Using a QDRO to Facilitate the Transfer of Retirement Plan Assets in a Divorce
Posted by Douglas Sosnowski on August 01, 2024
Dividing assets during a divorce can be challenging, particularly when it comes to qualified retirement plans. While tangible assets like homes and vehicles can be sold and the proceeds divided, retirement plan assets require a more complex approach. A Qualified Domestic Relations Order (QDRO) can enable the transfer of retirement plan assets to a nonparticipant spouse without triggering significant tax penalties, thereby preserving more of the retirement savings for both parties.
How a QDRO Functions
A QDRO is a legal tool that facilitates the division of qualified retirement plan assets between divorcing spouses. Issued by a court or appropriate authority, the QDRO specifies that one spouse is entitled to a portion of the other spouse’s retirement plan assets. The order typically indicates either a specific dollar amount or a percentage of the plan assets that will be transferred to the nonparticipant spouse, known as the "alternate payee."
QDROs can be applied to plans covered by the Employee Retirement Income Security Act (ERISA), including 401(k) plans, traditional pension plans, and other qualified plans. In contrast, Individual Retirement Accounts (IRAs), which are not covered by ERISA, are usually divided according to the terms of the divorce agreement.
With a QDRO in place, the alternate payee can receive distributions without incurring the usual early withdrawal penalties, regardless of age. The QDRO must include key information, such as the names and addresses of both parties, the amount or percentage of the assets being transferred, and the payment terms. It is essential to work with legal and financial advisors to ensure the order is properly drafted and approved by the court.
Once approved by a judge, the QDRO must be submitted to the retirement plan administrator for execution, following the plan's specific process for QDRO filings.
Payment Options Available to the Alternate Payee
When a QDRO is in place, the alternate payee has several payment options. They can choose to receive a lump-sum distribution, although this could result in a higher tax burden. Alternatively, the alternate payee can opt for regular payments similar to those received by the plan participant, which can spread out the tax impact.
Another option is to roll over the assets into another qualified plan or an IRA, avoiding immediate taxation if the rollover is completed within 60 days. Lastly, the alternate payee might decide to leave the assets in the original plan, potentially making additional contributions if allowed by the plan.
Conclusion
Dividing retirement plan assets in a divorce requires careful planning and the use of tools like QDROs to avoid unnecessary tax penalties. For further assistance with the process, including drafting and executing a QDRO, it is advisable to consult with experienced legal and financial professionals.
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Doug is a Partner with Brisbane Consulting Group, LLC providing business valuation, forensic accounting, and litigation support services. He has extensive valuation experience and has served as a financial consultant and expert to attorneys in the economic aspects of matrimonial dissolution. Doug has experience consulting with publicly traded entities and valuing a variety of closely held companies in connection with mergers, acquisition and divestitures, business combinations, estate and gift tax planning, ESOPs, and purchase allocations.