Divorce and the Qualified Domestic Relations Order

At the Law office of David P Schwarz as a Divorce lawyer we are constantly encountering qualified domestic relations orders in divorce proceedings. QDRO’s as they are often called appear in almost all divorce cases where a party works for some kind of company. Please contact our office for a consultation at 949 735 9266 or via the web. We can also be reached via email at dpslaw66@gmail.com

An experienced Divorce lawyer will most certainly have experienced litigating a QDRO in Orange County family law Court. It is an order, decree or judgment made pursuant to state domestic relations law.

QDRO must have an alternate payee. An example of an alternate payee would be the payment of child support, spousal support or marital property rights such as a spouse, former spouse, child, or other dependent of the participant

A Divorce attorney will also bring to the Courts attention that nonmarital cohabitants and domestic partners can be alternate payees even though they are not spouses and or they are not a child. This all falls under the guise of the Employee Retirement Income Security Act.

Next the family law court must consider if the order meets the criteria of “qualified.” There are three criteria the Court will address to determine this type of threshold.

The Court will look to make sure that the order Identify the plan, participant and alternate payee. Also the plan must state the amount or percentage of the participant's benefits to be paid to each alternate payee or the manner in which such amount or percentage is to be determined. The order must identify the plan (or plans) to which it applies; and must clearly specify the name and mailing address of the participant and of the alternate payee.

Next at the Law Office of David P Schwarz the Court will address if “Alternate payee” declared in the order for the QDRO. An “alternate payee” as defined by ERISA can only be a “spouse, former spouse, child or other dependent of the participant.”—

An Orange County lawyer will bring to the courts attention that the participant spouse cannot qualify as “alternate payee” and thus nonparticipant's waiver of his or her interest cannot be by QDRO;

“alternate payee” provision gives “enhanced protection” to participant's spouse and dependent children in the event of divorce, separation or participant's death, but otherwise does not confer beneficiary status on nonparticipants by reason of their marital or dependent status.

If the domestic relations order recognizes or creates any other person's right to receive the participant's benefits, it cannot be a QDRO … notwithstanding that the order also recognizes the right of a statutorily-defined alternate payee to receive part of the benefits.

At the Law office of David P Schwarz we are extremely well qualified Divorce lawyers who have practiced in Orange County family Courts using qualified domestic relations orders many times. Please contact our office for a consultation at 949 735 9266 or via the web. We can also be reached via email at dpslaw66@gmail.com.

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