How to find old 401k balances prior to marriage to do a QDRO

[Nicole777]

Please Help, can’t find where the plan was in 1997 or balances or a statement or anything to be able to have that subtracted from a Quadro any advice? I have checked with the plan administrator. They don’t seem to know anything I checked with Fidelity before they rolled it over to an Ira. It was under one company name, but I can see that the company changed their names several different times in different various ways I looked up the 5500 form, please help 

[MoJo]

It's generally  impossible, and we don't even try.  We inform them that our records go back to when they transitioned to us, and no further back (and we have no ability to do so).  In those situations, we tell the parties that they have to provide statements, or otherwise agree on a dollar amount for the split.  If it ain't possible to do, the DRO is not a QDRO....

[Artie M]

Right, expanding on MoJo’s response…

Unless the Plan administrator can determine the amount of the benefit that is to be paid by the Plan to an alternate payee under the terms of the order, the Plan administrator will not determine that the order meets the requirements of a QDRO under federal law.  ERISA and the Code require that a QDRO that it “clearly specifies… the amount or percentage of the participants to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined.”  Simply providing a method of determining the amount or percentage of the assigned amount is not sufficient if the Plan administrator cannot apply the method (e.g., because missing information).  In such a case, the order must be reformed. 

It seems like the parties are trying to focus on assigning a portion of the plan or IRA account balance that accrued after their marriage was entered into.  Many QDROs use language relating to the “marital portion,” “marital fraction” or “coverture fraction”, which all relate to benefit accruals during the marriage; however, most of the QDROs that use this type of language relate to assignments under defined benefit plan (i.e., the traditional pension type plans).  This concept generally has little added benefit when used in relation to defined contribution plans (e.g., 401(k)s) or IRAs.  It is likely the order at hand is trying to split the “marital portion” 50/50 between the parties—but that is not required.

If the information regarding what amount accrued after the marriage was entered into cannot be found, it would be easier for the parties to determine the current account balance and determine how much of it should go to the alternate payee and how much should be retained by the participant.  That is, as MoJo states, they should “otherwise agree on a dollar amount for the split.”

Also, the split is not required to be 50/50.  For instance, the order could simply state that 25% of the account balance on some specific date is to be assigned to the alternate payee and the participant would retain the remaining 75%, or even vice a versa depending on the other elements of the property settlement.  Or, perhaps the order could state that the alternate payee is to receive $x of the account balance as of some specific date and the remainder is to be retained by the participant (in a dollar split order you just want to make sure that the account balance has $x in it as of the date specified).  The order can (and likely should) just state the split in clear and easy terms.  One more item for the parties to pound out.

[Lou S.]

Unless you kept copies of the statements, I agree with the others that it may be difficult if not impossible to recreate a 1997 starting point. Also your initial post mentions a rollover to an IRA at some point? If so you would be talking about dividing the IRA and I'm not sure if that falls under QDRO or under some other rule of law since it would no longer be in a qualified plan.

[QDROphile]

Piling onto what others have offered, it is a drag to try to determine numbers that fit the concept of how you want the benefit divided when you have inadequate records to check those numbers. However, rather than just apply a knee-jerk concept, the parties or their lawyers should have considered the availability of data in the first place and crafted a division, based on either what you know and can agree to project backwards or simply arrive at some sort of equitable division rather than cement an impossible-to-apply formula into divorce judgment/settlement. It is unreasonable to expect you to have thought of it, but the lawyers, if you had them, should have. Unfortunately, if you did not have lawyers in the divorce proceeding with an eye on an eventual QDRO, and most divorce lawyers do not have that perspective, you missed the best window and are going to have to go back and rethink how to make sense of what you do know based on records that are available. It is the responsibility of the plan to provide records that it has or reasonably should have. If the plan has terminated, or has changed administrative service providers, it is likely that the available history does not go back far enough to suit your needs. I would try on the idea that the lawyers owe you some accommodation in trying to collect and put the pieces together to come up with some solution, albeit artificial and somewhat arbitrary in some of its aspects.

[Gina Alsdorf]

If you know the recordkeeper at the time, you can ask them, sometimes data is kept longer than the required period. I just would not hold my breath on this one. Most have a six year plus current year data retention schedule.