Can I write a QDRO into a settlement agreement?

July 11, 2020 8:43 AM

I’m getting divorced and need to get a large chunk of cash to my wife. I’d like to do this with a QDRO from my 401k to hers, but I know a judge needs to order that. Is it a given that they will if we both agree? Can I write it into the settlement agreement? I know I will eventually need a lawyer and that you are not my lawyer but would like to plan ahead. Thank you!
posted by ftm to Law & Government (3 answers total)

This is a question that only a lawyer licensed in your state can answer because any useful answer to this question would be legal advice.

One way you can plan ahead is by gathering all of your financial documentation and write out your list of questions to hand over to the lawyer when you hire them.
posted by Handstand Devil at 9:52 AM on July 11, 2020 [1 favorite]

A QDRO is a separate document from the settlement agreement. Depending on your retirement plan, they might actually have templates they prefer. You should write into your settlement agreement that you guys agree to whatever via QDRO, but the actual QDRO is a separate thing.
posted by katypickle at 12:54 PM on July 11, 2020

Actually, although the rules relating to divorce are based on state law, and vary state by state, the rules relating to 401k plans (and IRAs) and the creation of QDROs are matters of Federal law and they do not vary. But both sides need to keep in mind that the dollars in the 401k do not equal the dollars outside it, since the dollars in still need to pay their taxes due.

In general, whatever your state, an agreement on the division of property in advance of consulting a lawyer or going to court is typically welcome.
posted by yclipse at 5:27 PM on July 11, 2020