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Distributed too much in the QDRO

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mc_serge

Junior Member
What is the name of your state (only U.S. law)? CA

When my divorce started it was realitively friendly - not so much now. To distribute my 401k via a QDRO I just divided it in half - however I paid into it from 1997-May 2010 (date of our seperation) but we were only married from 2002-2010 (so the amount I split was incorrect). So I gave her too much - is there any way to recover this money or is it a mistake i just need to live with? Thanks.
 


mistoffolees

Senior Member
What is the name of your state (only U.S. law)? CA

When my divorce started it was realitively friendly - not so much now. To distribute my 401k via a QDRO I just divided it in half - however I paid into it from 1997-May 2010 (date of our seperation) but we were only married from 2002-2010 (so the amount I split was incorrect). So I gave her too much - is there any way to recover this money or is it a mistake i just need to live with? Thanks.
It's probably too late to do anything about it. However, to be sure, what the the order say (word for word, but without the names)? And when was the order finalized? And was the money already distributed?

However, note that it's probably not as big a deal as you think. The only amount that could have excluded is the actual contributions. The growth since 2002 would be marital. The market was down in 2002, so the contributions since 2002 plus growth since 2002 would probably account for most of the total, anyway.
 

tranquility

Senior Member
However, note that it's probably not as big a deal as you think. The only amount that could have excluded is the actual contributions. The growth since 2002 would be marital. The market was down in 2002, so the contributions since 2002 plus growth since 2002 would probably account for most of the total, anyway.
Once again, words matter. California is a community property state, not a marital property one.

Courts can calculate the amount to apportion the amount (subject to ERISA limitations) based on money or time in a defined contribution plan.

Money is a difficult calculation and is calculated by taking all the different contributions and determining their nature each year. (community, separate, or a bit of each) Then, for that year, calculate the earnings for each type and take the prorata fraction. (Marriage of Behrens, 137 Cal. App. 3d 562)

Time is the way the courts usually determine the allocation is based on time unless a spouse demands a money calculation and has the information required for the calculation.
 

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