QDRO Requirements 16

A retirement account is often the largest marital asset (other than a home) in a divorce proceeding. 401(k) accounts and pension funds require the entry of  a “qualified domestic relation order”, or QDRO, to divide the asset between spouses or to award the retirement savings to the non-account-holding spouse. The QDRO must contain very specific information and must meet certain other legal requirements in order for it to be valid and actionable.

The legal ins-and-outs of drafting a valid QDRO can be tedious and complicated, which is why some divorce attorneys outsource the handling of QDROs to QDRO specialists. Other attorneys prefer to draft and submit QDROs on their own. Either option, of course, is fine, assuming that all the legal QDRO requirements are met. Retirement plan administrators are not allowed or required to follow the terms of any court order purporting to assign retirement benefits unless it meets the requirements of a QDRO.

What are the requirements for an actionable and enforceable QDRO?

First, there must be an actual court order. In fact, it must be a domestic relations order – a judgment, decree, or order (including the approval of a property settlement) that is made pursuant to state domestic relations law. A signed property settlement agreement without court approval is not enough.

There is requirement that a QDRO be issued as a separate judgment, decree, or order. A QDRO may be included as part of a divorce decree or court-approved property settlement, or issued as a separate order, without affecting its qualified status.

The domestic relations order can be a QDRO only if it creates or recognizes the existence of an alternate payee’s right to receive, or assigns to an alternate payee the right to receive, all or a part of a participant’s retirement benefits. For purposes of the QDRO provisions, an alternate payee cannot be anyone other than a spouse, former spouse, child, or other dependent of a participant. (Participant is the employee-spouse who saved the retirement funds; alternate payee is generally the spouse of the participant.)

A QDRO can assign rights to retirement benefits under more than one retirement plan of the same or different employers as long as each plan and the assignment of benefit rights under each plan are clearly specified.

QDROs must contain the following information:

  • The name and last known mailing address of the participant and each alternate payee
  • The name of each plan to which the order applies
  • The dollar amount or percentage (or the method of determining the amount or percentage) of the benefit to be paid to the alternate payee (This calculation can be difficult, especially in the case of a traditional pension fund in which the current value of future payments will have to calculated by an actuary or accountant.)
  • The number of payments or time period to which the order applies

There are certain provisions that a QDRO must not contain:

  • The order must not require a plan to provide an alternate payee or participant with any type or form of benefit, or any option, not otherwise provided under the plan
  • The order must not require a plan to provide for increased benefits (determined on the basis of actuarial value)
  • The order must not require a plan to pay benefits to an alternate payee that are required to be paid to another alternate payee under another order previously determined to be a QDRO
  • The order must not require a plan to pay benefits to an alternate payee in the form of a qualified joint and survivor annuity for the lives of the alternate payee and his or her subsequent spouse

Before the judge signs the QDRO, the plan administrator will need to approve the language of the Order to ensure that it meets all of the plan’s requirements (in addition to the federal legal requirements).

If there are no problems with the QDRO and all of the legal and plan requirements are met, the receiving spouse (alternate payee) will actually end up with his or her own separate account. If the participant spouse has a traditional pension, the plan administrator will establish a separate pension benefit for the receiving spouse. If the participant spouse has his or her retirement savings in a 401(k) plan, a portion of the plan funds will be rolled over into the receiving spouse’s IRA, with no tax and no penalty.

Looking for legal answers?



Discussion

  • Peggy

    I have a pension coming to me from a previous employer at age 65. My husband and I divorced in 2003. In the final divorce decree we left the qdro section blank. I remarried in 2005 and would like my current husband listed as a suvivor on my pension in case of my death. I have been told that my ex husband can establish a QDRO in which he will collect 1/2 of my pension and my current husband is not entitled to anything. Is this true? I need to let me union know this information and I do not know how to respond.

  • Gina

    I live in CA. My husband and I divorced after 23 years and I purchased his half of my retirement pension at that time. About 8 years later we re-married solely for economic benefits but never lived together. We were told we did not need a legal separation. Now he wants a divorce to marry another woman. If we fill out our date of the second marriage and date of separation as the same day I can’t see there would be any community property and I should not need to do a QDRO. Is this correct?

  • Susan Paschall

    I was awarded half of my ex’s 403b. Can these funds be paid in cash with penalties paid by me? I am in dire need of funds. Thx

  • sv1261

    Can I file a QRDO 10 years after my divorce, if I didn’t do it then and I have remarried?

    • Francisca Ruddock

      can I file a QRDO 10 years after my divorce, if I didn’t do it then I still divorce?

  • Trever Rittenhouse

    I was officially divorced in January of 2011. I am to receive half of my ex-wife 401k. The quadro states I am to be paid in cash. At the time of the divorce we lived in California. I now live in Michigan. I believe I will have to pay taxes on my half of the 401k. Do I pay taxes for the state of Michigan or the state of California? How much with the taxes I have to pay be?

    Thanks for you time

    Trever

  • Mary

    I was divorced in 2008 after 31 ys of marriage. No provivisons were made for pensions in the decree. My ex has since passed away he had retired am I entitled to the remainder of his pension. He only received benefits for two years.

  • Kay

    I was divorced in the 1981 and decree stated 10% of his pension. He is the owner of company and decree states at 55 or 65 of age he can collect. He sends me money monthly, but attorney never mentioned QDRO and has retired. What kind of problems do I have as my ex-spouse has health issues.

  • Jane

    In the state of WV is there a statues of limitations on filing a QDRO?

  • Jim

    Google Kennedy vs Dupont, Supreme Court ruling. A lot of your questions will be answered. A must read for ERISA pension plans.

  • Jeff

    My wife and I want a divorce, we BOTH have 401k’s, will we both be required to split each plan between each other (essentially she gets half of mine, I get half of hers) or can we just sign something saying we wave our right to each others 401k and go our separate ways?

  • Mabel64

    My husband rec’d notice that he can get his small pension money in a lump sum. He was previously married and in the marital settlement agreement his ex is to get 1/2 of this pension “to be divided by the means of a QDRO. This was never filed by either party. The amount isn’t much especially with the taxes to be paid on it. Since we are now married and there isn’t any QDRO do we have to give her 1/2? This is in WI.

  • Laura Tower-Hunt

    I was divorced from a military spouse in 1995 in Washington state. We went through a regular divorce however the amount of my pension was available and stated however his was not. No where was the value of his pension provided on any of the divorce paperwork shown so I just agreed to keep mine and he kept his. I have found out recently that the portion of his pension I would have been entitled to was far in excess of what my TSP pension was valued at. He retired as an E-6 over 20 years and we were married 13+ years. I do not remember anything called a QDRO and I am now wondering if I may still be entitled to a portion of his pension since apparently the divorce paperwork was incomplete. Thanks.

  • Barbara

    A MSA was signed by the judge two years ago for a set amount of my exspouses pension for 4 years. We agreed he would pay me directly because he was worried about his payments being messed up… I sent in the sample QDRO to have the pension plan to review it because my ex has stopped paying me monthly.. I received it back and the Pension states they will not acknowledge the time limit, that he signed the 50% husband and wife distribution. This means that I get the monthly amount for the rest of my life not what we agreed on in the MSA. The pension states they can over rule the statae court.. The QDRO has to go to the judge to sign, will I have problems with it getting signed because it is not what is in the MSA?? Also should I attach the pension letter with the QDRO for the judge?? Help needed, my ex will be on the war path when he finds out, though I think he may have knew this.

  • Mary

    Can a retiree get the pension funds returned to them at the death of the ex-spouse if a QDRO was done?

  • db8407

    Can anyone tell me if this is against Mich or Fed. law – I found paperwork showing my spouse changed the beneficiaries on his pension & most likely his insurance removing me without my knowledge. He hadn’t even filed for divorce yet but did so 2 wks later. We’ve been married/together for 18 yrs and his pension thru his employer has been funded with marital assets since 2007. I thought I read somewhere that this is illegal unless he gets me to sign something, can anyone give me any kind of answer. He Makes close to $1200 + wk and I’m on disability (SSD). Please help and advise what recourse I have.