Dividing The Declining Value Of A 401k

oklahoma city divorce lawyerQuestion:

My financial advice on divorce question has to deal with delays in withdrawing 401k money post divorce.

My ex-wife was awarded the right to claim 50% of my 401k. The value of my 401k account at the time of my divorce six years ago was $100,000.

The current value of my 401k is $40,000, and my ex-wife now wants to claim her right to 50% of the account, but says it should be 50% of the value at the time of the divorce, not its current value?

How much is she entitled to since she took so long to proceed with this claim? She was also supposed to pay half of the QDRO preparation, but she never initiated the process.

Answer:

This answer only includes general divorce help for men since I am only licensed to practice in Oklahoma and am thus unable to provide any legal advice on divorce on the laws in other states.

If the divorce decree grants her 50% of your retirement account then she has a right to execute on the order.

That being said, your ex-wife should not be awarded $50,000 (half of the value of the account at the time of the divorce as you indicated), but merely 50% of the total marital portion of the retirement account.

For example, if your account has declined by more than 50% simply do to market forces, then such decline should also affect her portion.

If you have taken money out of your retirement account (subject to penalty) then her portion should not be reduced from the value of the account at the time of the divorce.

Of course, if you have continued to add to the retirement account since the decree was entered, such contributions and the interest, if any, accrued thereon would not be marital property.

If your ex-wife wishes to execute on the decree and obtain a QDRO order, and the decree requires her to pay one-half of the expenses, then you have no obligation to work to obtain the QDRO until she has covered her portion of the expense, as I suspect that any attorney that will draft the QDRO will require to be paid in advance.

Once she pays her portion of the retainer you should pay yours and provide to the counsel your retirement information.

Assuming that the decline in your retirement account is due to market forces, and not your actions, her portion of your account should be 50% of the current value of the account, assuming no additional contributions have been made.

Please understand that my opinions are based upon the limited facts that you provided to me. For a more in depth discussion of fathers rights and legal advice on divorce, I urge you to contact a family law attorney

To set up an appointment with a Cordell & Cordell mens divorce attorney, including Brock Ellis, an Associate Attorney in the Oklahoma City, Oklahoma, office, please contact Cordell & Cordell.

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One comment on “Dividing The Declining Value Of A 401k

    My ex-wife continues to not pay her half to have the qdro performed. Mean while, I am stuck not being able to take “my share” and move it around as we have to have it divided first. Can I force her to have to pay her half of the fees to have the qdro performed?

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