Do You Really Need a QDRO?
You’re in the last steps of your divorce, you can see the light at the end of the tunnel and you’ve reached a settlement agreement with your spouse. Then your mediator or attorney turns to you and says, “Now we just need your QDRO, and that’s going to be an additional fee.” “Wait, why? What is a QDRO, and do I absolutely need it?”
The QDRO is the final step in your divorce, one you can’t skip because most divorces will ultimately involve a QDRO. QDRO is an acronym for a legal document called a Qualified Domestic Relations Order and is required whenever a divorcing couple needs to divide a Qualified Retirement Account.
A Qualified Plan is usually one being held by an employer and includes 401(k) plans, 403(b) plans, pensions, 457 plans, deferred compensation plans, and some RSU, restricted stock unit accounts.
IRAs or, Individual Retirement Accounts do not require a QDRO. However you can use a QDRO to avoid withdrawal penalties, even with an IRA, during a divorce. Legally, the divorce decree is all you need for an IRA division. For a Qualified Retirement Account however, to assign all or a portion of the accounts to a non-employee spouse, it has to be stated in the divorce decree and the QDRO, must be completed and submitted to the plan for the division to take place.
If you are granted retirement assets from a former spouse via QDRO, this is the only opportunity to take money out of that plan with zero penalties. It will be taxable income and there will be no 10% penalty for the withdrawal before age 59 ½. If you want to be able to do this from an IRA, then you must use a QDRO.
In my practice, I facilitate the preparation of QDROs for my clients by acting as their representative to a QDRO attorney that I have vetted and found to be the most affordable and ethical. Through this practice I have become aware of the multitudes of pitfalls that QDROs present and often, the failure of attorneys and mediators to address the issues in the settlement negotiations. Here is just a short list of some of the subtleties often overlooked.
- Is the non-employee spouse eligible to receive a lump sum settlement upon retirement?
- If the employee spouse dies, will the non-employee spouse still receive benefits?
- Were any outstanding loan balances taken into consideration?
- If splitting a 401(k), what is the actual date of division? Will the earnings after that date be included?
- For Pensions, does the plan set up a separate account for the non-employee spouse so they can choose their own payout options and beneficiaries? If not, have you protected the non-employee spouse from early-retirement penalties?
As you can see, the waters of a QDRO are fraught with peril and not for the inexperienced! If that wasn’t bad enough, prices for QDROs can range from $500 to $3,000, all for the exact same document. Each plan is unique and has very specific requirements for the language of their QDROs and it is essential that the preparer have the plan documents in advance to ensure it will meet the requirements. You want to ensure that the QDRO will be PRE-APPROVED by the plan if allowed to prevent rejection and more cost to re-do it correctly.
Once your decree is final, signed by the Judge, then you submit the finished QDRO to the Judge as well. Once it is signed, then and only then is it ready to submit to the plan. At that point, they will contact the non-employee spouse to get instructions for the disbursement or to identify the new account set up on their behalf.
QDROs are complicated. Be sure you have an expert that can guide you through it and make sure you don’t get taken advantage of. It just isn’t necessary to go through more pain and frustration.
If you need an affordable, accurate QDRO, contact us today. We’re here to help.
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