QDRO - Louisiana

[jane_jones]

State = Louisiana
I have a large 401K he has no retirement. 1st quarter last year I had a balance of 100K in my account. Date of legal separation was 2/21/2000. Divorce was final in September. We have not completed the property settlement. Initially we agreed the 401K distribution would be based on 2/21/2000 date. Between 2/21/2000 and 1st quarter this year, I have lost 35% of my account due to poor market. I asked my attorney to adjust settlement and base on distribution date. At the time, I had no way of knowing the account would loose 35%. My Ex of course is fighting this. My attorney is on vacation and is not available to answer my questions. Is there any presidence in Louisiana for this situation? Do I have to give him half at the 2/21/2000 valuation date? Too me, that is not and equitable division. What if I had 20K and owed him 15K but lost 10K due to poor market. Would I be required to take out a loan to pay him the additional 5K?

Thanks for any advice

Jane

 

[Grandma B]

Think our judges must be related

The law re retirement funds was enacted to protect women who stayed home and raised families while the husband worked and earned. Unfortunately, now that most women are in the workforce and still have the bulk of the home duties(cleaning, laundry, shopping, etc., etc., etc.), they're using the law to give the husband the woman's future funds as well. Each had equal opportunity to earn retirement earnings. When one chooses not to provide for his future, I fail to see why they deserve the other's.

Are they leaving his share in your 401K until you retire?

 

[jane_jones]

QDRO-Louisiana

No. He want's his distribution now. Unfortunately, I have no control over the settlement date and I have no control over the stock market. His actions indicate that I do, however. Very abusive, threatening. Stated if I did not go with the original valuation at time of separation I'd have to deal with him. Now he wants alimony and said he'd tie up in court to increase attorney fees and court costs so I would not get it either. Just can't believe that it would be considered equal division to give him half at date of separation when current value and I'm sure value at distribution will be a lesser value. I'll let you know my attorney findings if and when he returns my call.

 

[sofla]

I am not a lawyer, and cannot advise legally, but I can see his point of view. Of course, he should not threaten to harm you and this is no way to deal with anger. However, he has every right to pursue legal recourse. He has a right to go by the original date if that was in the agreement. If you had made a bunch of money, would he have received that as well? I think the fair thing here is for you to just "take your lumps" on it and I think you will lose legally if you contest it. If he wants alimony and has a chance, if I were you I would just go ahead and settle with him in accordance with the original date and the understanding (in writing) that this is the final final settlement and he waives any right to alimony and such. He may agree to this, but otherwise, you had control over that money and the fact that it was lost is not his fault. Good luck.

JOE

 

[jane_jones]

QDRO-Louisiana

Thanks for your opinions Joe. There was no agreement in writing that was presented to a judge or signed by a judge. The 401K plan is not under my control in that I can not change it except for 4 times a year. We have 5 managers to choose from and unfortunately they are all loosing. Have you seen the stock market lately? I think everyone is loosing. Anyway, there was no way for me to know the settlement would take this long. Believe me, I wish it would have been settled last year. He had the option to get an attorney then and speed things along, but he wanted me to foot the bill so he did not get an attorney. He just consulted with an attorney on an as need basis. No attorney was present on the date of divorce to represent him. That was his choice. If the 401K had a huge gain, it would have been his right to ask for the difference and I would have been obligated to give it to him. His portion of the account is taking a loss too, not just mine. Anyway, my attorney advised that the settlement would not be considered equal in Louisiana. He also stated that he does not have a chance at alimony. During the separation he may have been able to get temporary spousal support but in Louisiana the only way you get spousal support after the divorce is final is if you can not gain sufficient employement. Well, he has a job with benefits and he also got money from the sale of our home. He can not therefore show need. Also, I'd have to be able to pay. Currenly, my take home pay and my bills are about equal. Thanks for the advice but I'll go with my attorney.

Jane

 

[Grandma B]

Sounds like good news despite Joe's male opinion. Here's wishing you a happy new life.

 

[sofla]

401K

Jane:

As a legal matter, of course you should follow your lawyer's advice. What is strange to me though is that usually separation agreements finalize a break between the spouses. What I may be thinking of is something different we have in Florida here where legal separation is not legally recognized and marital settlement agreeements must be utilized (separation agreements here cannot be used as such but other agreements such as support agreements or private agreements can be used). Also, it would seem that the distribution on the 401 would have been addressed in the sep. agreement better. So, these are mostly legal issues. Lastly, in my own situation, I actually consulted a couple lawyers since they all pretty much give free consultations anyway. The majority agreed, but 1 or 2 gave me some way off advice about fighting and trials etc. (while I could see the money they wanted escalating rapidly). So, as long as you are sure your getting competent advice, go for it! Good luck.

JOE

 

[jane_jones]

QDRO-Louisiana

Thanks Joe and Grandma B for your thoughts.

Joe, I will take your advice regarding a second opinion. I think that is good advice. In Louisiana we don't have separation agreements. You file for a 102 divorce or a 103 divorce. One requires a 180 day wait from the date of filing to get a final divorce and the other is an immediate divorce after living apart for at least 180 days. The way my attorney explained it to me the separation date is a determining date. However, a 401K is not settled on the separation date. This is not possible because a QDRO must be drafted and then submitted to the plan administrator and they must approve it. They usually make changes which must be incorporated into the legal document by the attorney. This generally takes some time. The legal document is then signed by each spouse and sent to the judge for approval and signing. Therefore, it is customary to include verbiage that states the present value of the 401K will be the balance at separation plus any gains or less any losses between the time of separation and the time of distribution. Once the judge signs the papers and submits the papers back to the plan administrator they can take 3-6 months to actually make the distribution.

I can tell you, emotionally, I've had about enough but I can not afford to take the entire hit. If I could afford it I would just to be done with him.

Jane