A qualified domestic relations order, or QDRO, is the court order that lets a retirement plan pay part of one spouse’s benefits to the other; without it, a Georgia decree dividing a pension or 401(k) does not bind the plan.
Why the Plan Needs One
Federal law shields retirement benefits from creditors. As the Georgia Supreme Court read ERISA in Eickhoff v. Eickhoff, 263 Ga. 498 (1993), pension benefits “may not be assigned or alienated,” so an unincorporated agreement for half a pension could not be enforced against the plan, though it gave the ex-husband no defense once the checks reached him. The exception is the QDRO: as Killingsworth v. Killingsworth, 286 Ga. 234 (2009), describes the federal Retirement Equity Act of 1984, it “permits the assignment of pension plan benefits to non-plan participants if done pursuant to a QDRO.”
What the Order Is
Friday v. Friday, 294 Ga. 687 (2014), quotes the federal definition: an order that “assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan” and “must meet specific statutory requirements.” Those requirements, in 29 U.S.C. 1056(d)(3), include naming the plan, both parties, and the amount or percentage and period of payments. The order can carry alimony as well as property; in Halbert v. Halbert, 220 Ga. App. 615 (1996), a QDRO paid the ex-wife 35 percent of her ex-husband’s pension in place of alimony once he reached his unreduced retirement date.
Who Prepares It
The decree usually assigns the drafting to one side’s lawyer, and the order goes to the plan administrator for approval. The decree is final without it: in Mermann v. Tillitski, 297 Ga. 881 (2015), “the finality of a divorce decree is not affected by the presence or absence of a QDRO.” The other posts in this section cover the two kinds of plan, common mistakes, and child support arrears.
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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!