Non-Vested 403B

My ex agreed to the following split on his 403b:

There is $20,000 in his 403b with Duke. I am to receive 70% of the $20,000. I agreed to give him the house in order to receive $15,000 from the 403b. I, on my own, discovered yesterday that he isn’t vested in those funds. Vesting is after 5 years of service, if he quits or is fired he is not entitled on anything. He is only vested in the $5000 he is guaranteed according to the ED. If he quits or is fired there are no funds for me to get 70%. He has been employed there for 2 years.

My attorney told me the QDRO could cost $2000. I feel that paying more money to her for the QDRO is just a waste as there is no guarantee that I will ever receive those funds.

My attorney never asked if he was vested and if I could actually receive the money. Shouldn’t my attorney have already known his vesting before we reached the agreement?

He lied about the status of tax debt that he was already under agreement with the IRS. I have documentation from the IRS showing he hasn’t made a payment for 5 months. In mediation he stated he was 2 months behind. He agreed to take the tax debt, but is not paying.

If he lied on the ED, is it still valid?
What do you think about risking $2000 for $15,000 that is not real money?

Both vested and not vested retirement benefits are divisible.
If there were items undisclosed at the time of an ED settlement, you may reopen the matter.
I cannot advise you on the benefit of having the QDRO drafted as I do not have all of the facts in your case, and a complete financial analysis is beyond the scope of this forum.

Ok, but he gets NONE of the funds until he works there for 5 years. He has only worked there for 2. He never worked at any job more than 3 years. What happens then?

If that is the case, I would advise you not to settle for the 401(k).

Actually, it is too late. My attorney never asked if he was vested, nor did she confirm he was paying on a payment plan to the IRS. He took the IRS debt in the ED, but hasn’t paid them in 5 months, and the last payment he made in April bounced. Wasn’t it her responsibility to get the facts rather than take his word for it? Or did I misunderstand why I hired her?

In the event you do not receive the funds as outlined in the agreement you may sue your ex for breach of contract.