Passive gains or losses QDRO it’s all in the details


In our finally signed and executed separation agreement the specific language stated that my retirement 401k would be distributed with a $ amount stated plus or minus passive gains and losses as of the date of the execution of this agreement.

The question since this clearly states as of the “date of this agreement” doesn’t that mean as of that date, not as of the date the QDRO is done?

My attorney is saying oh no, it’s whenever the QDRO is done and she is on my side! And of course, due to market fluctuations that’s another 5 digit bite in the butt.

Please just chime in with what would be normal: what is actually written or what is just “normally” done?

Thanks… 3.8 years and counting still trying to finish…


Typically there is a valuation date for the 401(k) (date of separation or date of execution of the separation agreement) or a specific amount of retirement assets stated, and the passive market gains/losses are calculated from the valuation date to the date the money is transferred from one spouse to another.

It sounds like your agreement is written so that there is a specific amount of retirement assets and the passive gains/losses are to be calculated as of the date the separation agreement was signed. That is not typical and I’m not certain whether or not the plan administrator could calculate that.

Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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