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401(k) & Qualified Domestic Relations Orders (QDRO)

An exception to the 10% penalty on distributions from a qualified plan (but not an IRA, an IRA is split via a transfer incident to a divorce, which is not an automatic exception) Qualified Domestic Relations Order, or QDRO (cue-DRO).  A QDRO is often put into place as part of a divorce settlement, especially when one spouse has a qualified retirement plan that is a significant asset.

qdroWhat happens in the case of a QDRO is that the court determines what amount (usually a percentage, although it could be a specific dollar amount) of the qualified retirement plan’s balance is to be presented to the non-owning spouse.  Once that amount is determined and finalized by the court, a QDRO is drafted and provided to the non-owning spouse. This document allows the non-owning spouse to direct the retirement plan custodian to distribute the funds in the amount specified.

In the case of a QDRO, the owning spouse will not be taxed or penalized on the distribution.  In addition, if the non-owning spouse chooses to roll the distribution into an IRA, there would be no tax or penalty on that distribution to her either.  If the non-owning spouse chooses to use the funds in any fashion other than rolling over into another qualified plan or IRA, there will be tax on the distribution, but no penalty.

Many times it may make sense for the non-owning spouse to leave the account with the qualified plan (rather than rolling into an IRA) if there may be a need for the funds at some point in the future.  This will be dependent upon just how “divorce friendly” the qualified plan custodian will be. Sometimes plan administrators do not look favorably on long-held accounts by non-participants. This may require a rollover of the account, eliminating your QDRO special treatment.

Of course other 72(t) exceptions could apply, but if there was a need that did not fit the exceptions and the distributee did not wish to establish a series of substantially equal payments for five years, the QDRO would still apply to the distribution from the qualified plan (as long as the funds are still in the plan that the QDRO was written to apply to).

As an example, let’s say Lester and Edwina (both age 40) are divorcing, and as a part of the divorce settlement, Edwina’s 401(k) plan is to be shared with Lester, 50/50, with a QDRO enforcing the split.  After a couple of years Lester decides he would like to use some of the funds awarded to him from the divorce to purchase a new fishing boat.  As long as the funds are still held in the 401(k) plan, Lester can request withdrawal and receive the funds without penalty, due to the existence of the QDRO.  However, had Lester rolled over the funds into an IRA (or other qualified plan), the QDRO would no longer be in effect, and he would be unable to access the funds without paying the penalty for early withdrawal.  (It is important to note that, in either case, Lester would be required to pay ordinary income tax on the distribution.)

13 Comments

  1. Mary Smith says:

    I have a percentage of a federal pension as alimony through a QDRO, my question is will the Social Security offset of my own Social Security be in effect? It seems the government considers me Federal when it suits them and not when it suits them, and I really don’t know which way this will go.

    1. jblankenship says:

      WEP (or GPO) is only triggered by a pension that you have earned by working for the government entity. Since the pension you will receive is not based on your own work, it will not cause a WEP (or GPO) impact to your Social Security.

      1. Mary Smith says:

        Thank you Jim, that helps so much with planning.

  2. Tammy says:

    Just for the record, the fact is in the case I am enduring is that the ex-wife of my current husband has managed to steal part of an inherited IRA that was specified to go to our children. The ex-wife has NO QDRO & has never had one yet through her attorney & Judge husband they have been able to break all kinds of laws! We have inquired all over southeast Missouri for help to no avail because of who these people are. So, the fact of the matter is it doesn’t matter what the “rules or laws” are.
    By the way, the divorce of my husband from his ex-wife took place 20 years ago in 1998; he hasn’t been able to be free from her on-going attacks on our family.
    Should someone that can help us see this post please do.

  3. Tammy says:

    What are the rules and laws in Missouri governing whether or not an inherited IRA is garnishable or not?

    1. jblankenship says:

      I don’t know for sure – you should contact a Missouri-based attorney for this information.

  4. […] QDRO: Qualified Domestic Relations Order – this is a method for permitting distributions from a qualified retirement plan (not an IRA) in the event of a divorce.  What happens is that, upon the decreed division of assets, if the retirement plan (such as a 401(k) or 403(b)) of one spouse is chosen as an asset to be divided and a portion given to the other spouse, a QDRO is issued.  This QDRO allows the division to occur without penalty… otherwise, making a distribution from a qualified plan before age 59½ would result in penalty and possible taxation, as we all know.  The QDRO provides a way for the receiving spouse to rollover the funds into an IRA of her own, without tax or penalty to either spouse. […]

  5. […] to a divorce with a QDRO there are special rules in place. Here is a link that touches on this: http://financialducksinarow.com/525/…s-orders-qdro/ If you give him 25k after tax money– he will get 25k and you pay taxes on that. If you give him […]

  6. […] discussed the QDRO in several other articles, so we’ll focus on the transfer incident to a divorce in this […]

  7. […] 401(k) & Qualified Domestic Relations Orders (QDRO) […]

  8. […] QDRO: Qualified Domestic Relations Order – this is a method for permitting distributions from a qualified retirement plan (not an IRA) in the event of a divorce.  What happens is that, upon the decreed division of assets, if the retirement plan (such as a 401(k) or 403(b)) of one spouse is chosen as an asset to be divided and a portion given to the other spouse, a QDRO is issued.  This QDRO allows the division to occur without penalty… otherwise, making a distribution from a qualified plan before age 59½ would result in penalty and possible taxation, as we all know.  The QDRO provides a way for the receiving spouse to rollover the funds into an IRA of her own, without tax or penalty to either spouse. […]

  9. […] §72(t)(2)(C) – qualified domestic relations order (QDRO) – upon a divorce settlement […]

  10. […] addition to the 72(t) exception available for folks with a QDRO (see this post), there is also the question of how a QDRO impacts an established Series of Substantially Equal […]

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