Transfer of marital share of IRA to ex

[chelsi]

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

My divorce agreement provides for the transfer of 50% of the marital share of my IRA to my ex.

His lawyer sent me a letter demainding that I fill out the transfer form and authorize the transfer of 50% of the entire account to my ex (my agreement provides that he get 50% of the marital portion of the account) and that I return the form to him within 15 days or he will request court intervention and legal fees of $5,000.

Meanwhile, my ex has not yet paid child support for the month of October, pays the child support consistently late, and has not paid 50% of his share of medical support for our son, which has been due since June 2009, has not paid 50% of the cost of certain house repairs required by the divorce agreement, and has not reimbursed me for 1/2 the cost of a QDRO against his pension as required by the divorce agreeement.

I actually have an appointment with the child support enforcement bureau tomorrow. Also, my attorneys were not that effective for me, made some mistakes, and ran up big bills, even charged me to talk to a secretary. My attorney delayed dealing with the QDRO's and then wrote numerous letters to my ex's attorney requesting his cooperation in distributing the retirement account, all of which went unanswered. I feel much of the delay regarding the distribution of the retirement accounts is attributable to my ex.
Eventually, I just did my own QDRO's and am handling my case post divorce.

Also, I do not think my ex's attorney knows how dilatory my ex has been with his obligations.
By the way, my ex has maxed out most of his credit cards since the divorce and has even taken peronal loans and loans against his pension. He owes somewhere around $76,000 for the credit cards, and personal and car loans alone.

I have no problem sending him the form and would like to get it done. I already figured out my ex's marital share and will indicate it on the form ( I have statements showing my non-marital contributions).

I feel my ex is being disingenuous by asking for my timely response while he is in default of several of his obligations under our divorce agreement.
Should I send him the IRA transfer form right away or should I tell his attorney to have my ex pay what he owes before I send him the transfer form? Any thoughts on how to proceed?

Would he likely get counsel fees if he sought court intervention?

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

 

[mistoffolees]

The two issues are unrelated. You can't refuse to honor a court order just because the other party also refused to honor a court order.

If it were me, I would transfer the 50% into a trust fund controlled by my attorney and immediately file for contempt and request that the IRA payment be reduced by the child support arrears. As long as it's in the hands of the attorney in trust, you're probably OK.

Note, however, that your ex may object to the use of pre-tax money (401K or IRA) to offset after tax money. Of course, that argument loses some weight when it's his fault for not paying child support.

 

[LdiJ]

The two issues are unrelated. You can't refuse to honor a court order just because the other party also refused to honor a court order.

If it were me, I would transfer the 50% into a trust fund controlled by my attorney and immediately file for contempt and request that the IRA payment be reduced by the child support arrears. As long as it's in the hands of the attorney in trust, you're probably OK.

Note, however, that your ex may object to the use of pre-tax money (401K or IRA) to offset after tax money. Of course, that argument loses some weight when it's his fault for not paying child support.

I really disagree with this advice. It would be almost impossible to do what you are suggesting without creating a taxable event.

A QDRO divides the money into two separate accounts leaving no option to place it in a trust fund controlled by the attorney.

The only way she could put it in a trust fund controlled by her attorney would be to take an actual distribution, which creates a taxable event for HER.

 

[divona2000]

...My divorce agreement provides for the transfer of 50% of the marital share of my IRA to my ex.

His lawyer sent me a letter demainding that I fill out the transfer form and authorize the transfer of 50% of the entire account to my ex...and that I return the form to him within 15 days or he will request court intervention and legal fees of $5,000...

So ex's lawyer is demanding more than the divorce decree states?
and if you don't agree ex's lawyer will charge you $5000 in legal fees?

 

[mistoffolees]

I really disagree with this advice. It would be almost impossible to do what you are suggesting without creating a taxable event.

A QDRO divides the money into two separate accounts leaving no option to place it in a trust fund controlled by the attorney.

The only way she could put it in a trust fund controlled by her attorney would be to take an actual distribution, which creates a taxable event for HER.

Yes, I had forgotten that.

Change it to having her sign a QDRO with the correct amount and have her attorney hold it until the other issues have been resolved. That would eliminate the taxable event.

 

[LdiJ]

So ex's lawyer is demanding more than the divorce decree states?
and if you don't agree ex's lawyer will charge you $5000 in legal fees?

No, the ex's attorney is threatening that if she doesn't execute the QDRO for 50% (which the attorney is obviously is either mistaken about or is misspeaking) that he will take her to court for contempt and ask the judge to order her to pay his client's attorney fees. He is deliberately exaggerating about 5k in order to scare her into compliance.

Since she apparently still has an attorney of record, it was also improper of his attorney to write her directly, instead of her attorney.

 

[chelsi]

Yes, my ex's lawyer is incorrect about the division of my IRA. My stipulation states that my ex gets 50% of the marital portion of the account, not 50% of the account. I had pre-marital IRA's that were deposited in the account. Also, part of a pension check that was rolled over into the IRA included time that I worked before the marriage.

This is what the ex's lawyer's letter stated:

"Pursuant to the Stipulation of Settlement in the above reference matter, you are required to sign the enclosed form inorder ro effectuate the transfer of fifty percent of the funds from your IRA to Richard ___. Kindly complete steps 1 through 3 of the enclosed form and sign in step 4."

If the enclosed form is not signed and received in our office within fifteen days fromthe date of this letter, we will have no alternative but to seek judicial intervention; as well as an application to cover counsel fees resulting from said court action int he amount of $5,000.00."

By the way, this letter was sent by ordinary mail and not certified mail.

I actually met my lawyer in court today when I picked up my attorney court pass. When I told him about the letter, my lawyer called it a "silly letter."
He knows I am handling this.

I also had the child support services prepare a petition for family court to address the child support and medical support issues. Then when I got home, the child support check from the ex dated "October 1, 2009" was in my mailbox and the envelope was postmarked "October 16, 2009."

Since I am handling my case post divorce, I will be writing a letter to the lawyer and am going to list all the areas of our agreement in which he is in default and request that he take action to remedy his default in those areas.

I will also remind him of the correct division of the IRA as per the stipulation and that I have requested info from the fund to perform the calculation of my ex's marital share. Then, after I receive the info. and do the math, I will send him the form. The form requires that I get a signature medallion from a bank for my signature. Shouldn't my ex pay for that?

Currently, I have 2 QDRO's pending before a judge and awaiting the judge's signature. So my own QDRO issues with his accounts are not resolved yet. But once I sign the IRA transfer form he gets that asset. Meanwhile my QDRO's against his retirement accounts are still unresolved.

Thanks very much for everyones input.
How would you handle this situation? Remember, my ex is maxed out on almost every credit card and owes about $76,000 in credit card, personal loan and auto debt. I find this real scary how he has run up all this debt.

In a response to this lawyer, would you be as threatening as he was or try a different tactic?

 

[mistoffolees]

I would simply write to ex's lawyer and point out that their demand is not in agreement with the court order. The court order is for 50% of the marital value.

I would then point out that since you are represented by an attorney, any additional questions should be addressed to your attorney.