NJSBA Family Law Section

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  • 1.  Gains and Losses Post Complaint on a 401(k) Plan

    Posted 11-21-2021 06:14 PM
    Dear Listmates,

    I want to wish you all a very happy Thanksgiving holiday in advance.

    I have a client with a sizeable 401(k) plan.  The MSA - not drafted by me - provides that the alternate payee will get 50% of the coverture value plus gains/losses since the date of Complaint.  There is no Marx language in the agreement.  Since the date of Complaint my client has been very activley managing the account and wants to know if he will be responsible for any losses his ex may suffer from his management of the account that would not have occurred had he done nothing.

    He wants me to guarantee that he will not be held liable and, cautious attorney that I am, obviously do not want to give him said guarantee without a substantial legal basis. 

    I would graciously appreciate any guidance or assistance my more learned colleagues may have on this particular issue.

    All the best,

    Kathy Wagner 







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    Katherine Wagner Esq.
    Somerville NJ
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  • 2.  RE: Gains and Losses Post Complaint on a 401(k) Plan

    Posted 11-22-2021 10:58 AM

    Hi Kathy,

    I've dealt with this a couple times. I had a client who sold the 401k at the low when covid hit and the judge gave him no credit for what he thought was the right thing to do. I recommend my clients offer the spouse the option to keep his/her half of the money in the current 401k investment, or to have her share professionally managed, or invest alongside and parties share gains and losses. I think disclosure is the key- because if you play the market without the other person knowing and giving them an out, a judge will hold you liable for losses.

    Tom

     

    Thomas R. King, Esq

    O: 973-750-8348 Fax: 888-576-8997
    www.njfamily.law - www.njdivorce.law - www.thomaskingesq.com

    45 Broadway, 2nd floor, Denville, NJ 07834

     

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    Original Message


  • 3.  RE: Gains and Losses Post Complaint on a 401(k) Plan

    Posted 11-22-2021 07:28 PM
    Why not ask one of the experts?
    Try Judy Deer ,Esq., of AllPro QDRO.

    Francine M. Aster, Esq.


    Original Message