My husband and I were married for 22 years and divorced many years ago and the terms of our divorce were 50/50 which included my husbands retirement fund. He refused at the time to give me my share telling me it was a retirement fund and I could not get it until he retired. Over the years every time I asked he gave me the same answer. Now that he is reaching retirement age he tells me that most of the money is gone due to the losses of the market although he has been withdrawing money from the fund, taking trips, building houses and pools, etc., and has rolled the money over to an IRA in his name only. He agreed to give me some of the money which is 11K short of the amount that was in the fund at the time of our divorce. He says that is all I am due. I told him that I am due the amount that was in the fund at the time of our divorce irregardless of the losses in the market because they occurred after our divorce when he refused to give me my share. Am I correct??
First, when you agreed to 50/50 split, was this in writing? Did you execute a separation agreement or was this simply a verbal agreement? If you have a written agreement, you can sue him for breach of contract if he fails to comply with the terms of the contract. If you do have an agreement you also need to look to the terms of the agreement to see if it is permissible for him to delay payment until retirement.
Passive decreases (market fluctuations) are taken into account. If the account is worth less simply because of market fluctuations, you are only entitled to half of the current value.