The lawyers at Skillern Firm have been presented with this issue many times. There are times when the Court may not actually give an order to distribute an ex-spouse’s retirement funds, the division of which was outlined in the decree. We see this often where people represent themselves in the divorce process or use forms promulgated by a pro bono or volunteer agency. It is important to first understand the mechanism that is to be used to actually obtain the distribution of retirement funds that the Court awarded in the divorce decree – a Qualified Domestic Relations Order or QDRO.
The divorce decree entitles me to a percentage of my former spouse’s retirement plan assets, now what?
Often, a divorce decree will entitle one or both spouses to receive a portion of the other spouse’s retirement plan benefits/assets that were accumulated during the marriage. However, simply having the language of the decree is not enough. In order to actually get the retirement plan to distribute the funds to which one is entitled under the terms of the decree, one must have the Court sign a Qualified Domestic Relations Order or QDRO. The QDRO is then presented to the administrator of the former spouse’s retirement plan to actually effectuate the distribution of the funds that the person is entitled to receive under the terms of the divorce decree.
What is a Qualified Domestic Relations Order or QDRO?
In Texas, a Qualified Domestic Relations Order (“QDRO”) is a document that recognizes that a spouse, former spouse, child, or other dependent is entitled to receive all or a portion of the benefits payable to a participant under a retirement plan. The amount or percentage will be outlined in the divorce decree. The person who will be receiving the funds is the “alternate payee.” It is one thing to have the right to all or a portion of the assets or benefits of a retirement plan. It is entirely another to actually be able to get those funds distributed to a person who is an alternate payee. Just like it is one thing to have a money judgment against another. Having the piece of paper from the Court give someone a legal right – but that right then has to be enforced. A QDRO is the vehicle that is used to enforce the right to receive all or a portion of the benefits and actually have those benefits or assets distributed. Or to use another metaphor, a divorce decree is like the driver’s license, giving one certain rights and privileges. But one must still have a car to be able to actually drive. The decree is like the license and the QDRO is like the car.
I have a divorce decree, but the Court did not give me a QDRO. How do I get one?
There is a procedure in Texas to obtain a QDRO after a divorce decree has been rendered. This is done by filing a petition with the Court to enter a post-divorce Qualified Domestic Relations Order. It is filed as a “petition” which is a new lawsuit requesting that the Court enter an order for a QDRO. The person seeking the entry of the QDRO must inform the Court that the alternate payee is entitled to receive retirement benefits per the decree and that no QDRO effectuating the division of the property, as set out in the decree, was signed. In Texas, the Court can also grant attorney’s fees to the person filing the petition[i]. See full section on Chapter 9 of the Texas Family Code https://statutes.capitol.texas.gov/Docs/FA/htm/FA.9.htm#9.103
Although this blog attempts to simplify the process, obtaining a post-divorce qualified domestic relations order can be a technical process and should not be attempted on your own. If you would like to speak to someone about your particular situation, call our office at (713) 229-8855 and speak to one of our experienced Family Lawyers. We are here to help you as we have helped many others.
* At Skillern Firm, we pride ourselves on the results we have achieved for those we help. We stand ready to assist you with any of your Family Law needs. Contact us today. https://www.skillernfirm.com/