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QDROs for Enforcement Purposes

By Michael B. Solomon
March 29, 2004

As matrimonial practitioners, we are often confronted with the problem of enforcing either pendente lite or post-judgment awards of support, equitable distribution and counsel fees. Perhaps one of the most overlooked enforcement tools is the Qualified Domestic Relations Order (QDRO). While QDROs are used routinely to distribute all kinds of qualified deferred compensation benefits, they are also available for enforcement purposes.

In fact, some of the limitations that apply to other enforcement remedies do not apply to QDROs. For example, before a party may be held in civil contempt in the Supreme Court, the moving party must first establish that less drastic alternative civil remedies (DRL '' 243 and 244 and CPLR 5241 and 5242) have been exhausted or that the resort to such remedies would be ineffectual under the circumstances. While a QDRO for enforcement purposes is certainly a drastic remedy — particularly because it may trigger adverse tax consequences — there is nothing in the case law that requires the moving party first to seek enforcement through traditional means.

Another example is the limitation on the use of income-deduction orders and income executions for support enforcement (CPLR 5241 and 5242). These enforcement remedies are limited to “support” orders and may not be used to enforce equitable distribution awards or counsel fees in connection with such awards. No such limitation may exist with respect to QDROs.

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