Is it possible for a wife to use a second QDRO to secure spousal support arrears on the husband’s remaining retirement benefits?
Attorney Darren J. Goodman answers:
Yes. By definition, A Qualified Domestic Relations Order is an order relating to the provision of spousal support, child support or marital property rights. There is nothing that prohibits multiple QDROs in the same case.
If a defined benefit is in pay status to the participant there is a stream of payments from which the former spouse’s share of spousal support can effectively be “garnished” (assigned). Such a QDRO for spousal support would typically assign the former spouse a fixed dollar award from the participant’s monthly benefit for a period of time until the support obligation is paid in full (i.e., $1,000 per month for 100 consecutive months). Naturally, the QDRO will need to have a provision terminating the plan’s obligation upon the death of either party (i.e., all benefits payments to the former spouse hereunder shall terminate upon the earlier of the death of the participant or alternate payee).
If the participant’s benefits are not in pay status, it is still possible to create a QDRO requiring immediate payment as compensation for arrears; although this is more complicated since it would require the payment of an additional percentage share to the former spouse that is the actuarial equivalent of the spousal support award. For instance, if the present value of the participant’s remaining accrued benefit is $400,000, an award of 25% of the participant’s remaining accrued benefit is the equivalent of the $100,000 spousal support obligation. Since such payments would be made over the former spouse’s lifetime, the former spouse will receive more or less than the support owed depending on how many payments she receives. For this reason, a QDRO for support involving a defined benefit that is not in pay status is less advantageous than one involving benefits in pay status.
Attorney Darren J. Goodman is the founder and president of QDRO Prep, a law practice dedicated to assisting attorneys and non-attorneys throughout California with the division of retirement plan assets in the context of a domestic relations proceedings. In 2007, QDROPrep expanded service to attorneys and non-attorneys in Texas. His firm’s website is: www.qdroprep.com.
Using QDROs to collect child support works under the Internal Revenue Code. QDROs can also be used to pay alimony or retrieve all or a portion of the child support arrearages.