When does a retirement account need forensic tracing?

Whenever the current balance does not reflect what is actually marital. Common triggers include a pre-marriage balance, contributions after the cutoff date, rollovers, loans, withdrawals, missing statements, a change of record keeper, or a delay between the divorce date and the actual division. It is also needed when accounts are being equalized: the marital portion should be established before one account offsets another.

How is the marital portion of a retirement account determined?

The marital portion reflects what accrued during the marriage, taking into account contributions, rollovers, loans, withdrawals, and market changes between the date of marriage and the cutoff date. The result is a specific value or percentage the plan can administer, supported by the underlying records. How the law is applied to a particular case is a question for counsel.

What records are needed?

At a minimum, the statement nearest the date of marriage, the statement nearest the cutoff date, and the statements in between with continuous coverage. If statements are missing, TOVA can run records discovery first to identify what may still be available and from which entities.

What is records discovery?

Records discovery is a separate service that comes before the valuation. When the current record keeper does not hold the full history, the deliverable is a working memo and subpoena map identifying who likely holds the missing records, the legal basis for the request under ERISA Section 209, and the specific records to request. The attorney issues the subpoenas. Once enough records are recovered, the case converts to a full engagement.

Can it be done if some statements are missing?

It depends on which statements are missing and how long the gap is. Short gaps with statements on either side can usually be handled with documented assumptions. Long gaps that include rollovers, plan changes, or major contributions should be closed first. Records discovery exists for exactly this situation.

From Date of Marriage Forward

Forensic Tracing

The current balance is rarely the marital number. We separate what is marital from what is not, recover the records others say are gone, and deliver a clear, court-ready report.

$373,000 in non-marital funds recovered in a single case, from records the plan first called unavailable.

Start a Case What It Covers

Court-defensible reports Records recovery when statements are missing Nationwide

$373K

recovered as non-marital in one case, from records the plan said were gone.

ERISA §209

the federal record-retention law. Old retirement records are rarely actually gone.

Court-ready

a written report with the source records as exhibits, built so it can be audited.

A retirement account in divorce has a history, and the current balance rarely reflects what is actually marital. Forensic tracing produces a documented marital and non-marital figure the court and the plan can rely on.

When an account needs tracing

The current balance does not tell the whole story whenever any of these is true:

The account existed before the marriage.
Contributions continued after the cutoff date.
Rollovers came in during the marriage.
Loans were taken or repaid during the marriage.

Withdrawals happened during or after the marriage.
Statements are missing for any real stretch.
The account changed record keepers.
Accounts are being equalized or offset.

None of these is resolved by reading the most recent statement. It matters even when the account is fully marital, because the result still drives any settlement that separates a valuation date from a segregation date or needs an interim true-up.

Old records are rarely gone

Almost every long-marriage case hits the same myth. The participant calls the record keeper, is told statements only go back seven to ten years, and the case proceeds as if the older records are gone.

They rarely are. The seven-year window is the customer portal, not the legal record. Under ERISA Section 209, plan sponsors must retain the records used to determine participant benefits. If the current record keeper does not have them, a prior record keeper or the employer usually does.

When records are missing, finding them is the first job. TOVA's records discovery service identifies who likely holds the older records and the basis for requesting them, so the analysis rests on real documents rather than guesswork.

What it covers, by plan type

Most common

401(k) plans

The marital share reflects contributions, employer match, rollovers, loans, withdrawals, and market changes during the marriage.

Academic / medical

403(b) plans

Common at universities and hospitals. A single TIAA account can hold several plans at once, each handled on its own.

Custodial

IRAs

Traditional, Roth, Rollover, SEP, SIMPLE. Rollovers from employer plans carry their own marital and non-marital history.

Hybrid

Cash balance plans

A statement balance that is really a defined-benefit account. Valued and divided pension-style.

Defined benefit

Pensions

Defined-benefit plans valued at the date of marriage and the cutoff date, with coverture where it applies.

Government

Federal and military

FERS, CSRS, and uniformed-service retired pay, traced through federal service and benefit records.

Have a tracing case?

Send the statements you have, or a description of what is missing, plus the date of marriage and the cutoff date. We confirm scope and a flat project fee.

Start a Case

The complications we handle

These are the situations that change the marital number, and the reason the current balance is rarely the answer:

A pre-marital balance that grew during the marriage.
Rollovers that arrived carrying their own history.
Loans taken or repaid during the marriage.

Withdrawals that reduced the account.
Pre-marital and marital funds mixed in one account.
Accounts that moved across several record keepers.

When records are missing: Records Discovery

When the current record keeper does not hold the full history, the work starts with finding the records. The deliverable is a working memo and subpoena map: who likely holds the older records, the basis for the request under ERISA Section 209, the specific records to request, and FOIA roadmaps for federal or governmental plans. The attorney issues the subpoenas. Once enough records are recovered, the case converts to a full engagement. Records Discovery is a separate engagement with its own flat project fee.

What you get

A written report in plain language, for attorneys and clients.
The marital and non-marital separation as of the cutoff date.
Source statements and key records as exhibits.
Coordination with QDRO drafting when TOVA is retained for both.

What we need to start

Settlement or stipulation language on the retirement assets, if it exists.
The date of marriage and the cutoff date.
Every available statement from the date of marriage through cutoff.
If statements are missing, the current and prior record keepers and the employer.
Any known rollover history.

What TOVA does not do

TOVA is not a law firm and does not provide legal advice. Counsel makes the legal calls.
No tax advice. The client's CPA handles tax.
No litigation strategy.
No projections of future value or income.

Related: the Forensic Tracing FAQ, the how TOVA works overview, the QDRO rejection guide, and the pricing page.

TOVA QDRO and Retirement Valuators is not a law firm and does not provide legal, tax, or investment advice. Nothing on this page is legal advice. All legal strategy and filing decisions remain with the attorney of record.

Missing statements, or not getting anywhere?

If you have a tracing case and the statements are missing, or the plan says the older records are gone, request our free Records Discovery Intake Form. It walks you through exactly what to gather to begin recovering the history, the same form TOVA uses to open a records-recovery case.

Request the Records Discovery Intake Form

Ready to start a case instead? Start a case or email sedelman@tovaretirement.com