Results 1 to 6 of 6
  1. #1
    Join Date
    Jun 2013
    Posts
    4

    Default Disagreement on QDRO Valuation Date

    My question involves a marriage in the state of: CA
    Hi, my ex-wife prepared the order with her QDRO attorney recently. It looks fine to me except for the valuation date. She used the date of divorce instead of the date of separation as previously agreed on the MSA. The difference between the two is one and a half years. Unfortunately, the MSA doesn’t state it clearly at what date the division should be made. I know that in California it is common to use the date of separation as a cut-off date for property division, but she doesn’t seem to buy it. I am wondering what my chances are in the court if I do not sign the order. Thank you.

  2. #2
    Join Date
    Mar 2013
    Posts
    18,340

    Default Re: Disagreement on Qdro Valuation Date

    Quote Quoting evguenir
    View Post
    She used the date of divorce instead of the date of separation as previously agreed on the MSA. the MSA doesn’t state it clearly at what date the division should be made.
    There's a contradiction in there.

    Either the MSA states when the division should be valued or it doesn't.

    If it doesn't state it "clearly" then it doesn't state it.

    Quote Quoting evguenir
    View Post
    I know that in California it is common to use the date of separation as a cut-off date for property division,
    How, exactly, do you "know" that? Did a lawyer tell you? Did you read it in a statute? Or read it in a case decision.

    I did some googling and found plenty about QDROs but nothing on dating the division. My belief is that, in the absence of a clear and specific agreement as to valuation date in the MSA, then it has to default to the date of the divorce. Doesn't make sense any other way.

    Quote Quoting evguenir
    View Post
    she doesn’t seem to buy it.
    Of course not. I'm guessing that there is more money available to her with the more recent date.

    Quote Quoting evguenir
    View Post
    I am wondering what my chances are in the court if I do not sign the order.
    You are welcome to go back to court and argue the intent of the MSA if you like but I don't think much of your chances.

  3. #3
    Join Date
    Jun 2013
    Posts
    4

    Default Re: Disagreement on Qdro Valuation Date

    Quote Quoting adjusterjack
    View Post
    There's a contradiction in there.

    Either the MSA states when the division should be valued or it doesn't.

    If it doesn't state it "clearly" then it doesn't state it.
    There is a clause in the MSA stating explicitly the date of separation, but there is no reference to the division date as far as the assets are concerned. At that time we just split all the property at the date of separation, but didn't do QDRO. Now 5 years later she is back asking for a different date.


    Quote Quoting adjusterjack
    View Post
    How, exactly, do you "know" that? Did a lawyer tell you? Did you read it in a statute? Or read it in a case decision.

    I did some googling and found plenty about QDROs but nothing on dating the division. My belief is that, in the absence of a clear and specific agreement as to valuation date in the MSA, then it has to default to the date of the divorce. Doesn't make sense any other way.
    I am not a lawyer, of course, but that's what California Family Code Section 771 says:

    "771. (a) The earnings and accumulations of a spouse and the minor
    children living with, or in the custody of, the spouse, while living
    separate and apart from the other spouse, are the separate property
    of the spouse."

    Quote Quoting adjusterjack
    View Post
    Of course not. I'm guessing that there is more money available to her with the more recent date.



    You are welcome to go back to court and argue the intent of the MSA if you like but I don't think much of your chances.
    Does the quote above change your assessment of the case?

  4. #4
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Disagreement on Qdro Valuation Date

    It's dictum from an unpublished case, but it outlines the basic principle that the other spouse's share of retirement benefits is calculated as of the date of separation:
    Quote Quoting In re Marriage of Nghiem (Cal.App.4th March 29, 2011)
    In any event, even if Nghiem had not entered into an informed stipulation entitling her to share in only the value of the Experian account on the date of separation, her claim of entitlement to more under the terms of the judgment itself would fail. The court in a marital dissolution action has the power to divide community property, not separate property. (Fam. Code, § 2550.) Thus, the court had no power to divide the portion of the Experian account which was funded solely by Nguyen's contributions of separate property after the parties split up. And of course, having decreed a date of separation in its judgment, the court could not have meant to assign a different one to be used for evaluating the Experian account. Thus, it is clear that what Nghiem is entitled to under the judgment is half of the value of the account on the specified date of separation — i.e., half of the community property portion — which is exactly what she got under the QDRO.
    However, there is a difference between determining the spouse's share and determining the value of that share. See In re Marriage of Monbrun (another unpublished case, but with citations to the published authority),
    Under the case law, "the appropriate date of valuation of retirement or pension benefits is the date of trial or the date of payment of benefits." (In re Marriage of Marsden (1982) 130 Cal.App.3d 426, 448; accord In re Marriage of Adams (1976) 64 Cal.App.3d 181, 185-186.) The trial court correctly and appropriately applied this rule in this case.
    If you can establish to the satisfaction of the court that the MSA includes an agreement that the date of valuation is the date of separation, the court should uphold your agreement. If not, your wife can certainly argue for the later valuation date.

  5. #5
    Join Date
    Jun 2013
    Posts
    4

    Default Re: Disagreement on Qdro Valuation Date

    Quote Quoting Mr. Knowitall
    View Post
    It's dictum from an unpublished case, but it outlines the basic principle that the other spouse's share of retirement benefits is calculated as of the date of separation:

    However, there is a difference between determining the spouse's share and determining the value of that share. See In re Marriage of Monbrun (another unpublished case, but with citations to the published authority),

    If you can establish to the satisfaction of the court that the MSA includes an agreement that the date of valuation is the date of separation, the court should uphold your agreement. If not, your wife can certainly argue for the later valuation date.
    Thank you. If I understand this correctly, the first case is what applies to my situation. I solely funded my 401K account after the date of separation, so it is a separate property. The date of separation is shown on the MSA and agreed by both of us.
    In the second case there was a disagreement on the date of separation and therefore the court assigned the date of filing as that for valuation, correct? I believe it's different from what I have.
    Now my question is whether the decreed date of separation can be revised by the court. Is it even possible?
    Thank you

  6. #6
    Join Date
    Mar 2013
    Posts
    18,340

    Default Re: Disagreement on Qdro Valuation Date

    Quote Quoting evguenir
    View Post
    Now my question is whether the decreed date of separation can be revised by the court. Is it even possible?
    Thank you
    I'm not sure that's even the issue anymore.

    Now that the statute has been brought to my attention:

    "771. (a) The earnings and accumulations of a spouse and the minor
    children living with, or in the custody of, the spouse, while living
    separate and apart from the other spouse, are the separate property
    of the spouse."

    It seems that the issue is not the when, but the how much.

    QDROs don't necessarily have to be divided by percentages. They can be divided by dollar amounts.

    You have copies of the QDROs.

    Figure out what was in the accounts as of the date of separation and rewrite the QDROs to show her share as a dollar amount. Delete any reference to valuation date. Sign it. Attach appropriate account statements showing the amounts in the accounts as of (or closest to) the separation date and attach a copy of the statute.

    Then, if you have to go to court, it would seem much easier to argue the amount of her share based on the statute, than argue anything else.

    1. Sponsored Links
       

Similar Threads

  1. Valuation of Assets: Estate Tax Annuity Valuation in Ohio
    By D2Flor in forum Estate Planning, Administration and Probate
    Replies: 1
    Last Post: 01-16-2012, 09:58 PM
  2. Rental Agreements: Start and End Date Disagreement, Miscommunication
    By k1ng87 in forum Landlord-Tenant Law
    Replies: 3
    Last Post: 02-21-2011, 01:36 PM
  3. House Will Not Be Sold: How Set Value and Does This Valuation Affect Probate Costs
    By rid in forum Estate Planning, Administration and Probate
    Replies: 1
    Last Post: 03-12-2009, 11:28 AM
  4. Embezzlement: Embezzlement and Retail vs. Wholesale Valuation
    By manuel097 in forum Criminal Charges
    Replies: 3
    Last Post: 12-07-2007, 07:00 AM
  5. Property Division: QDRO's
    By Dburk in forum Divorce, Annulment and Separation
    Replies: 1
    Last Post: 11-23-2005, 01:12 PM
 
 
Sponsored Links

Legal Help, Information and Resources