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Avoiding Traps in QDROs
Before 1985, there was no way to attach the assets in a qualified pension plan for a spouse in a divorce proceeding. While a state court may have awarded a portion of the benefit, a plan administrator could not comply based on the federal laws governing pension plans (there were some exceptions for benefits already in pay status). The Retirement Equity Act of 1984 altered that by adding to the Internal Revenue Code ' 414(p), which allows qualified pension plans to divide plan assets if ordered through a properly drafted Qualified Domestic Relations Order (QDRO). The rules surrounding QDROs are complex; guidelines now abound, including guidance from both the IRS and the Pension Benefit Guarantee Corporation. What follows are some tips to assist drafters in avoiding common traps in these subtle
documents.
Can We Circumvent the Process?
Most family law attorneys understand the relevance of a QDRO when attaching pension assets through a divorce. However, occasionally, if the fact
pattern cooperates, there may be a way to circumvent the entire QDRO process (IRC ' 408(d)(6) in lieu of a QDRO). Many divorces involve several assets, ie, pension plans, a residence, taxable assets and IRAs. As the goal of a divorce is to apportion the existing assets in some sort of equitable manner, offsets are used. The pension is awarded to one, while the residence is awarded to the other; the taxable assets are given to the plaintiff, while the stock options are awarded to the defendant ' or some combination thereof ' is decided on. Because the IRAs are also sometimes split, along with the pension, it's worth addressing the simplest way to effectuate these final divisions.
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