In February of 2005 the Family Court in Wake County, NC approved a consent order awarding Husband just over $106,000 in retirement funds to be paid to him from his Wife's 401(k) by way of QDRO.  The requisite documents were never submitted to the trial court, and the ordered amounts were never transferred from Wife’s IRA and 401(k) accounts to Husband.

16 years later Husband requested transfer of the funds.  The North Carolina Court of Appeals ruled that Husband's request was barred.

Husband not only wanted the funds from 16 years earlier, but also all passive appreciation on those amounts!  While Husband was claiming his action was simply to "finalize" the terms of a 16 year old divorce decree, the Court of Appeals found that Husband's request for division of Wife's retirement accounts, to include passive gains, was in actuality a Rule 59 request that should have been made within 10 days of the date of the Order.

In addition the Court found that the nature of the Order, that it was by consent, raises a very high bar preventing modification.  Without a showing that there was, in fact, no consent, or there was mutual mistake or fraud, the Order will be upheld.

The Court did not address the issues of the Statute of Limitation or laches, "After conducting de novo review and “consider[ing] the matter anew and freely substitut[ing our] own judgment for that of the trial court[,]” Jackson, 238 N.C. App. at 353, 768 S.E.2d at 25 (citation omitted), we nevertheless uphold the trial court’s ruling."

So the moral of this story is to follow the rules laid out in your divorce decree.  If you wait too long, any award you are entitled to receive could be barred.

Guy Vitetta

Charleston SC