Law Offices of David P. Schwarz Family Law Lawyer

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Divorce And The Qualified Domestic Relations Order (QDRO)

At the Law Office of David P. Schwarz, as divorce lawyers, we are constantly encountering qualified domestic relations orders in divorce proceedings. QDROs appear in almost all divorce cases where a party works for some kind of company. Please contact our office for a consultation at 949-296-4119 or via the web.

An experienced divorce lawyer will most certainly have experience 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 court’s 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, 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.”

A skilled lawyer will bring to the court’s 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.

QDROs Are Complex. We Have The Experience To Help You.

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 949-296-4119.