A California divorce can be difficult. The act of dividing property that has accumulated throughout the course of the marriage is tedious and stressful. While it is possible to maintain an amicable relationship throughout the process, in a good number of cases, animosity, hurt, and disappointment can muddy the waters. Despite these emotions, it is important that you go into the process aware of the different issues and property classifications that exist. One type of property that is sometimes overlooked in the beginning stages of divorce is the proceeds of a retirement plan. Is either spouse entitled to a portion of their spouse’s retirement plan? Are retirement benefits treated the same as other property, like bank accounts and stocks?

What is a Qualified Domestic Relations Order?

Retirement benefits are a property interest that can hold a significant amount of value. The filing of a Qualified Domestic Relations Order (QDRO) is the means by which a spouse seeks to secure a portion of the proceeds of a non-government based retirement benefit plan held by the other spouse. A QDRO allows a spouse to receive income from any retirement benefits accrued by their spouse during the course of their marriage. The spouse that holds the benefit (the plan) is referred to as the participant, while the spouse seeking to secure the right to payment from the benefit is the alternate payee. Filing a QDRO orders the party that administers the payments from the plan (typically the employer) to allocate a portion for the alternate payee spouse.

The Employee Retirement Income Security Act (ERISA) governs QDROs. ERISA, in part, protects employee retirement benefits. Under ERISA, barring certain exceptions, retirement benefits are inalienable. This means that retirement benefits cannot be forcibly transferred away from the participant. However, ERISA makes an exception for QDROs. When a QDRO is filed and approved, the usual shield provided by ERISA lowers, and the alternate payee spouse can seek payments from the retirement benefit.

For an agreement to be enforceable under the provisions of ERISA, it must be filed and approved by a qualifying government agency (typically your state court). It is important to remember that an agreement by the divorcing parties to split or divide retirement plans without receiving approval from the appropriate government agency will not be enough to force the participant spouse’s employer to make payments to the alternate payee spouse; the court must approve the order.

Another fact worth considering is that QDROs only apply to benefits offered by private companies, not government agencies. Government-based retirement benefits are governed by similar but separate orders simply called Domestic Relations Orders. If the government employed the participant spouse, the alternate payee spouse will need to file a Domestic Relations Order in place of QDRO.

How Do I File a QDRO?

The process of filing a QDRO is complex. While the paperwork seems straightforward at first glance, the laws concerning QDROs are intricate, and shift depending on the type of retirement benefit you are dealing with. Failure to enter information correctly may result in you being unable to secure the benefit later. It is important to know what type of plan the spouses are enrolled in, and what paperwork is needed to have a QDRO issued.

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If you need help preparing the necessary forms for a Qualified Domestic Relations Order or any other legal action, consider allowing A People’s Choice to help guide you through the process. We have decades of experience in helping our clients prepare the forms needed to get their legal action off of the ground, and allow them to do so without the extra stress or expense of an attorney. Reach out to our offices today and let the team at A People’s Choice do the heavy lifting for you.