What is a Virginia QDRO and How Does It Affect My Divorce?
A QDRO is a qualified domestic relations order, which will assist with dividing retirement assets. Your Virginia divorce settlement agreement might contain the language that you and your ex have agreed to split the accounts equally, but the QDRO is what is needed to actually move forward with transferring the assets. These only apply to those employed by private companies. It would be a different process if you or your spouse were employed by the federal government.
For some couples, the largest asset to be divided during a divorce is not real estate, it is the retirement accounts. Prior to starting any negotiations on your own about dividing these accounts, you need to make sure you have a complete picture of what retirement accounts each spouse owns. Do you or your spouse have a defined contribution plan like a 401(k) or a 403(b) account? Or, do you have a defined benefit plan like a pension or IRA. What about any retirement accounts that you might have from prior jobs that were not rolled over or accounts with a private investor?
Are QDROs the Same as a Domestic Relations Order?
No, a QDRO is not exactly the same as a domestic relations order. Your Virginia family law court judge can create the DRO, but the retirement plan would have to accept the order before it truly becomes a QDRO. The “q” for qualifying means the retirement plan’s administrator would make it ‘qualified.’
How Retirement Accounts are Split in Virginia
In general, Virginia law considers a pension to be marital property when it was earned during the course of the marriage. Splitting it can be done in one of several ways. The first is to determine the present value, and the other, most common, option is to agree that the spouse’s share will be paid at the time of retirement. This is where the QDRO comes in.
For defined contribution plans, the value of a 401(k) might be offset by another asset or cash. If both spouses have them, then there is the option to add the marital portions together and equalize them by transfer. This is also where a QDRO comes in and will set forth the amount of defined contribution retirement accounts without the penalty of any tax consequences.
Federal government pensions are handled differently and are governed by federal divorce guidelines.
Importance of a Well-Drafted QDRO
You should not attempt to draft a QDRO on your own. This is something only a skilled and experienced Leesburg divorce attorney should be tasked with. Just mentioning the amount is not sufficient, even if a judge signs off on it. There are a number of legal requirements that need to be spelled out, and failure to include these means your rights may not be protected. Each retirement plan is different, and therefore, each QDRO should be tailored to meet the needs of that specific plan.
If you have questions or need assistance with a QDRO, contact Whitbeck Cisneros McElroy PC at 703-997-4982 to schedule an initial consultation.