signed by the judge. 

If the judge signed it, then that's the order.  If the order is not signed, and you are sure that such language is not in line with your divorce decree, then your lawyer should be involved until the issue is resolved.  

BTW, I would suggest it is UNLIKELY that your belief is what will be upheld unless it was a very unusual divorce property agreement. 

You are correct that your ex is not responsible for your processing fee of the QDRO.

[ESOP Guy]

You are unclear when the earnings start. 

If we are talking about earnings after the split that is common they get those earnings.  I have seen a few QDROs that say the person gets X and no earnings even after split but that is very rare. 

If it is earnings from the decree to the split that can be a different matter.   You say it has been a few years between the decree and the QDRO being written. 

As Larry says if the judge as signed the QDRO that is that.  If not, there is room to make sure everything is in sync with the divorce decree. 

[TjTired]

Thank you for the opinions.

The QDRO has been signed by the judge.  My former (retired) attorney reviewed the draft, assured me that only the specified amount would be transferred, and gave the ex's attorney the go ahead.  

Investment gains and losses start on the date the divorce decree was signed by the judge.

[RatherBeGolfing]

While I'm sure it wasn't the answer you wanted, your ex really isn't getting more than if the amount was transferred on the day the decree was signed since he/she is only getting earnings on that amount.

[Adi]

With respect to the Plan's processing fee, I'd suggest checking whether the order addresses it. If not, the Plan's QDRO Procedures may have a default rule in place where a QDRO is silent (e.g., equally dividing the fee).