QDRO in a Retirement and Divorce Case
How do i get my half of my husband's (wife's) 401k in a South Carolina divorce? In a divorce or separation, one party often receives the marital portion of the other's retirement and pension accounts. However, this is not automatic and requires a separate order from the court, called a Qualified Domestic Relations Order, commonly referred to as a QDRO. However, your family law attorney may not prepare this order for you and you may realize, sometimes years later, that you never received your money. You need to be sure that someone is preparing the order. If there is an agreement, it is recommended that the ODRO order be presented to the judge for his signature at the final hearing.
Participant - The person that the plan belongs to is the participant.
Alternate Payee - Usually the former spouse (but could also be a child or other dependent) of the participant that is entitled to receive all or a portion of proceeds under the retirement plan. For purposes of the QDRO provisions, an alternate payee cannot be anyone other than a spouse, former spouse, child, or other dependent of a participant.
The requirement for a Qualified Domestic Relations Order was created by the Retirement Equity Act of 1984 as an amendment to the anti-alienation provisions of the Employee Retirement Income Security Act of 1974 (ERISA), that protected retirement plan assets from creditors.
South Carolina divorce law determines the division of marital property in a divorce. If you are awarded certain sums of money or a percentage of a retirement or pension plan and you want to collect, you will normally need a QDRO or qualified domestic relations order. Your divorce decree is not enough for you to be able to collect your portion of the retirement plan awarded to you in your South Carolina divorce.
If you are awarded a portion of your ex spouse's retirement, you need to be sure that your attorney prepares the Qualified Domestic Relations Order and has it submitted to the court and then to the financial institution. To be effective, the QDRO must be signed by the judge and also approved by the retirement plan administrator.
The preparation of the order dividing the retirement is normally a separate charge from representing you in the divorce. When you retain your attorney, be sure that they include the preparation of the QDRO.
A Qualified Domestic Relations Order cannot be used to divide a military pension. For information on military pensions see
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