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My ex wife and I recently went through mediation. I did not have any vested retirement or 401K with my employer but
Anonymous4 views4 answers
I did have a significant amount of money in differed compensation which carried special rules for distribution. In the final mediated document signed by the judge, she was to receive some deferred comp money from my employer via a QTRO. Her attorney did not do his due diligence and later discovered (long after the court order was signed) this money could not be delivered to ANYONE but me. Bottom line is this money could not be QTRO'd and the judge refused to force the company to do so. My ex's attorney is now trying to get these funds another way or other assets from me. Can this be done without my agreement? If it possible she may just lose this asset or can the judge change the wording of this or give her another asset without my consent?
Michael Raymond DaymudeLitigation LawyerSherman Oaks, CA ·
Unfortunately, no one reading your post can answer it with any certainty because important facts are missing. This is a question you need to ask your attorney. The answer is: it depends. Good luck.
It was up to counsel to know whether each retirement account required a QDRO, before the agreement was signed. If QDRO could not be used, then it was up to counsel to find that out and to find out what the plan administrator required in order to divide the account(s) in response to a divorce judgment. The order says what it says. If the terms of the order cannot be carried out or otherwise implemented due to mistake, or impossibility, then the order will have to be modified. No, your ex's attorney cannot find another way to get the funds from you without your consent. The judge already awarded the asset to her, so she's not going to lose the asset, simply because for now, no one knows how to get at it. The parties made a mistake. That mistake needs to be corrected and should be correct via court order or stipulation signed by both parties.
I am wondering why you are wanting her to lose the asset? If you made an agreement with her, and you got the benefit of the bargain, why not just cooperate and help her to get the asset that you have already agreed she should get? It would seem that would be the honorable thing to do. If everyone cooperates I am sure a solution can be found. In the meantime, if she looses significant money she might want to consider a malpractice action againstt her attorney.
The family court sits in equity and can,often, do what's fair. IIt's clear the intent was to divide the asset. If you knew the plan would not pay under a QDRO,you may have commited fraud.
You did "consent" to divide the asset. But if the court cannot--and I've not seen this before--then your wife gets to sue her attorney for malpractice.
