There are golden nuggets every attorney must know when dividing retirement plans in divorce. Whether the retirement order is outsourced, or provided by the divorce attorney, the divorce attorney is responsible that the order not only gets done, but that it qualifies with the retirement plan.
First, determine what rules govern the particular plan. Defined benefit plans (pensions) and defined contribution plans (e.g. 401k) are governed by ERISA, and the particular plan’s rules. State plans are governed by the particular state law. And civil and military federal plans are governed by the particular federal law.
Second, understand how the plan can be divided. The most common mistake is when a plan is divided in a manner that cannot be effectuated. Obtain documents and information directly from the plan, or if a governmental plan, directly from the applicable statute.
Third, a “qualified domestic relation order” is an order used to divide nongovernmental plans. It qualifies with the plan that assigns to a non-employee spouse the right to receive all or a portion of the employee spouse’s benefits under a retirement plan, and that includes certain information and meets certain other requirements. QDROs are made pursuant to state domestic relations law, that relates to the provision of child support, alimony payments, or marital property rights for the benefit of a spouse, former spouse, child, or other dependent of an employee. Interestingly, QDROs can be used for child support or alimony payments.
Fourth, be wary of model orders. Model orders can provide guidance and insight into the plan, for example how the plan can be divided, but model orders are not written to protect the interests of the non-employee spouse. Model orders and QDRO procedures should be obtained from the plan at the beginning of the case.
Fifth, a specific order must be done to effectuate the division, however the order must match the actual division. It is limited to an order to assist in the implementation of the division and may not alter or change the substantive division. An order that amends, modifies, alters, or changes the actual, substantive division of property is beyond the power of the divorce court. In Beshears v. Beshears, the Dallas court of appeals held that the trial court did not abuse its discretion in finding that the wife was only entitled to 57.5 percent of husband’s retirement benefits as of the date of divorce, and that the court had the power to delete a surviving spouse provision in the QDRO to make the QDRO comport with the divorce decree which did not contain a provision for survivor benefits.
Sixth, there is no statute of limitations for correcting a defective QDRO, or any other retirement order, or amending a QDRO, or any other retirement order, to comport with the decree of divorce.
Seventh, it is vital to obtain the retirement order at the same time as the decree of divorce. Once 30 days passes from the decree, the court has lost plenary power, and an original lawsuit must be filed to obtain the retirement order. If the employee spouse dies before the order qualifies with the plan, the non-employee spouse could lose all of their benefits. Attorney fees can be awarded in obtaining a retirement order and are most often awarded when the employee spouse is being difficult.
Eighth, when dividing defined contribution plans (e.g. 401k), the date of division must be specific, as well as whether gains and losses from that date will be awarded. Loans against these plans can be problematic. Separate property can be determined by mere subtraction or by tracing the account from the date of marriage.
Ninth, when dividing defined benefit plans (e.g. pension plans), whether or not the employee spouse is in pay status can affect how the other spouse can receive their funds. Separate property is determined by a coverture fraction, applied at the time of divorce, with the numerator being the number of months married while in the plan, and the denominator being the total number of months in the plan as of the date of divorce. Cost of living adjustments and early retirement subsidies must be addressed for the non-employee spouse. And, survivor annuities can be complex but must be addressed for the non-employee spouse to obtain their funds should the employee spouse die.
Tenth, state and federal plans have their own rules and some of these plans will not allow deviation. Some plans have forms wherein there are literally boxes to check and any unchecked boxes cannot be deleted. The statutes governing the plan should be studied carefully before every attempting to divide.
Charla H. Bradshaw is a managing shareholder at KoonsFuller P.C. Family Law. She has considerable expertise in providing family law services to a broad range of clients with concentration in the area of family law, and particularly employee benefits, executive compensation and retirement.