QDRO Question

[skyspirit]

What is the name of your state? Ohio

My husband had to split his 401K with his ex. The judge specified that "during the marriage" was from the date they were married until the date of trial (April 29th 2004). The QDRO states that the funds were divided using the Sept. 23, 2004 (the date the judge signed the final papers) date.

Wouldn't the QDRO follow the "during the marriage" date of April 29th instead of Sept. 23, 2004? That's 5 months extra!

Thanks.

 

[Litigation!]

What is the name of your state? Ohio

My husband had to split his 401K with his ex. The judge specified that "during the marriage" was from the date they were married until the date of trial (April 29th 2004). The QDRO states that the funds were divided using the Sept. 23, 2004 (the date the judge signed the final papers) date.

Wouldn't the QDRO follow the "during the marriage" date of April 29th instead of Sept. 23, 2004? That's 5 months extra!

Thanks.

My response:

That's not how it works. They were married until September 23, 2004, and that's the date used for division. Why are you asking nearly 1 1/2 years later?

IAAL

 

[skyspirit]

My response:

That's not how it works. They were married until September 23, 2004, and that's the date used for division. Why are you asking nearly 1 1/2 years later?

IAAL

Because there were other issues pending...such as a van (in his name) awarded to her with the stipulation that she make payments (but never did). Van got repo'd. During the while, he had to cough up escrow in the house (which he couldn't easily do because she was delinquent on the van), which he finally did. He was ordered to pay the van off with her share of equity (which he did). He was late getting the escrow and all matters related to the divorce were delayed for whatever reason on both parts. That's why I'm asking late...

Better late than never tho.

Thanks for the info.

 

[Bali Hai]

Because there were other issues pending...such as a van (in his name) awarded to her with the stipulation that she make payments (but never did). Van got repo'd. During the while, he had to cough up escrow in the house (which he couldn't easily do because she was delinquent on the van), which he finally did. He was ordered to pay the van off with her share of equity (which he did). He was late getting the escrow and all matters related to the divorce were delayed for whatever reason on both parts. That's why I'm asking late...

Better late than never tho.

Thanks for the info.

Wrong answer.

The QDRO should have split the 401k at the time the divorce action was filed.

Why? Because the husband was making contributions to the account from the time of commencement of the action until the divorce decree was signed.

The wife would be entitled to any earnings on her portion from when the action was filed until the QDRO was executed.

 

[skyspirit]

Well then...

Wrong answer.

The QDRO should have split the 401k at the time the divorce action was filed.

Why? Because the husband was making contributions to the account from the time of commencement of the action until the divorce decree was signed.

The wife would be entitled to any earnings on her portion from when the action was filed until the QDRO was executed.

She filed for divorce in 2002--hearing date was Feb. '03, but on the date of the hearing, she dismissed the complaint in order to keep being supported. He refiled in April, '03...she drug her feet on everything so she could live in a house with all the bills paid (per temp. orders). It wasn't final until the hearing date--April '04. Judge didn't sign until Sept. '04, but set the "during the marriage" date at the hearing date of April 04. It would make sense to me that she receive 1/2 of QDRO until April of 04--not nearly 6 months later.

So--which date is correct???

 

[Bali Hai]

She filed for divorce in 2002--hearing date was Feb. '03, but on the date of the hearing, she dismissed the complaint in order to keep being supported. He
refiled in April, '03...she drug her feet on everything so she could live in a house with all the bills paid (per temp. orders). It wasn't final until the hearing date--April '04. Judge didn't sign until Sept. '04, but set the "during the marriage" date at the hearing date of April 04. It would make sense to me that she receive 1/2 of QDRO until April of 04--not nearly 6 months later.

So--which date is correct???

In NYS, the judge would have followed the law and used "time-of-commencement" values for everything, bank accounts, retirement accounts, etc. or there would have been an appeal.

Check with Ohio statues.

 

[LdiJ]

In NYS, the judge would have followed the law and used "time-of-commencement" values for everything, bank accounts, retirement accounts, etc. or there would have been an appeal.

Check with Ohio statues.

Not necessarily Bali.....judges often make rulings that are strictly according to law...or have latitude to make rulings.

Appeals also aren't automatic.....someone has to actually DECIDE to appeal...which obviously didn't happen in this case.

In any case...its probably too late to change anything now.

 

[Ohiogal]

Ohio it goes to the date of divorce -- a marriage begins with the date of the wedding and goes until the date of divorce UNLESS someone can make an extremely strong argument that it should end earlier. Appeals can only happen based on mistakes of law not fact.

 

[Bali Hai]

Not necessarily Bali.....judges often make rulings that are strictly according to law...or have latitude to make rulings.

Appeals also aren't automatic.....someone has to actually DECIDE to appeal...which obviously didn't happen in this case.

In any case...its probably too late to change anything now.

That is correct.

When courts are bias and litigants not treated fairly, it's exactly the reason for this outcry:

http://www.courts.state.ny.us/report...sionreport.pdf

 

[Bali Hai]

Ohio it goes to the date of divorce -- a marriage begins with the date of the wedding and goes until the date of divorce UNLESS someone can make an extremely strong argument that it should end earlier. Appeals can only happen based on mistakes of law not fact.

mistake of fact
: a mistake regarding a fact or facts esp. that significantly affects the performance of a contract
--------------------------------------------------------------------------------
mistake of law
: a mistake involving the misunderstanding or incorrect application of law in regard to an act, contract, transaction, determination, or state of affairs;

NOTE: In both contract and criminal law a mistake of law is a weaker ground for relief or acquittal than a mistake of fact.

In either case, these "mistakes" are ALWAYS unintentional. Correct??

 

[Ohiogal]

mistake of fact
: a mistake regarding a fact or facts esp. that significantly affects the performance of a contract
--------------------------------------------------------------------------------
mistake of law
: a mistake involving the misunderstanding or incorrect application of law in regard to an act, contract, transaction, determination, or state of affairs;

NOTE: In both contract and criminal law a mistake of law is a weaker ground for relief or acquittal than a mistake of fact.

In either case, these "mistakes" are ALWAYS unintentional. Correct??

Unintentional normally. Rules that say ALWAYS are normally wrong.

 

[Bali Hai]

Unintentional normally. Rules that say ALWAYS are normally wrong.

So much for my boy scout oath!

 

[skyspirit]

Latest discovery...

I got a copy of the transcripts from the date of Trial, 4-29-04, and here's what it says:

"Parties further agree that--Mr. Smith has deferred compensation packages with X employer and with Y employer. Those will be divided 50 percent a piece as of today's date by a qualified domestic relations order.

Parties agree that Z Company will split the costs and he will divide the pension, and that the parties will split the cost for Z Company.

Parties further agree that as of today's date, each of them--their 50 percent interest will be --any increase will be that party's increase, any decreases will be that party's decrease."

So...you can see why I questioned the QDRO. It appears that both parties stipulated to splitting the funds as of the April date...not the Sept. 23 date when the judge signed the order. The Judge's Final Order for Divorce also uses the April 23 date. The QDRO is the only place that mentions the Sept. date.

So--now what???
Thanks.

 

[Bali Hai]

I got a copy of the transcripts from the date of Trial, 4-29-04, and here's what it says:

"Parties further agree that--Mr. Smith has deferred compensation packages with X employer and with Y employer. Those will be divided 50 percent a piece as of today's date by a qualified domestic relations order.

Parties agree that Z Company will split the costs and he will divide the pension, and that the parties will split the cost for Z Company.

Parties further agree that as of today's date, each of them--their 50 percent interest will be --any increase will be that party's increase, any decreases will be that party's decrease."

So...you can see why I questioned the QDRO. It appears that both parties stipulated to splitting the funds as of the April date...not the Sept. 23 date when the judge signed the order. The Judge's Final Order for Divorce also uses the April 23 date. The QDRO is the only place that mentions the Sept. date.

So--now what???
Thanks.

The wife's attorney drafted the QDRO and the judge signed it. You have to watch them every minute.

 

[skyspirit]

Updated..

Since I brought this to the attorney's attention, he has filed a motion with the court to correct the dates on the QDRO.

There's been a date set for next month for a hearing on the matter.

I'll let you all know what happens.

Thanks!!