Full question:
In a divorce property settlement, it was agreed that the 'coverture' portion of a 401k account was to be divided via a QDRO. In the subsequent QDRO, signed by both parties, the provision was for an amount equal to fifty percent of the total account balance. The QDRO was executed and the funds transferred. 15 months later, the original account holder is demanding funds back as the amount of 'fifty percent of the total' was in excess of 'half of the coverture portion'. As she signed the QDRO after the original property settlement what liability does the other party have to re-pay the difference? Does legal council have any liability for improperly executing the settlement via the wording in the QDRO?
- Category: Debts and Credit
- Date:
- State: National
Answer:
I am unable to determine whether the coverture portion was equal to fifty percent, as the coverture portion is determined by a formula and will vary. It would be a matter of interpretation for the court to decide whether the later QDRO is invalidated or needs to be
modified to not conflict with the property settlement order. If the QDRO is in conflict, it may be judged to be an improper modification of a divorce decree which had become final and unappealable.
Generally, an attorney must exercise the proper standard of care to ensure that legal documents comply with the applicable law. The failure of an attorney to follow the accepted standards of practice of his or her profession, resulting in harm to the client, may be the basis for a legal malpractice claim.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
