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1.  What is a Qualified Domestic Relations Order?
A 'qualified domestic relation order' (QDRO) is:
  • a domestic relations order
  • that creates or recognizes the existence of an 'alternate payee's' right to receive, or assigns to an alternate payee the right to receive, all or a portion of the benefits payable with respect to a participant under a pension plan, and that includes certain information and meets certain other requirements.
2.  What is a 'domestic relations order'?
To be recognized as a QDRO, an order must be a "domestic relations order." A domestic relations order is:
  • a judgment, decree, or order (including the approval of a property settlement) 
  • that is made pursuant to state domestic relations law (including community property law) and 
  • that relates to the provision of child support, alimony payments, or marital property rights for the benefit of a spouse, former spouse, child, or other dependent of a participant.

A state authority, generally a court, must actually issue a judgment, order, or decree or otherwise formally approve a property settlement agreement before it can be a 'domestic relations order' under ERISA. The mere fact that a property settlement is agreed to and signed by the parties will not, in and of itself, cause the agreement to be a domestic relations order.  

Pension plans are not permitted to follow the terms of domestic relations orders purporting to assign pension benefits unless they are QDROs.
3.  Who can be an 'alternate payee'?
A domestic relations order can be a QDRO only if it creates or recognizes the existence of an alternate payee's right to receive, or assigns to an alternate payee the right to receive, all or a part of a participant's benefits. For purposes of the QDRO provisions, an alternate payee cannot be anyone other than a spouse, former spouse, child, or other dependent of a participant.  
4.  Must a domestic relations order be issued as part of a divorce proceeding to be a QDRO?
No. A domestic relations order that provides for child support or recognizes marital property rights may be a QDRO, without regard to the existence of a divorce proceeding.   
5.  May a QDRO provide for payment to the guardian of an alternate payee?
Yes. If an alternate payee is a minor or is legally incompetent, the order can require payment to someone with legal responsibility for the alternate payee.  
6.  Must all QDROs have the same provisions?
No. Although every QDRO must contain certain provisions, such as the names and addresses of the participant and alternate payee(s) and the name of the plan(s), the specific content of the rest of the QDRO will depend on the type of pension plan, the nature of the participant's pension benefits, the purposes behind issuing the order, and the intent of the drafting parties.  
7.  Who determines whether an order is a QDRO?
Under Federal law, the administrator of the pension plan that provides the benefits affected by an order is the individual (or entity) initially responsible for determining whether a domestic relations order is a QDRO. Plan administrators have specific responsibilities and duties with respect to determining whether a domestic relations order is a QDRO. Plan administrators, as plan fiduciaries, are required to discharge their duties prudently and solely in the interest of plan participants and beneficiaries.  
8.  Who is the 'administrator' of the plan?
The 'administrator' of an employee benefit plan is the individual or entity specifically designated in the plan documents as the administrator. If the plan documents do not designate an administrator, the administrator is the employer maintaining the plan, or, in the case of a plan maintained by more than one employer, the association, committee, joint board of trustees, or similar group representing the parties maintaining the plan.  
9.  May a plan administrator charge a participant or alternate payee for determining the qualified status of a domestic relations order?
The Department of Labor has taken the position that Defined Contribution plans (401(k), profit sharing, or other individual account plans) may charge a reasonable administrative fee to offset the cost of administering a QDRO. In our experience, these fees may range from $300 to 1,500, but there is no minimum or maximum other than the reasonableness of the charge. Defined Benefit (Pension plans) may not impose a fee or charge on a participant or alternate payee in connection with a determination of the status of a domestic relations order or the administration of a QDRO.  
10.  May plan administrators provide parties with a model form or forms to assist in the preparation of a QDRO?
Yes. Plan administrators may develop and make available 'model' QDRO forms to assist in the preparation of a QDRO. Plan administrators are required to honor any domestic relations order that satisfies the requirements to be a QDRO. In the view of the DOL, therefore, a plan may not condition its determinations of QDRO status on the use of any particular form. If you intend to use the model language, be certain you understand the effect of the form's biases.  
11.  In determining the qualified status of a domestic relations order, is the administrator required to determine the validity of the order under state domestic relations law?
No. A plan administrator is generally not required to look beyond the 'four corners' of the order.  
12.  What disclosure rights does an alternate payee have under a QDRO?
ERISA provides that a person who is an alternate payee under a QDRO generally shall be considered a beneficiary under the plan for purposes of ERISA. Accordingly, the alternate payee must be furnished, upon written request, copies of a variety of documents, including the latest summary plan description, the latest annual report, any final annual report, and the bargaining agreement, trust agreement, contract, or other instrument under which the plan is established or operated. The administrator may impose a reasonable charge to cover the cost of furnishing such copies.