A Georgia court cannot order child support arrears paid out of a retirement account the divorce decree already awarded to the paying parent, so a QDRO is rarely the tool for collecting them, even though other remedies reach retirement money.
What the Supreme Court Held
In Friday v. Friday, 294 Ga. 687 (2014), a father who lost his $180,000 job paid $179 a month instead of $2,000 and was held in contempt, and the trial court ordered him to submit “a Qualified Domestic Relations Order regarding Husband’s retirement plan assets” toward the arrearage. The Georgia Supreme Court reversed that part. Because the decree had awarded those accounts to the husband, “ordering that Husband pay child support arrearages from his retirement accounts via a QDRO is a reapportionment of the retirement accounts, constituting a modification of the final decree, and is error.” A contempt court may enforce a decree; it may not rewrite its property division.
What a QDRO Is For
Under the federal definition Friday quotes, a QDRO assigns to an “alternate payee” a share of “the benefits payable with respect to a participant under a plan.” It carries out an award already in the decree; it does not create a new one. Our QDRO posts explain the order itself.
What Reaches Retirement Money
Under OCGA 18-4-53(c), retirement and pension funds “shall not be exempt from the process of continuing garnishment for support,” and under OCGA 18-4-6(a)(2) such funds are exempt from ordinary garnishment only “until paid or otherwise distributed.” A retirement balance also counts against the inability-to-pay defense: in Claybrooks v. Claybrooks, 364 Ga. App. 157 (2022), a mother who had lost her job was in willful contempt because her 401(k) could have paid the arrearage. Contempt, garnishment, income withholding, interest, and license suspension for unpaid child support each have their own post.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!