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Does a QDRO satisfy this 401(k) stipulation in my decree of dissolution?

Bellevue, WA |

I was working on getting a QDRO finished for the clause below when my ex announced that this is not satisfactory and that I must pay her in cash.

$4,603.50 from husband’s T-Mobile 401(k). Husband shall make this
payment in full within one year (by June 1, 2011).

Obviously, I missed the court's deadline either way so I'm trying to get it resolved as quickly as possible but I don't have the money to pay cash. Does the QDRO that sets up an account in her name satisfy the requirement, or do I need to pay her directly?

I just noticed that in the PROPERTY TO BE AWARDED THE HUSBAND section it states: Husband’s T-Mobile 401(k) less 50% of its value as of the Date of Separation ($4,603.50) to the wife. This is why I had been working on the QDRO instead of trying to find a way to come up with a cash payment.

Attorney Answers 4

  1. Best answer

    The decree says her cash comes from your 401(k). Only a QDRO can do that. Your ex will need to pay taxes on the $4,603.50, but she volunteered for that when she said the money had to come from your 401(k). Depending on her tax bracket, there may be very little tax to pay. The upside for your ex is that she doesn't have to pay any penalty.

    The biggest problem I see for the two of you is your fight is going to cost more in attorney fees than it's worth. Ask your 401(k) manager for a sample QDRO form they will accept. Then hope your ex recognizes it is not worth fighting over this. Be sure you communicate with her in email so that you can show a court you were trying to the right thing.

  2. You need to have an attorney review the orders, interview you, review your 401(k) documents, and then advise you.

    This AVVO Answer is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney responding, and no attorney-client confidentiality. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Answer is general in nature and may not apply to the factual circumstances described in your question. The applicable law and the appropriate answer may be different in the State or States where the relevant facts occurred. For a definitive answer you should seek legal advice from an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation. Your question and the attorney’s answer may be used for promotional or educational purposes

  3. If the Decree does not specify how the payment is to be made, then a QDRO whould be sufficient but for the fact that you have already missed the deadline in the Decree. The problem is she can take you to court to enforce the Judgment long before you will be able to get a QDRO approved and a court must sign off on the QDRO meaning you will have to give her notice of the hearing to sign off on the QDRO. I don't think the QDRO is the best way to go under the circumstances set forth above,

    The information is for general information purposes only. Nothing stated above should be taken as legal advice for any individual case or situation.

  4. The Qualified Domestic Relations Order is a way for you transfer the money and protect the parties tax position. I would suggest that whatever was negotiated in your agreement should stand and that if you need a qualification or more time, go back to court as soon as possible. Good luck and take care, Happy thanksgiving.

    Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.

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