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Property division sometimes includes a QDRO

On Behalf of | Jul 11, 2023 | Family Law

Divorce negotiations and litigation necessarily involve discussions about a couple’s division of assets, often including retirement accounts. For many couples, retirement funds represent a significant portion of their wealth, and ensuring a fair division of these funds can be complex. This is where a qualified domestic relations order may come into play. A QDRO is a legal order that provides for the division of retirement benefits without early withdrawal fees and penalties.

A QDRO is a special court order that grants a person, known as the alternate payee, a right to a portion of the retirement benefits that their former spouse has earned through an employer-sponsored retirement plan.

The role of a QDRO in asset division

In a contested divorce proceeding, the court determines the fair division of a couple’s marital assets, including retirement benefits. A court-ordered (or court-approved) QDRO is a legal mechanism that allows the actual transfer of funds from a retirement account to the alternate payee without triggering early withdrawal penalties. For instance, if a couple decides to split the value of a 401(k) account equally, a QDRO would be drafted detailing the amount or percentage each party receives. Once the court and the plan administrator approve the QDRO, the funds can be transferred or allocated as outlined in the QDRO.

Important considerations concerning QDROs

Drafting a QDRO can be a complex process. Each retirement plan has specific rules and requirements for QDROs, which must be accurately reflected in an order. Additionally, tax implications for both parties should be considered, as the distribution of retirement funds could potentially increase an individual’s taxable income. Furthermore, a QDRO should be prepared as soon as possible. Delaying the preparation of a QDRO could lead to difficulties if the plan participant retires or dies before the order is approved.

Understanding how a QDRO impacts the property division process during divorce can help you determine how to proceed. Working closely with someone who’s familiar with the division of retirement assets so you can fully explore your options and make a decision you feel is likely in your best interests.