QDRO Modification - $3.07 that could cost me $1000

North Carolina Divorce Law Divorce and Separation Answers
1

Erin,

In our ED Consent Order signed by the judge, it states that his 401k as of DOS will be distributed to me. Problem is the DOS is Jan 21, the QDRO that was submitted by attorney who used the balance as of Jan 31 statement, not DOS of Jan 21. There is now a $3.07 discrepancy. My ex-wife is refusing to sign an amendment with notarized signature of agreement stating she agrees with the correction of LOWERING the amount payable by $3.07. Her 401K plan will ONLY distribute an amount as of the date of separation Jan 21, even though the consent order specifically states the amount payable, the balance as of Jan 31.

Is the following procedure correct?

  1. File Motion to Modify QDRO

  2. File Calendar Request for / and certificate of Service
    Type of Setting: OTHER: ENTRY OF AN ORDER,
    Issue to be heard at this setting: OTHER: AMENDMENT OF QDRO
    Discussion with opposing party concerning hearing: X attempted contact, have not received a response

  3. File a Notice of Hearing and certificate of service
    stating that I will bring the following for hearing: Entry of Order - Amended QDRO

  4. Bring a corrected AMENDED QDRO ORDER to court for Judge to Sign on hearing date.

I am at a loss to what I should write in STEP 1: the Motion to Modify the QDRO? I cannot find examples of modification in NC and wish I knew what is required in this first step?

Have I covered all the steps? Any suggestions on what to include or where to find QDRO modification examples.

My attorney has already billed me for the incorrect initial QDRO filing and offered to submit correction for another $1,000. I really would like to try this myself, as it is only a $3.07 discrepancy.

Thanks, for your response to yesterday’s question!
Felix

2

The QDRO has not been entered, so it does not need to be modified. I suggest you make the corrections to the document and set the same for entry of order.

3

Erin, sorry I was not specific, QDRO that was submitted (signed by judge and sent to the plan admin) by attorney who used the balance as of Jan 31 statement, not DOS of Jan 21. The wrong amount was entered, the plan admin stated I must get this corrected?
Are my steps outlined correct, most concerned I am missing something.
Felix

4

QDROs are not necessarily “modifiable” as say child support, or alimony. The original order must first be set aside.
You will need to file a motion for relief from judgment pursuant to rules 59 and 60 of the rules of civil procedure, set the matter for hearing, along with a hearing for entry of the new Amended Order, following the steps you list.