Georgia’s appellate courts have seen the same QDRO mistakes repeatedly: nobody drafts the order, the order says something the decree does not, the order is left out of the decree, or the decree behind it fails.
Nobody Drafts It
The decree names who prepares the QDRO, and the job gets forgotten. In Killingsworth v. Killingsworth, 286 Ga. 234 (2009), the wife’s lawyer was to prepare the QDRO for half of a 401(k) and three years later had not; the contempt court’s substitute of $1,850 in cash was reversed as a modification, and the transfer was still owed. The delay bought the husband nothing and cost the wife years.
The Order Fights the Decree
A QDRO is read like a contract. In Halbert v. Halbert, 220 Ga. App. 615 (1996), one paragraph made the ex-wife’s 35 percent payable at the husband’s unreduced retirement date and another reserved “the right to obtain any benefits that may be available to her.” She argued that the reservation let her keep alimony instead; the Court of Appeals held the QDRO “was not ambiguous,” and she lost the option.
It Is Left Out of the Decree
In Sweat v. Sweat, 281 Ga. 543 (2007), the jury gave the wife 43 percent of the husband’s retirement account, the parties argued over who would pay $1,000 to prepare a QDRO, and the decree was entered without one; “there was no agreement between the parties to utilize a QDRO,” so the share was paid out directly, taxes and all.
The Decree Itself Fails
In Howington v. Howington, 281 Ga. 242 (2006), a wife drew half of her ex-husband’s civil service pension for years under a QDRO before the decree was set aside for lack of service; the QDRO fell with it, and she had to repay the benefits received after the set-aside order.
So name the plan, name the drafter, set a deadline, and check the order against the decree before it goes to the plan administrator.
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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!