QDRO MODIFICATION

[Mongo]

I had a QDRO done back in 2015 (California).  My date of marriage were 12/2000, my date of separation was 5/2011 and divorce was final on 11/2014.  I was looking over some old files and the figure used for the QDRO was gathered from my 401K Plan on 12/2015, and lets say it was $362K higher than the plan balance on our date of separation. The alternate payee received close to 300K (compared to the $216 I believe she should have received) which was separated and placed into an IRA for her.  As far as I know she hasn't taken the payment yet.

Do I have any grounds to appeal this?  They clearly used the wrong valuation date in my opinion.  What options do I have? Or am I just missing something?

Below is what my plan guidelines outline for AP.

Amount to be paid to the Alternate Payee.  This order hereby awards, assigns and grants to the Alternate Payee and, as otherwise provided in this Order, the Plan shall pay to the Alternate Payee an amount equal to ____ percent of the total account balance of the Participant’s account accumulated under the Plan as of [specified date], plus any interest, earnings, investment income, gains, and increases, or losses, attributable thereon from such date until the date of total distribution to Alternate Payee.  For purposes of determining the value of the Participant’s account in the Plan, outstanding loan balances as of the relevant date (shall or shall not) be taken into account

[JM]

Hello Mongo, while it is possible to amend the existing QDRO or perhaps enter an IRA transfer order to take back any possible overpayment (both of which must be approved by the court first), I wonder if there really was an error in the amount transferred to your prior spouse.   In CA the amount typically awarded to an alternate payee in a 401k QDRO is "50% of the date of separation balance" (assuming there is no pre-marital separate property), but that amount is then adjusted by investment experience from the date of separation through the date of payment or rollover to an IRA in alternate payee's name.  So is the $300k she received due to earnings on the initial $216k award?  If you look at the SP500 and other indices of stocks/bonds, that increase of about $84k seems in line to me.  

[david rigby]

The answer by JM is reasonable: the amount transferred should be adjusted for earnings.  However, contributions are not earnings, so any contributions (EE or ER) made after the reference date (eg, date of separation) are usually excluded from this adjustment.  Check carefully.