A Qualified Domestic Relations Order (“QDRO”) is a domestic relations order that creates or recognizes the existence of the non-employee/non-participant’s (“alternate payee”) right to receive a portion or all of the benefits payable to the employee/participant under a retirement plan.(1) Retirement plans often are one of the largest assets to divide in a divorce. Retirement plans include, but are not limited, to pension plans (both defined-benefit and defined-contribution), 401(k) plans, IRA plans, ESOPs and 457 plans. In Utah, retirement plans are subject to an equitable distribution.(2)
If you or your spouse has earned retirement at all during the marriage, a QDRO may be necessary. You will likely need a QDRO if you have a defined benefit plan subject to ERISA.(3) You likely will not need a QDRO if you only have IRA plans.(4)
Once a distribution has been determined (by the parties or the court) to the retirement plans, the alternate pay is usually tasked with the burden of obtaining a QDRO to ensure receipt to his/her said portion of the retirement plans. The QDRO must be signed by the judge, but it should also be approved by the retirement plan administrator. A QDRO must be correctly created and correctly verified to ensure its validity and to avoid any tax consequences.
Once a QDRO has been signed by the judge in your divorce case, the plan administrator will likely require a certified copy of the order to put the QDRO into motion. For 401(k) plans, the administrator will typically create a separate account in the alternate payee’s name. For a pension plan, the QDRO will remain in the records until a certain trigger begins the payout of the plan benefits.
Although the timing of the QDRO typically does not affect its validity, it is advisable to have a QDRO prepared contemporaneously with the divorce proceedings. If you have questions please give one of our experienced divorce attorneys a call to schedule a consultation.
1. ERISA § 206(d)(3)(B)(i); 29 U.S.C. § 1056(d)(3)(B)(i); IRC § § 414(p)(1)(A)
2. Johnson v. Johnson, 2014 UT 21, ¶ 31, 330 P.3d 704.
3. 29 U.S.C. § 1056(d)(3)(A).
4. 26 U.S.C. § 408(d)(6).