QDROs - a powerful tool for child support enforcement.

• Author: Voit, Timothy C.
• Position: Qualified domestic relations orders

If you are like most attorneys who practice family law, you have file cabinets filled with uncollected child support arrearage judgments. Each one of those judgments represents an unhappy or dissatisfied client and an indeterminable loss of income, not to mention hours of court hearings and frustration. Attempts to garnish wages or banks accounts are many times a futile exercise in frustration for you and your client. The efforts usually result in a sentence of jail time for the offending spouse. This is not a desirable result as the payment of arrearages of support during incarceration is nonexistent and your client is still owed the monies.

In addition, today many jurisdictions require court-ordered mediation in postdissolution proceedings that only result in additional fees to your client and more unbillable hours to your ledger. Most family practitioners have used qualified domestic relations orders (QDRO) to award one spouse a portion of the other spouse's retirement benefits because retirement plans are considered marital property and, typically, the largest marital asset. However, a QDRO can also be used to retrieve all or a portion of the child support arrearages from the husband's 401(k) plan.

You may have a client similar to an individual we will call "Mary" to protect her privacy. Like many other divorced spouses across the country, Mary had not received child support in several years, in this case over 10 years, on behalf of her four children. Mary recently received a judgment against her ex-husband that determined and specifically set out the amount that was owed, $160,000, which included actual payments missed, along with statutory interest.

Mary's attorney contacted our firm to discuss her problem. Our conversation revealed that one alternative that had been overlooked was the use of a QDRO to retrieve all or a portion of the child support arrearages from the former husband's 401(k) plan.

While QDROs are used to award one spouse a portion of the other spouse's retirement benefits, they can also be used to tap into a retirement plan to pay off child support arrearages.

A QDRO is a separate court order directed to the retirement plan instructing the plan administrator to pay a portion of the employee/ participant spouse's account, or benefits, in the retirement plan to the other nonparticipant spouse. Division of pensions, whether it is for property division, child support, or alimony, is not a decision to be made by the employee/participant spouse with the pension, but a matter of state and federal law.

Mary's attorney was under the mistaken impression that the retirement plan in which Mary's ex-husband participated was...