The first step, of course, is to make sure that your divorce settlement or judgment contains a provision giving you a right to receive a piece of your spouse’s retirement plan. This provision should be sufficiently detailed to ensure that your QDRO will contain everything you need to get your fair share of the pension or retirement account. If you don’t know all the provisions of the plan (and few people do), don’t be afraid to ask questions of your attorney — as part of the disclosure process in your divorce or settlement negotiation, your attorney can obtain a copy of the summary plan description of the retirement plan. If your spouse does not have a copy, it can be obtained directly from the plan using an appropriate authorization form, or a disclosure subpoena, if necessary.
Armed with information about what your spouse’s retirement plan provides, your attorney should be able to negotiate a comprehensive agreement that gives you a fair share of all retirement benefits offered under your spouse’s plan. These benefits include survivorship rights (in the event that your former spouse dies first, the pension continues coming to the non-employee spouse), disability pension benefits (if the former spouse becomes disabled before retirement, the pension will switch to a disability pension), and pre-retirement death benefits, to name few.
As soon as the divorce agreement is signed and the judgment of divorce is issued, your attorney should prepare and submit a proposed form of the QDRO (or DRO) to the Court for the judge’s signature. The preparation of this proposed order is sometimes delegated to a pension actuary, but caution must be exercised here. Even if your attorney does not draft the order, your attorney should always supervise the process, because the actuary may overlook the exact provisions required by your divorce agreement or judgment. If the wrong QDRO is signed by the Court, it can be expensive (or impossible) to correct the mistake, causing you to lose a portion of the benefits you were entitled to under the divorce agreement.
Once the Court has signed the QDRO (or DRO), your attorney should send it to the plan so that it is in your former spouse’s file at work. This is not only important as a practical matter, since this is the only way the employer’s plan administrator could know about your interest in a retired former spouse’s retirement plan, but it is also required by law for private pension plans. Unless (and until) the plan administrator receives a certified copy of the signed QDRO, it cannot be “qualified” as complying with the plan guidelines. Without qualification, the plan administrator has no power to distribute (or “assign”) some portion of the benefit to you.