If my ex-wife rolled over her entire 401k before I got my 1/2, what do I do now?

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If my ex-wife rolled over her entire 401k before I got my 1/2, what do I do now?

We got divorced 10 years ago. I haven’t got around to to rolling over my 1/2 of her 401k as noted in QDRO. I thought it would always be there and I’d collect interest on my portion. I finally decided to roll over into an IRA. After filing my paper work to do so, I find that she already rolled over the complete account. The company she worked for had gone out of business and she immediately rolled over the 401k to an IRA. The investment company informed me that the account was closed. How do I get my 1/2?

Asked on May 31, 2012 under Family Law, New Hampshire

Answers:

John Grubb / John K. Grubb & Associates, P.C.

Answered 8 years ago | Contributor

You need to consult an attorney in your area immediatley.

A QDRO alone does not mean anything -- under Federal law it has to be served on the Plan Adminstrator for the 401k and then accepted or rejected by the Plan Administrator.  Once it is accepted then the Plan Adminstrator divides the account in accordance with the QDRO.  Evidently the QDRO was never served on the Plan Adminstrator in your case.

Even though the QDRO was not served on the Plan Administrator most divorce decrees have wording that not only awards you one half of the 401k, but also divest your wife of one have of the 401k.  In most states she will be viewed as a "constructive trustee" holding one half for your benefit.  It will be necessary to sue your ex for your one half.

Again, immediatley go hire a local attorney to handle this for you.

John K. Grubb


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