401k valuation date

[grampafred]

What is the name of your state (only U.S. law)? NY

My daughter is nearing the end of a divorce. Her husband has been a drug addict and was recently demoted at work because of this. Despite being employed by a massive nationwide company, he chose never to contribute to a 401k plan or save money by any other means. My daughter however has contributed to her 401k plan for many years and has been carrying 75% of the house expenses for some time due to his refusal to pay more into the household.

Wanting it over quickly, she agreed to split everything 50/50, including her 401k, which her attorney told her she had no choice about, that the 401k is always split down the middle in NY. The final papers just signed, her attorney told her that the 401k valuation must be based on the date she filed for the divorce in 2007, when it was worth $80k. It is now worth $50k of which he will receive $40k, which certainly doesn't seem fair.

She did some research and learned that it seems her lawyer gave her incorrect informtion, and that the stipulation could have been worded to state that the 401k valuation would be based on the final decree date, and that rather than a value put on it, it could have been split based on number of shares, which would have been more fair. Her lawyer is disputing this information. Would these have been options here, and if so does she have any recourse with her lawyer?

Thank you,

Fred

 

[LdiJ]

What is the name of your state (only U.S. law)? NY

My daughter is nearing the end of a divorce. Her husband has been a drug addict and was recently demoted at work because of this. Despite being employed by a massive nationwide company, he chose never to contribute to a 401k plan or save money by any other means. My daughter however has contributed to her 401k plan for many years and has been carrying 75% of the house expenses for some time due to his refusal to pay more into the household.

Wanting it over quickly, she agreed to split everything 50/50, including her 401k, which her attorney told her she had no choice about, that the 401k is always split down the middle in NY. The final papers just signed, her attorney told her that the 401k valuation must be based on the date she filed for the divorce in 2007, when it was worth $80k. It is now worth $50k of which he will receive $40k, which certainly doesn't seem fair.

She did some research and learned that it seems her lawyer gave her incorrect informtion, and that the stipulation could have been worded to state that the 401k valuation would be based on the final decree date, and that rather than a value put on it, it could have been split based on number of shares, which would have been more fair. Her lawyer is disputing this information. Would these have been options here, and if so does she have any recourse with her lawyer?

Thank you,

Fred

If her attorney isn't willing to go to bat for her, then perhaps she needs another attorney.

 

[grampafred]

The problem is she was relying on her lawyer for correct information, and it seems he may have not been well-informed or just lazy.

 

[mistoffolees]

What is the name of your state (only U.S. law)? NY

My daughter is nearing the end of a divorce. Her husband has been a drug addict and was recently demoted at work because of this. Despite being employed by a massive nationwide company, he chose never to contribute to a 401k plan or save money by any other means. My daughter however has contributed to her 401k plan for many years and has been carrying 75% of the house expenses for some time due to his refusal to pay more into the household.

Wanting it over quickly, she agreed to split everything 50/50, including her 401k, which her attorney told her she had no choice about, that the 401k is always split down the middle in NY. The final papers just signed, her attorney told her that the 401k valuation must be based on the date she filed for the divorce in 2007, when it was worth $80k. It is now worth $50k of which he will receive $40k, which certainly doesn't seem fair.

She did some research and learned that it seems her lawyer gave her incorrect informtion, and that the stipulation could have been worded to state that the 401k valuation would be based on the final decree date, and that rather than a value put on it, it could have been split based on number of shares, which would have been more fair. Her lawyer is disputing this information. Would these have been options here, and if so does she have any recourse with her lawyer?

Thank you,

Fred

What does the decree say about the 401k specifically? If it simply says she owes him $40 K, then it's going to be tough to change. OTOH, if the decree says that he gets 50% of the 401K, currently valued at $40 K, she has more leverage.

In any event, I would find a good lawyer and ask if there is grounds for modification. If the time between the valuation date and the issuance of the decree is long enough, she MIGHT be able to argue that circumstances justify a modification - particularly if everything was split exactly 50:50 at the time.

 

[grampafred]

Thank you. I have passed this essage along to her. It seems to me that the fairest way to do this since everything was supposed to be 50/50 would have been for it to say 50% of the SHARES, and not the value. That way, he would get 50% of the value at the time his portion is split out. Of course, any man with integrity would not be taking half his wife's retirement account when he chose never to open his own, but that's another story.

 

[Ohiogal]

Thank you. I have passed this essage along to her. It seems to me that the fairest way to do this since everything was supposed to be 50/50 would have been for it to say 50% of the SHARES, and not the value. That way, he would get 50% of the value at the time his portion is split out. Of course, any man with integrity would not be taking half his wife's retirement account when he chose never to open his own, but that's another story.

You are OUT OF LINE. It is marital property.

 

[Bali Hai]

Thank you. I have passed this essage along to her. It seems to me that the fairest way to do this since everything was supposed to be 50/50 would have been for it to say 50% of the SHARES, and not the value. That way, he would get 50% of the value at the time his portion is split out. Of course, any man with integrity would not be taking half his wife's retirement account when he chose never to open his own, but that's another story.

Well then, I'll point out the women without integrity who do the same thing!!

 

[Silverplum]

Well then, I'll point out the women without integrity who do the same thing!!

That's only fair.

 

[grampafred]

I didn't mean to get anyone riled up. I guess you have to live the situation to understand my statement. When you see one person in a marriage who has solely taken care of the kids with no help from the marital partner, dealt with school problems and teachers, carried 75% of all bills while working as many and more hours than the other, sometimes working 2 jobs to accomplish this, and did responsible things like maintaining savings and stock accounts with only her own money, and voluntarily opening a 401k account to plan for her future, when the marital partner refused to do any of the above after years of pleading, and also refused to ever allow his partner to even see a paycheck and instead gave her a flat amount per week which covered about 25% of all bills, you feel it's a bit unfair that he's getting 50% of everything except for her 401k, which he is getting 80% of. If you think that's fair, then you're entitled to your opinion, but I don't think I was out of line, and in fact I think it was rather generous of my daughter to agree from the get-go to a 50% split and not "go for the jugular" as many do, especially considering that he dragged the entire family down with his alcoholism, drug addiction, enormous expenses incurred after a DUI, and "I couldn't care less who I effect" attutude all these years. I'm talking about what's fair considering all circumstances, and not just based on the letter of the law. Thanks for listening -Fred.

 

[mistoffolees]

Thank you. I have passed this essage along to her. It seems to me that the fairest way to do this since everything was supposed to be 50/50 would have been for it to say 50% of the SHARES, and not the value. That way, he would get 50% of the value at the time his portion is split out.

That's why I asked for the specifics of the decree. Even fairly minor changes in wording can have a big effect on the results, so you're not going to get very useful answers unless you provide the wording of the decree.

Of course, any man with integrity would not be taking half his wife's retirement account when he chose never to open his own, but that's another story.

One thing you'll learn is that emotions don't matter, nor does what you think is right matter. The court will rule on the law, not what you wish the law said or what you wish the other person would do.