Here is a problem that shows up with frequency: Is it legal malpracitce not to "freeze" or insulate the retirement account in a matrimonial action after agreement/verdict and before actual transfer.
Often, there is a long delay between agreement and transfer of the IRA or Pension accounts between H & W. Market changes make this a nightmare. For example, if the W is given 50% of the retirement account, and in the 12 months between agreement and actual transfer it declines 15%, who takes the loss? Was she granted a sum certain as of the date of agreement, or a percentage certain as of the date of transfer. Here is an interesting case. An exerpt:
"While Lappin v. Greenberg is still in pleadings, it sets the stage for an interesting decision on this issue. So construed, the complaint sufficiently asserts that defendants’ inordinate delay in effecting the stipulated transfer of funds resulted in a loss of principal attributable to defendants’ lack of professional diligence. For purposes of this appeal, we reject the intimation that plaintiff must be treated as an investor who implicitly assumed the market risk inherent in an investment vehicle such as the Plan "
Finally, at this stage of the proceedings, we are not prepared to rule that defendants’ failure to fix the value of the Plan in the stipulated agreement or otherwise insulate plaintiff from the market risk attendant upon a delay in transfer and distribution of the proceeds cannot be deemed a lapse in the exercise of professional diligence."