QDRO Legal Advice Requested

Community Leader
Registered: 09-25-2003
QDRO Legal Advice Requested
4
Mon, 03-17-2014 - 8:39am

So, my decree was written with a specific dollar amount for our 401ks.  Since the divorce was final over 8 years ago, I finally got around to it (my ex woudn't agree to the QDROs that were sent to him, the decree does not state who is responsible for the QDROs, and I had some lawyers who did not do the QDROs despite my requests for the 8 years).  Anyways, my current lawyer states that since the decree does not stipulate anything about the earnings (and/or interest), that I am only entitled to the specific dollar amount listed.  To compound matters, the last lawyer I had wrote up the QDRO with earnings, then my ex's lawyer objected, so the last lawyer (without communicating this to me and without getting my agreement), amended the QDRO to the listed the dollar amount (i.e., I will have to return the earnings which now amounts to 75% of what was originally transferred to me since the base amount accumulated so much in earning.)

My objections are that:

1.  The intent of a 401k is to invest the money so that it grows in value.  Therefore, I should be entitled to the earnings on the base value.

2.  I have already spent thousands of dollars on a QDRO lawyer, for which my ex refused to agree on the drawn up documents.  Therefore, I should be entitled to the earnings.

3.  The divorce decree states that my ex's 401k is "approximately $XXXXX," which, again, shows that he was belligerent in NOT providing the documents with exact amounts. 

Are there any lawyers who would argue in my favor, or are my attempts at getting the earnings on the 401k futile?

Community Leader
Registered: 09-25-2003
Thu, 03-20-2014 - 11:47am

Ugh.  I wish I would have met this lawyer before I hired the one I have now.  She is much more logical, down-to-earth, and factual with a plan of action.  :(  She mentioned that I have a malpractice case.  The irony is that the only malpractice lawyer is my first divorce lawyer who I fired for various reasons (yelling at me, being an hour late for a meeting, and taking me out for a drink when I thought we were meeting to go over my case).  Two of my previous lawyers let the statute of limitations run out on an issue I asked both of them to pursue, and now, one of them has refused all communication with me AND filed an amendment to a previous order, acting on my behalf without ever informing me of what was going on, and changing what we had previously agreed to.  Really?! 

We go forward.

iVillage Member
Registered: 11-28-1999
Tue, 03-18-2014 - 4:52pm

In a malpractice case it's the standard to do it on a contingent fee basis.  that is not allowed in a divorce case (for ex, trying to get a portion of the interest on the retirement plan).

Community Leader
Registered: 09-25-2003
Mon, 03-17-2014 - 6:42pm

Thanks for the feedback.  I just scheduled a meeting with a different lawyer for a second opinion.  Unfortunately, I have been told that I do have a malpractice case, but I really am tired of the legal system.  My ex is extremely argumentative, and, in this case, it was to his benefit.  My divorce took over three years in the court system, and, frankly, I think the judge(s) should have thrown the book at him, more.  I also had an emergency order of protection during the proceedings, and one year after the divorce was final, I had a standard OOP...you get the picture.  Therefore, I just wanted the divorce to be final because I was so fragile, emotionally.  At this point, I tire of the arguing, but I also feel that I should have what is rightfully mine.  It's just that with each new judge and each new lawyer, he gets the benefit of the doubt, as it seems like his history of behavior is wiped clean with new "players."

I will make a determination on  the new lawyer.  Just curious, do many lawyers work for a percentage of the result vs. the standard hourly wage?  To "put your money where your mouth is" mentality, I was thinking of playing that angle IF this new lawyer thinks I have a case.  THANKS.

iVillage Member
Registered: 11-28-1999
Mon, 03-17-2014 - 10:15am

I am an actual divorce lawyer and I wouldn't even attempt to argue this on your behalf without seeing the documents so I think you just need to consult a lawyer in your state in person.  If you have already consulted one, then you could get a 2nd opinion.  I can see some issues here.  Usually if a QDRO is required, the divorce decree should say who should pay for it (usually the cost is split if you have to hire a specialist to do the paperwork).  And actually here, you can have one done for less than $1000 so I do wonder why you had to pay all that money.  If your ex didn't provide his retirement statements at the time of the divorce, why was that ok?  I would never agree to do a split of assets of any kind without seeing the actual documents.   I wouldn't accept "approximately" cause how do you know if the person is telling the truth?  You might have a malpractice case against your lawyers--it's ridiculous that it took 8 yrs to get one--this should be done in a few months and right after the divorce.  Or you might have a contempt action against your ex if there were things that he was supposed to do that he didn't do--again, all very complicated.