Copyright © Gary R. Spritz, Esquire, Wilmington family law attorney .All rights reserved.
In a Delaware Divorce, pensions, 401(k)s. 403(b)s, Deferred compensation Plans, Thrift Savings Plans are all divisible if they are marital property. How does Delaware Family Court in divorce divide them? They require a QDRO or a QDRO type order.
What is a QDRO? It is a Qualified Domestic Relations Order which enables a divorced spouse to receive their interest in a pension without triggering a taxable event. A Company which has a retirement plan that is covered by ERISA has to honor them. This is whether the spouse is vested or not.
Are all pensions or thrift savings plans covered by ERISA? No. However, many of these such as certain state or county plans or military retirement will honor an appropriately drafted order. In fact, the court may sometime refer to that order as a QDRO (as reference) even though technically they are not QDROS.
How do you get a QDRO or an interest in your spouse’s pension or 401(k). First off there you or your spouse must have requested Property Division in the Delaware Divorce Petition or Answer and Counterclaim before the Divorce is granted. These can be done by Motion but the timing has to be before the Divorce is granted or else you have to seek court permission to open the matter and this is much more difficult. Second, you have to get the Judge to sign an order granting you your interest in the pension and this needs to be carefully drafted. If it isn’t the Company or Plan administrator will not approve it. Then you have to send a certified copy of the order to the Plan Administrator who determines whether or not it will be implemented or qualified.
Lastly, QDROs are available to enforce child support and alimony obligation,even though this most often comes in a divorce.
This may seem difficult. However, I have been doing these for decades and while, you should seek help, it is worth it as often, the value of the retirement is the largest asset in the divorce and should not be ignored.Questions? Call me for a low cost initial consultation at (302) 655-0900 or email me using the form below..