Legal Question in Family Law in California
I am in the process of finalizing a divorce and dividing a 401k that belongs to my spouse. His attorney was ordered to prepare the QDRO (I don't have an attorney) and I don't think he's following the normal procedures. He insists that he do the calculations and put an amount instead of be percentage as ordered by the court. I have the sample QDRO from the company and they do the valuation by the date's and and percentage or a specific amount can be given. His attorney valued the plan at the date of marriage for the full unvested amount, when he was 40% vested, increasing his separate property and also deducted a loan that was paid of before it went to trial and there was nothing in the court order about the loan.
Is there a rule about using a vested amount vs. total amount when the account became vested during marriage?
2 Answers from Attorneys
The company should do the calculations based upon their records given the date of the marriage and the date of separation. Consult with an attorney to review the papers and the facts and explain your rights. The other attorney will not protect your rights.
There are two ways to divide the retirement. You're getting taken advantage of based on what you're saying. But you're lucky enough to realize something is wrong here. Too many people make the mistake of thinking that the spouse's attorney is a neutral and find out later down the road how wrong they were. Note I'm talking about potentially losing thousands to tens and maybe hundreds of thousand in retirement benefits depending on the length of the marriage case.
Do not rely on the plan administrators as they are only concerned with the minimal requirements for a QDRO. They are not protecting your rights and what they say may not be an adequate division of the retirement. For instance there are situations in separate property can be inflated and under the QDRO you're receiving less later.
Absolutely get your own attorney.
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