DRAFTING JUDGMENTS OF DIVORCE OR MARITAL SETTLEMENT AGREMEENTS TO FACILITATE QDRO'S AND AVOID POTENTIAL DISPUTES

Divorce judgments and marital settlement (property settlement) agreements are not, standing alone, qualified domestic relations orders (QDRO's). However, the language in your judgment or agreement is important. For example:

If a pension (defined benefit) plan is at issue, you should consider setting forth the method by which the benefit will be divided. In general, the non-participant spouse benefits if a "separate interest" approach is utilized. Under this approach, the plan administrator carves out the Assigned Benefit and adjusts that benefit to be payable over the life of the Alternate Payee. Alternate Payee can start benefits any time on or after the Participant's earliest retirement age.
If a defined contribution plan (such as a 4019(k) or Employee Savings Plan is at issue, you should state the valuation date, and set forth whether the award should be adjusted for interest, earnings and losses from the valuation date through the date of distribution
In all circumstances, the judgment or settlement agreement should clearly identify the subject plans.

By paying attention to the above, divorce attorneys and litigants can help avoid disputes that sometimes arise post-judgment, when QDRO forms are prepared and submitted.

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