10 Feb What is a QDRO?
QDRO stands for Qualified Domestic Relations Order. The most common use of a QDRO is in the setting of marital agreements dealing with the division of a spouse’s retirement account. The QDRO gives the court the ability to approve a means through which funds of an account may be paid to an alternate payee, i.e. the spouse of the retiree.
South Carolina’s statutory law sets forth details regarding requirements for a QDRO and reasons a QDRO may be rejected.
South Carolina Code Section 9-18-20 (A) sets forth the types of payments that can be made to an alternate payee via a QDRO:
“[A] qualified domestic relations order may order that all or any part of any (1) retirement benefit, (2) withdrawal or refund of contributions, (3) disability benefit, or (4) death benefit that becomes payable under the retirement system on account of the member or retired member, instead be paid by the system to the alternate payee. No other benefits provided under the retirement system may be paid to an alternate payee.”
Subsection (B) further sets out the “dos and don’ts” of QDROs, whereby a QDRO exists where the order:
- clearly specifies the retirement system to which it applies;
- clearly specifies the name, social security number, and last known mailing address of the member or retired member and the name, social security number, and mailing address of the alternate payee covered by the order, and states the date of marriage;
- clearly specifies the types of benefits described in subsection (A) to which the order applies;
- clearly specifies the amount or percentage of each benefit to be paid by the retirement system to the alternate payee or the manner in which the amount or percentage is to be determined;
- clearly specifies the number of payments or the period to which the order applies;
- clearly specifies whether the alternate payee is to share proportionately in benefit increases due to cost-of-living adjustments;
- does not require the retirement system to pay any benefit at a time or in an amount that would not otherwise have been payable at the time or in such an amount;
- does not require the retirement system to provide any benefit or option not otherwise provided under the provisions of law governing the system;
- does not require the retirement system to provide the alternate payee optional payment forms;
- does not require the retirement system to provide increased benefits determined on the basis of actuarial value;
- does not require the payment of benefits to the alternate payee which is required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order;
- does not require the payment of benefits to the alternate payee before the retirement of a member, the distribution of a withdrawal of contributions to a member, or other distribution to a member, retired member, or beneficiary;
- does not require that the alternate payee be provided the right to designate a beneficiary to receive benefits after the alternate payee’s death;
- does not require that a member, retired member, or beneficiary elect a particular optional payment form or make any other election, except for the designation of the alternate payee as a recipient of death benefits; and
- does not require a member to terminate employment, to withdraw contributions, or to apply for retirement.
And, Subsection (C) explains reasons for a retirement system to reject a domestic relations order as a QDRO:
- does not provide for a proportional reduction of the amount awarded to the alternate payee if payment of benefits commences before the member attains normal retirement age;
- does not provide clearly for each possible benefit distribution permitted under the provisions of the retirement system;
- requires any action on the part of the retirement system that is contrary to any provision of law;
- makes the award of an interest contingent on any condition other than those conditions resulting in the liability of the retirement system for payments under its provisions;
- awards any future benefit increases that are provided or required by law, other than ordinary cost-of-living adjustments; or
- does not provide for a proportional reduction of the amount awarded to the alternate payee if benefits available to the member or retired member are reduced by law.
Who determines if a domestic relations order qualifies as a QDRO and allows for distribution according to the terms of the order?
The administrator of the retirement system has the exclusive authority to decide whether a QDRO exists. Appeals of the decision of the administrator or the administrator’s designee are made to the Administrative Law Court.
In the event the administrator determines a QDRO does not exist, the party seeking appeal may petition the court that issued the order for review, and the issuing court has jurisdiction to then modify the order to meet qualified status.