A qualified domestic relations order, often called a QDRO, is a special document that divides up retirement accounts as part of a divorce. A QDRO allows one spouse to receive a portion of the other's retirement account without taxes or penalties. QDROs are drafted after a divorce instead of during a divorce. Therefore, it is not possible to postpone a divorce until the QDRO has been signed by the judge. In fact, postponing a divorce would have the opposite effect and would instead postpone the drafting and implementation of the QDRO.
Types of QDROs
A QDRO can be drafted to divide many types of retirement accounts. This includes 401(k) accounts, 403(b) accounts, annuities, and private, state and federal pension plans. Because of this, there is no "one size fits all" for QDROs. Each QDRO will be different depending on the type of plan it is dividing.
Once a divorce decree orders that a certain retirement plan is to be divided, the QDRO is then drafted. Each type of retirement plan has specific language that must be included in a QDRO. Some parties utilize an accountant or benefit specialist to draft the QDRO. Some employers have in-house representatives that can draft the QDRO. Because every QDRO is unique, the language that is included will need to be approved by the retirement plan administrator. Once the QDRO is drafted, it is sent to the plan administrator for review.
Once a QDRO has been drafted and approved by a plan administrator, it is sent back to the parties. Some but not all plans require the parties or their attorneys to sign the QDRO. Once this occurs, the QDRO is then sent to the judge for his signature. All QDROs require the signature of a judge. Once a judge signs the QDRO, it is binding and cannot be changed.
Implementing the QDRO
Once a judge has signed a QDRO, it gets sent back to the plan administrator again. The plan administrator then implements the QDRO and divides the retirement account according to the terms set forth in it. A common way to divide an account is for each spouse to receive 50 percent of whatever benefit accrued during the marriage. It is also possible for parties to agree to a different division. Once the QDRO is implemented, each spouse receives his and her share of the account.
The terms of a QDRO will be set forth in your divorce decree or divorce agreement. These decrees and agreements are binding. Therefore, if your spouse refuses to cooperate with the QDRO process, you can file a motion to enforce the terms of your divorce decree. A judge would then require your spouse to cooperate. Because there is no way to avoid QDROs once they are ordered by a judge, there is no reason to try to postpone a divorce in an attempt to avoid having an account divided. If you do this, you may also be required to pay your spouse's legal fees if a judge believes you acted in bad faith.