Saturday, February 16, 2008

Wife who couldn't get her ex-husband to file correct QDROs for nearly six years gets the Nebraska Supreme Court on her side. Blaine v. Blaine, S-06-927, 275 Neb. 87 Wife and Husband divorced in October 1998 and the divorce court ordered the Husband to draft Qualified Domestic Relations Orders (QDROs) for two qualified accounts and one individual retirement account to give half of the accounts to the wife as of February 3 1998. The husband did not finally accomplish completing the QDROs until 2006, six years later. The trial court and the lawyers must have assumed they could divide IRA accounts with a QDRO, a dangerous and mistaken assumption. See Qualified Domestic Relations Order HandbookBy Gary A. Shulman Section 21.01 and Bougas v. Commissioner, T.C. Memo 2003-194 In the meantime one of the 401k accounts had declined considerably in value. Some of the accounts had moved into other assets such as IRA. After the wife instituted contempt proceedings the husband prepared the QDROs and the judge awarded the wife have of the accounts current value. Nebraska Supreme Court, with Justice Stephan dissenting reverses and orders the trial court to direct the husband to issue correct QDROs or other orders to divide the retirement assets and finding a way to give the wife half the value of the assets as of February 1998. Blaine v. Blaine, S-06-927, 275 Neb. 87 "(The Nebraska Supreme Court) remands the cause with directions. Specifically, the district court is directed to (1) determine the value of each of the disputed accounts as of February 3, 1998, and (2) supervise the entry of QDRO’s transferring one-half of the February 3, 1998, value of each account to Stephanie. I f the balance of any of the accounts is insufficient to satisfy the award, then the district court, assisted by the parties, should determine how Dennis will comply with the decree. Justice Stephan dissenting argues the majority erred by equating ownership in the disputed retirement accounts with their value as of the target date of February 3 1998. "The majority would have the husband bear the risk of any decline in market value from target date until the entry of the QDRO, even if that entry were accomplished in a timely manner, and the wife would lose the benefit of any appreciation in the value of the assets during the same period. The decree does not direct this. Instead, the decree is entirely silent as to how market gains or losses occurring after the target date and prior to entry of the QDRO’s are to be treated by the parties in dividing the retirement plans “equally.”


Anonymous said...

"Dennis argues that because the I ntrust account was an I RA,
instead of a 401K, no QDRO was actually necessary to distribute
the funds. The accuracy of that contention is not entirely
clear, at least as far as the tax consequences are concerned."

Directly from the case
Jeanelle R Lust

stan_sipple said...

the cited QDRO handbook suggests using a letter of instruction to the IRA custodian informing it of the divorce and the necessity of dividing the IRA. The case the Supreme Court cited showed how the husband who winged it got hit with a taxable distribution and the 10% early withdrawal penalty