The Qualified Domestic Relations Order is the court order that ERISA created to allow private pensions to be divided by state court. It’s an order that’s entered by the divorce court and then sent to the plan administrator of the pension or the 401(k) plan to allow the retirement assets to be divided. The employers are bound to follow the court orders. Every state court has enacted a statute that allows them to enter QDROs.
Retirement assets are generally not subject to garnishment by creditors. If you sue someone, you can’t get their retirement asset. What a QDRO technically is, is an order that’s an exception to the garnishment statute. All a QDRO really is, is a garnishment order. It allows the former spouse to get paid what they’re due. QDROs can also be used to garnish retirement income for child support and spousal support and arrearages in child and spousal support.
The federal law provides for that. Virginia had a case that said you couldn’t use it that way for a number of years, but that has been overturned by another case – which was my case – and also by the Statute of Virginia Garnishment Code, which has since been amended to allow QDROs to be used to collect child and spousal support arrearages. That’s a federal law, so that is able to be done in every state, not just in Virginia.
The practitioners may not be familiar with it. It’s rare that you use it, but it is there and available, and that’s another good use of QDROs besides dividing pensions and retirement. You can use it to obtain spousal and child support.
Carolyn Grimes is a family lawyer at the law firm of Wade Grimes Friedman Sutter & Leischner PLLC in Alexandria, Virginia. To learn more about Grimes and her firm, visit www.oldtownlawyers.com.