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Qualified Domestic Relations Orders (QDROs) - Dividing Retirement Benefits

What is a QDRO?

QDRO (pronounced “KWADRO”) stands for Qualified Domestic Relations Order. QDROs are state court orders issued in divorce or dissolution cases that give retirement benefits to someone other than the plan participant, usually the ex-spouse. Under federal law, the retirement plan administrator determines whether a court order from a divorce or dissolution meets the plan’s requirements to pay the benefits.

What is an Alternate Payee?

An alternate payee is someone who receives retirement benefits, but who was not originally named in the plan as the participant. The Alternate Payee is usually the ex-spouse of the retirement plan participant.

Who can be an Alternate Payee?

An alternate payee can be a plan participant’s spouse, former spouse, child or other dependent. In general, the Alternate Payee receives all or a portion of the plan participant’s benefits under a retirement plan. If the Alternate Payee is a minor child or legally incompetent, the QDRO can require payment to someone with legal responsibility for the Alternate Payee, such as a guardian, person(s) legally acting for the parents, or a trustee.

Do I need a QDRO?

You need a QDRO when you get divorced or had a dissolution IF, the court divided the interest in a retirement plan between husband and wife. If you each keep your own retirement, you do not need a QDRO.

How do I get information about my spouse’s retirement plan?

If your spouse refuses to give you a copy of the plan, call your spouse’s employer to find out who administers the plan. Usually, the employer’s human resources department will have that information. The human resources department will not give you personal information over the phone, but it will give you the contact information for the plan administrator. You may have to make the request in writing. Ask the plan administrator for a copy of the summary plan description and a statement of the participant’s benefits and entitlements.

In divorce cases, Civil Rule 26.1 requires spouses to sign release forms for each other to find out all information about retirement plans, bank accounts, health plans, etc. This disclosure requirement does not exist in a dissolution case; each spouse must voluntarily give this release in a dissolution case.

What kinds of benefits do QDROs include?

There are usually two different benefits:

  1. the “retirement benefit” which is the benefit payable to the plan participant.
  2. the “survivor benefit” which is the benefit payable to someone other than the plan participant (like the ex-spouse) after the plan participant dies. The survivor benefit is paid to the alternate payee.

Sometimes a plan may provide for health benefits after retirement such as for state government retirees who are in PERS Tier I and Tier II. If the alternate payee gets even a nominal portion of the retirement (like $1 per month) in the divorce or dissolution, they qualify to purchase health insurance through the PERS plan. Check to see if your retirement plan includes health benefits.

What is the best way to divide retirement benefits in a QDRO?

There is no single” best” way to divide retirement benefits in a QDRO. What will be “best” in your case depends on many factors, including:

The judge considers several factors in dividing marital property and debt to make sure the division is fair and equitable. The judge will look at dividing retirement benefits as part of the whole property division to make sure it is fair and equitable.

What information does a QDRO include?

You need to talk to the plan administrator to understand what they require in a QDRO. At a minimum, QDROs contain the following information:

The specific content of the rest of the QDRO will depend on the type of retirement plan, the type of the participant's retirement benefits, the purposes behind issuing the QDRO, and the parties’ intent.

Are there provisions that cannot be included in a QDRO?

Yes. A QDRO cannot require a retirement plan:

What steps do I take to deal with a QDRO?

  1. Talk to the plan administrator for the retirement plan before you file for divorce or dissolution if possible. The plan administrator can tell you what specific information about the retirement plan needs to go in your final court order. If you can’t talk to the administrator before the case starts, talk to the administrator before your final hearing or trial so you know what is required to divide plan benefits.
  2. The plan administrator may give you a form to fill out that will need the judge’s signature. Fill this out before you come to court but leave the judge’s signature line blank. If there is no form, you will have to prepare your own QDRO based on the requirements from the plan administrator or talk to an attorney to help you.
  3. Bring the completed QDRO to your hearing or trial or file it in court if you do not have a hearing or trial set. You need the judge’s signature on the QDRO to give to the plan administrator.
  4. After the judge signs the QDRO, get a certified copy of it and give it to the plan administrator to set up payments to begin when the plan participant retires.

When should a QDRO be drafted?

Start this process early because it can take several weeks to get all of the information. The earlier you have the information from the plan administrator, the quicker you can start working on an agreement with the other party or prepare for your trial on the how to divide the retirement benefits. The ideal situation would be to have the court sign the QDRO at the same time the divorce decree is entered. If the divorce has already occurred, it is important to begin and complete this process as soon as possible. If you do not have a QDRO, you will not receive retirement benefits directly from the plan.

When will an Alternate Payee get benefits assigned by a QDRO?

In general, the alternate payee cannot receive any payment before the date when the plan participant could begin to receive benefits from the retirement plan. The plan’s terms will determine the earliest date that the plan participant can receive benefits.

If it’s part of a divorce, won’t the Judge automatically do a QDRO?

No. The judge’s duty is to divide the marital property according to the law. If you need a special order to actually make the division happen, you need to draft and submit the order for the judge’s approval and signature. Every retirement plan has different rules and requirements, so a judge cannot know what will work for your plan. You are responsible for submitting the required forms to the plan administrator. The court does not file these forms for you. If you do not have a QDRO, you will not receive retirement benefits directly from the plan.

Will the Judge grant my divorce or dissolution without a QDRO?

It depends. In most divorce cases, the issue of whether one spouse or the other is a participant in a retirement plan will be part of the divorce proceeding. Some judges don’t discuss the issue, while others will not sign your divorce or dissolution paperwork until you have submitted a QDRO. It is up to you to make sure you bring up the QDRO issue if the judge doesn’t. It is very important that you take care of the QDRO requirements before your court case ends. If you do not have a QDRO, you will not receive retirement benefits directly from the plan.

Do QDROs affect health plan benefits?

A QDRO is used to divide benefits payable under a retirement plan and does not directly cause changes in health plan benefits. Health benefits available to you and your family are determined by the terms and conditions of the medical insurance plan or group health plan. Divorce will almost certainly affect the health benefits available to the ex-spouse after the divorce is final. Health benefits for the dependents of the ex-spouse still covered by a health play may continue to be available; health benefits for the ex-spouse under the former spouse’s health plan may be available for a limited time after the divorce. Given the high cost of health care, it is very important to learn what health care benefits are available after the divorce.

Sometimes a plan may provide for health benefits after retirement such as for state government retirees who are in PERS Tier I and Tier II groups. If the alternate payee gets even a nominal portion of the retirement (like $1 per month) in the divorce or dissolution, they qualify to purchase health insurance through the PERS plan.

Be sure to learn about all of the benefits that may be available to you as early as possible in a divorce case. Civil Rule 26.1 requires spouses to sign release forms for each other to find out all information about bank accounts, retirement plans, health plans, etc. This disclosure requirement does not exist in a dissolution case. Instead, each spouse must voluntarily give this release.

Do military persons need a QDRO?

You need an order with specific language in your divorce or dissolution final papers to divide military retirement pay, but it is not called a QDRO. Federal law gives state courts the authority to treat military retired pay as marital property and divide it between the spouses in the final divorce or dissolution order. The divorce order needs to specify either a dollar amount or a percentage of disposable retired pay that is awarded to the ex-spouse. You can read more about military retirement benefits and divorce.

What should the ex-spouse of a military person do to receive the court-ordered military retirement pay?

The ex-spouse can be paid either directly by the Defense Finance and Accounting Service (DFAS) or directly by the military member depending on how many years the marriage lasted and how many years the military member served in active duty.

If you were married for at least 10 years during which the military member performed at least 10 years of active duty service, the ex-spouse can receive direct payments from the Defense Finance and Accounting Service (DFAS). Within 90 days after the court issues an order, the ex-spouse needs to submit a copy of the certified court order to DFAS, along with a completed Application for Former Spouse Payments from Retired Pay, DD Form 2293 Adobe Acrobat PDF logo. Instructions for completing and mailing are found on the back of the DD Form 2293.

If you weren’t married for at least 10 years during which the military member performed at least 10 years of active duty service, you can still get a percentage of the military retirement pay if the court orders it. The payments will have to come directly from the service member, however, and will not come directly from DFAS.

If possible, talk with your local legal assistance office BEFORE you go to your divorce or dissolution hearing about military retirement benefits. You can read more about military retirement benefits and divorce.

Do federal government employees need QDROs to divide federal retirement benefits?

You need a special order to divide federal retirement benefits, but it is not called a QDRO. To divide a federal retirement plan, the federal Office of Personnel Management recognizes a division order known as a Court Order Acceptable for Processing (COAP). A COAP can divide federal retirement benefits and award survivor benefits. You can read more about court-ordered division of federal retitrement benefits Adobe Acrobat PDF logo.

Do state government employees need QDROs to divide state PERS benefits?

Yes. QDROs are needed if the benefits are to be divided in a divorce or dissolution. One QDRO is needed for each benefit that is being split. For example, if you have a PERS account, an SBS-AP account, and a Deferred Compensation Plan, you need a QDRO for each account so you would need 3 QDROs in that case. Each QDRO would authorize the state Division of Retirement and Benefits to make payments to both the participant and to the former spouse. You can read more about division of state retirement accounts. Please read the Qualified Domestic Relations Order Divorce and Dissolution Information Packet Adobe Acrobat PDF logo for sample forms and more information about the federal and state requirements after a divorce, changes to beneficiary designations, and medical benefits for former spouses.

Do teachers need QDROS to divide TRS benefits?

Yes. You need a QDRO if your former spouse is awarded a portion of your TRS benefits or contributions. The TRS plan administrator must accept the order before it is enforceable, along with a court-certified copy of your divorce or dissolution documents. The TRS has specialized staff to help you if you have any questions about divorce or dissolution. You can read more about dividing TRS benefits after divorce. Please read the Qualified Domestic Relations Order Divorce and Dissolution Information Packet Adobe Acrobat PDF logo for sample forms and more information about the federal and state requirements after a divorce, changes to beneficiary designations, and medical benefits for former spouses.

Is there a deadline for getting a QDRO done?

Every plan has a different deadline for when the QDRO needs to be signed and sent to the plan administrator. Some plans have deadlines as short as 3 months from the date the Judge signs the divorce decree. If possible, you should find out what the QDRO deadline will be in your case BEFORE your final divorce or dissolution hearing. Have the proposed QDRO ready for the judge’s signature at your final hearing or trial or as soon as possible after the divorce. After the judge signs the QDRO, quickly give it to the retirement plan administrator.

Does my former spouse have to sign the QDRO?

Usually you and your ex-spouse write the QDRO as an agreement where you both sign and the judge signs. But if the parties don’t agree about the QDRO’s terms, the judge will make the final decision and enter the order with or without both parties’ consent. The judge can order a party to sign the QDRO so it can be given to the plan administrator with both parties’ signatures.

What do I file in court?

If you are filing the QDRO at your hearing:

  1. The original completed QDRO which includes both parties’ social security numbers. After the judge signs it, give it to the plan administrator.
  2. A copy of the original QDRO which has the social security numbers blacked out. This copy will be part of the court file.

If you are filing the QDRO at the clerk’s office either in person or by mail, include:

  1. The original completed QDRO which includes both parties’ social security numbers. After the judge signs it, give it to the plan administrator.
  2. A copy of the original QDRO which has the social security numbers blacked out. This copy will be part of the court file.
  3. Notice of Filing, SHC-1605 Word | PDF. This document is like a cover sheet that goes with documents the so the judge knows who filed the QDRO papers.

What happens if I don’t get a QDRO?

Depending on your situation, you may not get any retirement benefits from your ex-spouse’s benefit plan. It doesn’t matter that the judge ordered that you get some. No QDRO means no benefits paid direct from the plan. The only option is for your ex-spouse to send you funds directly. Not having a QDRO may also have negative tax consequences.

What if the participant dies before retirement?

A QDRO may provide that all or a portion of the participant’s benefits go to the ex-spouse as a survivor benefit in the event the participant dies before retiring. When applying for retirement benefits, the retirement plan will require the participant to pick from several different survivor benefit options to state who will get the survivor benefit and how it will be paid. The participant may choose the ex-spouse or the participant’s children to receive survivor benefits. The participant might divide the survivor benefit between an ex-spouse and the participant’s children. The participant may choose that the surviving ex-spouse will get the survivor benefit in either a lump sum payment or regular payments on a set time period like monthly payments.

What if the plan participant remarries?

If the divorced participant remarries before retiring, the survivor benefit usually goes to the new spouse unless the QDRO from the prior divorce requires that the ex-spouse be treated as the participant’s surviving spouse. If the ex-spouse must be treated as a surviving spouse, then the new spouse will not receive survivor benefits when the plan participant dies. Generally, the only way for an ex-spouse to receive survivor benefits is through a QDRO.

Can the plan participant and alternate payee choose different ways to receive payment?

Yes. If the retirement plan allows different forms of retirement benefits, like a lump sum or monthly payments, the participant can choose one method of payment and the alternate payee can choose another method.

Should I get help preparing the QDRO?

If possible, you should talk to someone with expertise in preparing QDROs. QDROs are very technical documents and can be written more favorably to one party in the case. It can make a huge difference how the QDRO is written because the specific language will determine what you will receive or give up. Some things to get help with:

Who can I talk with about a QDRO?

There are a number of people you can talk with:

Also, there are professionals that specialize in drafting QDROs who may help you prepare the QDRO.

What laws control QDROs?

A QDRO must contain certain information which is outlined in the federal Retirement Equity Act of 1984 (EREA) revisions to the Employees Retirement Income Security Act of 1974 (ERISA), and the Internal Revenue Code. EREA provides that a divorce court order can divide retirement plan benefits. The formal definition of a QDRO can be found in the Internal Revenue Code. The law controlling QDROs is a complex area of the law, and only those who specialize in it truly understand it. You can learn more from the U.S. Department of Labor’s website.


Rev. 27 December 2011
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