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What Is a QDRO?

patrickcrawford | September 29, 2023

If you’ve heard the term “quadro” surrounding your divorce, you’re probably wondering what that strange-sounding word is. Well, “quadro” refers to the initials Q.D.R.O. which stands for Qualified Domestic Relations Order. In short, a QDRO is an order issued by a judge authorizing retirement benefits to be split between a divorcing couple without tax penalties. Depending on the retirement plan in question, the actual order itself may have any number of different names, but they are all considered to be QDROs. QDRO is a general term that applies to all such orders. 

 

As if the name itself isn’t complicated enough, QDROs can be quite complex—they must meet both state and federal regulations and be approved by the lawyers that represent the retirement plan in question. Therefore, it is highly recommended that you consult with an experienced Annapolis QDRO attorney if your divorce should call for dividing up a pension or 401K. It’s important to note that not all divorce lawyers handle QDROs because of their complexity.

Starting the QDRO

The QDRO process begins with collecting all the relevant background data from both parties. This includes analyzing any written agreements that would impact the QDRO, such as a prenuptial agreement, separation agreement, or divorce decree. Generally, the spouse who is claiming part of the other spouse’s retirement plan initiates the QDRO process. This helps to ensure that the spouse in control of the retirement plan doesn’t redirect the funds anywhere. 

 

The sooner the QDRO process begins, the better, because state law does not require that the QDRO be in place in order to deliver the divorce decree. Because many couples divorce before they reach retirement age, QDROs often get put off until that time arrives. Avoid this at all costs and get it done during the divorce negotiations. The longer you wait, the more pitfalls you will face. If your ex-spouse dies before a QDRO is issued, this can be a serious problem because now you have to involve the probate system. Additionally, most retirement plans have very restricted benefits for survivors, unfortunately.

 

The QDRO Process 

Let’s simplify the QDRO process. Here is a brief overview of what to expect:

 

  • Your attorney drafts the necessary QDRO documents after carefully reviewing the retirement plan and the divorce terms. 
  • This first draft is then sent to your spouse’s lawyer for review.
  • Once both sides agree that the QDRO accurately reflects the terms set out in the divorce settlement, it is sent to the administrator of your spouse’s 401K or pension.
  • The retirement plan administrator will review the QDRO and ensure it satisfies all “the fine print” terms and conditions of the retirement plan. One of the main rules of QDRO administration is that the benefits post-divorce can not be significantly different from pre-divorce. For example, if the pension rules require you to be 55 years old before receiving benefits, then you can’t ask them to give your ex benefits at the age of 47 because you agreed to it in divorce mediation. 
  • About half of QDROs are not approved by the plan administrators upon their first submission, so don’t be surprised if your agreed-upon QDRO gets rejected. The good news is that the retirement plan administrator will ask for specific changes to be made to the QDRO so that it meets their criteria.
  • Once the QDRO is finally approved by your spouse’s lawyer and the retirement plan administrator, it then gets submitted to the court for approval.
  • Upon the judge’s approval, the new retirement plan recipient will receive all the necessary documentation to send back to the plan administrator (certified copies).
  • At this point, the retirement plan administrator accepts the finalized QDRO and implements it. Now, all the heavy lifting is done, and there should not be any delays in getting the QDRO installed. If the new beneficiary is of retirement age, that means a disbursement (or disbursements) will begin promptly.

 

QDRO Negotiation Points to Consider

The Q in QDRO (“qualified”) means that applicable retirement plans have a 10% tax penalty if funds are withdrawn before retirement age. Having a QDRO in place, however, shields the withdrawing spouse from paying that penalty. In other words, the withdrawing spouse may be able to withdraw all of their portion at once after the QDRO’s acceptance. There are no early withdrawal penalties. Considering the receiving spouse may have to pay income tax on the benefits, this is crucial. 

 

To clarify, a QDRO is the only way to transfer your retirement benefits to another person while you are alive without penalty. Smart divorce lawyers and mediators can use this as leverage or part of a strategy toward a number of ends. You might, for example, offer to “overpay” your ex via the QDRO, which doesn’t eat into your monthly income or day-to-day money, in place of making alimony payments.

 

Survivorship Benefits

It can’t be stated enough – it is extremely crucial that you do not delay in getting your QDRO filed—the sooner, the better. If the pension holder dies before the QDRO is filed, the retirement plan administrator can deny a claim to the pension. Sounds cruel? It happens all the time. Pension rules often state that benefits can only be passed on to a current spouse or minor child. This means former spouses can easily get cut out. The retirement account administrator will also look to see who is listed as the account beneficiary. It’s unlikely the ex-spouse is still going to be listed as the beneficiary—this in and of itself can require a trip to court, even if you have all the necessary divorce decree documentation. 

 

If you really need to motivate yourself to deal with the QDRO while you’re simultaneously juggling the divorce settlement, read up on the ex-wife of the former New England Patriot Mosiula Tatupu. The NFL denied her claim after Tatupu’s untimely death. His ex wasted a lot of time and resources having to duke it out with the NFL in federal court…all because she didn’t take care of the QDRO at the time of the divorce.

 

QDRO FAQs

 

Is it common for divorce lawyers to outsource drafting QDROs?

Yes! QDROs are practically a specialty of their own. Outsourcing them is not unheard of. Here at the Law Offices of Patrick Crawford, we do handle our QDROs in-house.

Can I get more money from the pension than my spouse? Does it have to be 50/50?

It is possible for the spouse who worked directly for the pension (the employee of the sponsoring company) to take more out of the pension than the other spouse. However, it is a very steep uphill climb to flip that so the petitioning spouse (the one who didn’t work for the sponsoring company) gets more. In other words, if the retirement plan is not in your name, you can not receive more benefits than the person whose name it is in. There are, of course, loopholes, but you’ll need to consult your QDRO lawyer.

My company won’t allow withdrawals from pensions from current employees. What should I do?

If you have a union job, this no doubt sounds familiar. Sometimes, you may only have the option of taking out a loan against your 401K. In some cases, if you can show the retirement plan administrator that you are facing financial hardship, they may allow a withdrawal. 

Sadly, sometimes, people have to leave their jobs in order to withdraw from their employer retirement plans. The good news is that a QDRO can bypass all of these “no withdrawal” restrictions. A QDRO could, for example, require the fund administrator to create a separate account in your spouse’s name and transfer his or her share into that new account. Since your spouse doesn’t work for your company, they are not subject to the “no withdrawal” rule. It’s a good general rule when it comes to QDROs and retirement plans to never assume and always get legal advice.

What if I need to split my pension with more than one former spouse?

If the terms of a divorce settlement have put you in a position where you need to split your pension with more than one former spouse, it is possible to have two sets of survivorship benefits and contingent survivorship benefits with certain retirement plans. Aside from survivorship benefits (meaning in the event of your death), it can be tricky to navigate multiple QDROs. Again, it’s worth your time and energy to lawyer up.

What if there is more than one retirement plan requiring division?

No need to panic. You can have a QDRO created for the nuances of each particular pension plan. Your attorney will ensure you address all applicable plans during the divorce process. 

Contact an Annapolis QDRO Lawyer Now

The Law Offices of Patrick Crawford can handle all of your QDRO needs in-house through your divorce proceedings. Schedule a free consultation to inquire about our Annapolis QDRO attorney services today. Please feel free to use our online contact form to set up your consultation. 

 

Patrick Crawford

Patrick is an Annapolis Family Lawyer dedicated to helping you through the most complex and emotional family law matters. During his career, Patrick has successfully represented countless people in divorce, child custody, child support, domestic violence and other family law cases of diverse complexity.

Years of experience: 20+ years.
Maryland Registration Status: Active and authorized to practice law.

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This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by attorney Patrick Crawford, who has more than 16 years of legal experience practicing family law.