How do I know if the judgement drafted sufficiently protects my client’s rights to the ex-spouse’s pension benefits?
Louise Nixon, President of QDRO COUNSEL INC., answers:
The family law attorney’s first goal when drafting judgment language dividing a pension is to create a “domestic relations order” sufficient to place a hold on that pension benefit until a qualified domestic relations order is served on the pension that complies with ERISA for a private plan, or until a domestic relations order is served on the pension that meets the criteria for implementation for a public plan. (Both public and private domestic relations orders are collectively referred to as “QDROs” in this article). And the family law attorney’s second goal is to protect survivorship rights for the nonparticipant spouse in the event the participant dies before a QDRO is completed.
Some very general sample judgment language dividing 2 retirement plans is as follows:
“Wife is awarded a separate marital property interest equal to one-half of all benefits accrued or to be accrued under any retirement plan in which Husband has accrued a benefit as a result of Husband’s employment during the marriage, including but not limited to the following retirement or pension plans:
ABC, INC. DEFINED BENEFIT PLAN
ABC, INC. DEFINED CONTRIBUTION PLAN
Until a subsequent domestic relations order is filed, in the event Husband predeceases Wife, the Plans shall, as allowed by law and the terms of the Plans, continue to treat the parties as married for purposes of survivor rights or benefits available under the Plans to the extent necessary for payment of an amount equal to Wife’s marital property interest, or for all of the survivor benefit if at the time of death of Husband there is no other eligible recipient of the survivor benefit.”
Then after the judgment is filed, serve it on the plan(s)! In most cases, your client will then be protected for a while until a QDRO is filed.
This article is for general informational purposes only, is not intended to be legal advice to create an attorney client relationship, and it may not be appropriate for an individual’s specific situation. To make sure your client is protected, the parties should retain an experienced attorney who specializes in the division of pension benefits in divorce before the divorce is final to ensure the division of the retirement benefits are handled correctly.
Lousie Nixon is founder and president of QDRO Counsel Inc., a professional law corporation. Ms. Nixon’s law firm focuses on retirement benefits, specifically determining the community or marital interest in pension benefits earned through employment and in consulting and/or drafting appropriate orders for the division and disposition of those interests. Her firm’s website is: www.qdrocounsel.com.
There are numerous early retirement benefits a family lawyer must keep in mind when clients’ pensions are being divided.