I was dumb and signed a separation agreement without an attorney.
It lists a dollar amount to be given to my wife from my 401k. With the market drop, the portion I have left will now be 40% less than expected when we agreed on a number, while her portion loses nothing.
She previously agreed to talk to her attorney about modifying the agreement to list a percentage.
Now she won’t communicate and I just got the motion for QDRO based on the unmodified separation agreement.
Is there a hearing for a QDRO?
Do I have any recourse to request a change to the agreement?
Our agreement is very unbalanced with the house going to her and what I thought would be 75% of the 401k going to her. Now it’s going to be 82% of the 401k going to her.
If the terms for equitable distribution are in a separation agreement, it cannot be modified without her agreement. Most separation agreements also state that equitable distribution issues are a full and final settlement and fully binding on the parties.
Unless you can prove that you entered into the contract with duress, force, undue influence, etc., you will have no recourse to modify this part of the separation agreement.
There is generally not a hearing for the QDRO. It is a court order that is entered by consent because there is an underlying binding document (ex. separation agreement or court order) that states the retirement assets that need to be transferred from one spouse to the other.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
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