A QDRO is a court order to divide ERISA-qualified defined contribution and defined benefits plans (e.g. 401(k), 403(b), profit sharing, ESOP, pensions, cash balance).
When the account existed prior to the marriage, the determination of the marital portion becomes more complex. Most plan administrators (or more accurately their record keepers) will not perform calculations to determine the marital versus non-marital portions of the account. Instead they require you to specify a dollar amount or percentage of the account to be assigned to the former spouse.
If the judgment entry is vague about how to determine the marital portion, and if it becomes a post-decree matter, the QDRO process can become significantly longer. It is difficult to obtain account statements and additional fees for calculations.
This is why we recommend that before you finalize the divorce, you do full discovery on every account to know not only what is an acceptable assignment, but to also know how much account information is actually available – you might be surprised how little there is. Contact us today to discuss your case and to receive a free copy of our Discovery Toolkit, which gives you sample letters and guidance for sending discovery.
Pension and 401(k) plans have very different characteristics, including valuation methods, funding and investment risks, and distribution options. Even retirement plans of the same type very rarely have the exact same features and risks. There may be legitimate reasons to offset retirement assets. However, the only way to accurately equalize the parties’ retirement assets, including sharing risks and other plan features, is to divide each plan with a QDRO. To read more on this topic, download this article.