Completing The QDRO Information Sheet
How to Complete the QDRO Data Sheet
In order to retain our office to prepare your QDRO, we must receive detailed, accurate information. Here is a summary of information you will need to complete the data sheet to be submitted to our office as part of your QDRO completion process.
If the domestic relations order is for child support or spousal support, please provide the full legal name(s) of the children involved.
Please provide us a copy of the separation agreement, the divorce judgment or court order and all paperwork that you obtained during the divorce case discovery process, typically things like plan information, policies and procedures, recent statements, contact information for the Plan Administrator and sometimes, a sample/format court order. You may fax or email the information, but an email to our office is preferrable at email@example.com. After the information is received, we will be able to run a conflict check, review the QDRO(s) that need to be prepared and provide a cost estimate.
If you have not yet finalized your settlement or divorce and you would like our office to consult or assist you with preparation of the wording of the division of retirement accounts please provide us with a detailed email explaining the assistance you are seeking and we will be able to schedule a consultation to discuss your needs (and hopefully, provide the needed information during our consultation time). In ideal situations, we can engage in the consultation with you and your family law attorney/legal counsel so that the information about the best/most legally beneficial language can be expressed to both, you and your attorney.
Type of Employer
- Private Employer: this means the employer of the spouse possessing the relevant plan. This can include self-employment.
- Federal Government Employer: This means any type of Federal Government Employer or entity (with the exception of the military which is a separate category);
- Military Employment: This is for non-civilian military personnel. Civilian personnel who work with the military are still considered non-military federal government employees.
- Government Employees: this means a governmental employee for entities other than the federal government. This can include state, county, city, municipal and other similar types of public entity employees.
A Defined Benefit Plan
Typically this is a plan that provides a specific, pre-determined amount of benefit to the participant at the time of retirement. This is usually calculated based upon a formula that considers the employee’s years of service (also known as creditable service) and their salary (for many employers the average of their three highest years of salary earnings).
It is important that we know whether the plan participant had a prior marriage, with a previous/pre-existing QDRO in place for the benefit of their prior spouse. It is important, if this has occurred, that we receive a copy of the prior entered QDRO, and if it is not available, it is likely that we will need to correspond with the plan to obtain this information (this includes amended QDROs and supplemental QDROs).
Petitioner: the Petitioner is the spouse that filed or initiated the divorce proceeding by filing the action. This should be on the front page of your court papers that were filed on your behalf to dissolve the marriage.
It is important you provide us with the complete legal name of both spouses (often husband and wife but can be husband and husband or wife and wife). Please provide us with both, the name of each party as it appears in the filed documents and settlement agreement/final order, as well as the new name if one or both of the parties received a name change through the divorce proceeding.
Please provide us with the complete, current legal address for each party.
Husband’s & Wife’s Attorney:
This information needs to be completed/listed if you are asking that we communicate with and provide updates to your legal counsel.
Date of Separation:
This needs to be the date listed in the filings and/or determined by the Court in the final judgment.
Date of Dissolution or Divorce:
Again, this needs to be the date that the dissolution is final, typically, the date the final divorce decree or judgment was entered.
The State Where the Dissolution was Filed:
This is the state where the divorce or other family court proceedings were filed. Our office is licensed in Kansas and Missouri. Typically, we prepare retirement orders for parties divorcing or dissolving their marriages in Kansas and Missouri. If you need legal counsel for the preparation of an order due to a specialized or unique Kansas or Missouri state retirement plan or municipal plan (with your divorce pending in another state), please reach out to our office to confirm that we can assist you before proceeding.
County where the Dissolution or Divorce was Filed:
This is the county where your case was filed with the court. This may or may not be the county where you are currently living.
Name of Court where Dissolution was Filed:
This information should be on the front page of your divorce paperwork.
This information, again, will be on the front page of the papers that were filed with the court to dissolve your marriage.
Name of the Judge:
This information will typically be placed on either the front page of the divorce decree or judgment or on the last/final page where the judge signed the order.
Participant’s Retirement Status:
It is important that we understand, in preparing the QDRO, whether the participant is currently working for the company, i.e. continuing to accrue benefits, making active contributions and/or service credits or if the participant has retired and is currently receiving benefits. If this is occurring, the Plan is considered in pay status.
What Lifetime Benefit is Alternate Payee Entitled To?
This is where the time rule is typically used to calculate the alternate payee’s entitlement to a defined benefit plan. The numerator is the creditable service or number of months the participant is entitled to during the marriage and the denominator is the participant’s total creditable service upon retirement date times the actual benefit amount. The alternate payee’s share is typically 50% of this fraction (i.e. the one-half marital share).
What Form of Benefit did Participant Elect Upon Retirement?
It is important, if the plan is in pay status, that we know whether it was elected as a life only annuity or joint and survivor annuity. A life only annuity means that the participant elected a form of benefit that is paid over the participant’s lifetime with no survivor benefit payable to anyone. If a life only annuity was elected by the participant during the marriage, the alternate payee would have had to sign a form or document waiving his or her right to a joint and survivor annuity.
A Joint and Survivor Annuity is a type of benefit that pays a lifetime benefit to the Participant and some amount of survivor benefit to the named beneficiary When a joint and survivor annuity is elected, the monthly benefit paid to the Participant upon retirement will be less than the Life Only option. This is because if the Participant were to pre-decease the Alternate Payee, the Plan will be paying some percentage (as determined by the Plan terms and conditions) to the Alternate Payee for the remainder of his or her life.
Does the Plan Allow a Change in the Form of Survivor Benefit After Divorce?
Normally, plans do not allow a change after an election has been made, but there are a few plans that allow this change such that asking does not hurt.
Should Election at Retirement Remain the Same?
If the parties intend to change the election made (either to add the Alternate Payee as a beneficiary or delete/remove them) it is important to speak with the Plan to confirm whether this is possible.
What Form of Benefit is Alternate Payee Able to Receive?
A shared approach means that the Alternate Payee must wait until the Participant retires to begin receiving his or her benefit. In the Shared approach, the Alternate Payee’s benefit will end upon the Participant’s death unless a survivor benefit naming the Alternate Payee as a beneficiary is selected.
In the segregated approach, the Alternate Payee may begin receiving their benefit at any time after the Participant and the Alternate Payee reach the earliest retirement age that is eligible under the plan. The Alternate Payee will normally receive their benefit over the course of their lifetime.
When Does the Alternate Payee’s Benefit End?
- Date of Alternate Payee’s Retirement: this means that the date the Alternate Payee elects to retire under the Segregated Approach or upon Participant’s retirement date under the Shared Approach. This is different than the date that is used to determine the marital property portion of an account under the time rule. This is the date that is most often used.
- Date of Separation: this means that the Alternate Payee does not participate in any potential benefit increases that the Participant receives based on continued years of service or raises in salary after the conclusion of the parties’ marital period. This date would limit the Time Rule to what the calculation would be as though the parties were divorced on the date of separation.
- Date of Dissolution: this is often the most common date used and means that the Alternate Payee would not participate in any benefit increases that occur after the date of the parties’ divorce.
Is Alternate Payee Entitled to Early Retirement Enhancements?
An Early Retirement Enhancement is a benefit offered to a Plan Participant to encourage or allow them to retire earlier than they may have otherwise been eligible to retire. If the Participant receives these retirement enhancements, the Alternate Payee may be entitled to receive some portion of the enhancement(s) as marital property. The theory is that many of these enhancements are offered to long term employees based on length of service and the years the Participant was in the plan during the marriage provided the entitlement to this interest. However, if there is a separate interest, and the alternate payee elects to retire prior to the Participant, many plans will not allow the Alternate Payee’s benefits to be increased for these enhancements. Again, another important reason why the Plan information and entitlements need to be researched and clearly understood.
Is the Alternate Payee Entitled to Cost of Living Adjustments (COLA)?
Most Retirement Plans provide annual COLAs. Generally, the Alternate Payee should share in the proportionate interest of any adjustments or their share of the Retirement Plan becomes progressively more and more devalued.
Who is Entitled to Alternate Payee’s Benefit if the Alternate Payee Pre-Deceases the Participant?
If the Alternate Payee receives a Segregated award, then they may elect a form of benefit available under the plan and select their own beneficiary upon retirement. However, any benefit elected other than their own individual Life Annuity will reduce their monthly benefit. If Alternate Payee elects the Share Approach then the benefit will continue to a beneficiary during the Participant’s Life time. Upon the Participant’s death, the Alternate Payee’s benefit will terminate as well.
Does the Alternate Payee Receive a Survivor Benefit?
If the shared approach is elected, the marital interest may include a survivor benefit. In some cases, however, the parties agree to compensate Alternate Payee in a different way such as life insurance. Participant’s benefit terminates upon their death and thus, the only way a benefit would continue to the Alternate Payee is if he or she receives a survivor benefit.
Who Should Pay for the Survivor Benefit?
When a Survivor Benefit is elected for the Alternate Payee, the total paid out by the plan is reduced by the cost of the annuity. The plan will typically default to applying the reduced benefit amount to a pro rata share of each party’s receipt, however, the parties can agree to have the reduction apply solely to the Participant’s or Alternate Payee’s share.
How Much of the Survivor Benefit is Alternate Payee Entitled to Receive?
The default consideration is a pro rata share. This allows a participant to potentially name another survivor beneficiary for the remaining share of the survivor benefit if he or she gets remarried in the future. However, parties often agree to the Alternate Payee receiving 100% of the survivor benefit.
Is Alternate Payee Entitled to Receive a Qualified Pre-Retirement Survivor Benefit?
If the Participant dies prior to the Participant receiving any retirement benefits then the Plan will pay a QPSA to the Participant’s named beneficiary. Usually the cost of the QPSA is paid by the retirement plan.
If Employee is Already Retired, What Form of Benefit was Already Selected?
As reviewed above, the options would be a Joint and Survivor or Single Life annuity. For most plans, once these elections are made, the election cannot be changed, but we still need to know what election was made.
Date of Division of the Account:
We need to know the date on which the parties agreed to value and divide the account. This is usually separate from the separation date, however, sometimes parties will agree to use a separation date, a date of valuation or some other date.
The Method of Division Used:
The parties can elect to determine division through a fixed dollar amount or a percentage of division. Most plan administrators will reject a QDRO that provides for division through some other method.
We also need to know whether the Alternate Payee’s share should be adjusted for cost of living increases and gains and losses that occur after the designated date of division but prior to the date of distribution (or entry of the QDRO).
Will the Plan Administrator Establish a Separate Account or Will the Alternate Payee receive Distribution of Funds as soon as Possible?
Some plans will allow the Former Spouse to set up a separate account within the plan. Other plans require that there be either a direct distribution (cash out) or a rollover to another separate/individual retirement account (IRA). We need to know which method you prefer.
What is the Difference Between a Distribution and a Rollover?
If the former spouse elects a distribution, there will likely (almost certainly) be income tax due on the balance that is distributed to the former spouse. If the former spouse elects a rollover, the taxes will be deferred until the former spouse begins taking distributions. If you have questions about the tax implications of these options, you should consult directly with your tax professional to make this decision.
Typically, however, if a former spouse takes an outright distribution pursuant to a QDRO, they will avoid the 10% penalty that would otherwise apply if the Participant took an early distribution.
Loans Outstanding Against the Account:
Most defined contribution plans allow the Participant to borrow from/against his or her account. The valuation of the account will vary depending upon whether the loan amount is added back to the account balance for purposes of valuation. Another issue is who should be responsible for repayment of the loan, the employee, the alternate payee or both parties? Hopefully, this issue was already addressed by the marital settlement agreement.
Have Any Other QDROS Been Filed with the Plan?
This would apply to any interim QDROs filed during the divorce case process or any previous QDROs filed by the Participant and/or a previous spouse.
In order for the Defense Finance and Accounting Service (DFAS) to process a military pension division order, (i.e. payment directly from the government), the parties must have been married for at least ten years during the time the Participant completed 10 years of creditable military service. When calculating the 10/10 requirement, the date of dissolution, not the date of filing or the date of separation will be used.
What Happens if the parties Do Not Meet the 10/10 Requirement?
The Alternate Payee is still entitled to an interest in this valuable marital property but the retirement plan will need to be valued to determine the value of the plan and it will either need to be offset against other marital assets or paid by the Participant spouse over time. Alternatively, spousal support can be awarded in lieu of the value of the military retirement/instead of an allotment directly from DFAS.
Is Participant Retired?
It is important for our office to know whether the participant/military member is active duty or retired. This allows us to know whether the retirement is in pay status or continues to accrue an interest/equity.
What if a Military Member is Not Retired or is a Reservist?
Effective January, 2017, changes were made to the Uniformed Services Former Spouses’ Protection Act (USFSPA) which regulate the division of military retirements in divorce. Under the amendments, a former spouse’s share of retirement benefits are frozen on the date of dissolution and the former spouse will not get the benefit of any increase in military retirement benefits earned by the member after the divorce.
Federal Retirement Division:
CSRS and FERS:
In order to divide these plans there are two threshold questions: 1) was the employee married to the spouse for at least nine months; 2) did the employee participate in the plan for at least 18 months.
If the answer to either of these questions is no, the COAP (court order acceptable for processing) cannot be processed.
Is Participant Retired?
It is important that we know whether the Participant is still actively working or if he or she is in pay status.
As reviewed above, if Participant is already retired, we need to know what form of benefit the Participant elected upon retirement, either the Life Only Annuity or the Joint and Survivor Annuity. Similarly, as outlined above, we need to determine the lifetime benefit the Alternate Payee is entitled to receive, either based on the time rule or based on a monthly fixed/flat dollar or percentage amount.
Finally, we need to know whether the parties intend for the Alternate Payee to receive Cost of Living Adjustments (COLAs).
What is a Defined Contribution Plan and What is a Defined Benefit Plan?
A defined contribution plan is one in which the employee has an individual account with all contributions from the employee being collected (together with contributions, if any made by the employer) and the investment gains and/or losses being tracked on the employee’s funds.
What Types of Defined Contribution Plan Exist?
There are a variety of different types of private and employer sponsored plans, but they can include profit-sharing plans (where contributions depend on company performance), bonus plans (the plan invests securities from the company itself for the benefit of the employee), 401k plans (where the employee provides either taxable or non-taxable contributions to the plan) and other similar variations to these plans. The key component to these plans is that they are maintaining specific, separate funds that belong to each individual employee. The amount that would be divided subsequent to divorce is determined by either the time rule or a specific contribution amount or percentage.
What is a 401(k)?
A 401(k) is a retirement savings account and provides favorable tax status/implications. Employers usually administer the 401(k) account for the benefit of their employees but most accounts are participant directed, meaning that the employee can elect how they would like their savings funds invested. Most participants choose to invest their funds in low risk mutual funds, bonds or other savings accounts. To apportion some or all of these funds to the alternate payee spouse, a QDRO must be prepared and entered to divide the funds.
What is a 403(b)?
A 403(b) retirement plan is a plan which is similar to a 401(k) but only available to certain, specific public education organizations, non-profit organizations or self-employed ministers/pastors. It is treated relatively similar to the 401(k) in allowing employee contributions as salary deferrals before taxes are paid which allows the money to grow until funds are withdrawn. The primary difference between the 403(b) and the 401(k) is its simplicity for organizations, the reporting requirements to the IRS for organizations maintaining a 403(b) are greatly simplified compared to the 401(k) company requirements.
What is a Defined Benefit Plan?
A defined benefit plan (also known more generally as a pension plan) is generally funded by employer contributions (but some plans do allow employee contributions as well. These plans are intended to provide defined benefits to employees after retirement, generally in the form of a monthly annuity (or payout) for the remainder of the employee’s life. These plans are available in both, public and private sector employment. The monthly benefit is often calculated by taking into account the number of years worked (or contributed into the plan) together with an accounting of the employee’s salary (or in many plans, the average of the highest three-years or five-years of salary).
Do You Need a QDRO for Defined Contribution and Defined Benefit Plans in Divorce?
If you are intending to divide a employer-sponsored defined contribution or defined benefit plan as the result of divorce, you will need a Qualified Domestic Relations Order (QDRO). Pingel Family Law has been drafting QDROs for many, many years and our experience in negotiating, drafting and entering these documents will be invaluable to ensuring that the money is fairly and accurately divided.
"I have known Attorney Pingel for more than fifteen (15) years. Mandee is a lawyer I consider a respected colleague. She has a reputation for being intelligent, knowledgeable about the law, well-prepared and kind."- A Lawyer in Liberty, Missouri