Sample QDRO Language

A model QDRO is a fill-in order that a plan, or the company that keeps the plan's records, provides to the parties. It uses the plan's exact name, follows the plan's procedures and offers only the choices the plan can administer. The Department of Labor says plan administrators may give parties a model form to help prepare a QDRO, and it points to the IRS sample language as an example of what such a form can contain (DOL QDRO booklet, Q 2-7).

Whether you have to use the model is up to the plan's procedures. Fidelity's QDRO Center page, for example, says the parties may draft their own order instead. A model can save time. The plan writes it so the plan can process it, and that is a different goal from carrying out what the parties agreed to.

The plan administrator

Plans covered by the federal QDRO rules must have written procedures for deciding whether a domestic relations order is a QDRO (DOL QDRO booklet, Q 2-3). Ask the plan administrator for the QDRO procedures and any model order. The plan administrator is named in the Summary Plan Description. If you do not have the Summary Plan Description, the participant can request it from the employer's benefits office.

The recordkeeper's QDRO portal

Many company plans are run by a large recordkeeper, and some recordkeepers keep each plan's procedures and model order online. Fidelity's QDRO Center, for example, holds each plan's QDRO guidelines behind a free account and can generate an order from plan-specific questions. Each recordkeeper works a little differently. See the guides for Fidelity, Empower, Vanguard and Principal.

The IRS sample language (DOL Appendix C)

The Department of Labor publishes the IRS sample QDRO language, IRS Notice 97-11, as Appendix C of its QDRO booklet. The sample is a good place to see the parts a QDRO usually has. The IRS is clear about its limits: the sample language may be used but is not required, and drafters "will need to conform it to the terms of the retirement plan to which the QDRO applies." It is general language for qualified plans, not any plan's model order.

Yes, and the one that counts is the sample written for that 401(k) plan. A 401(k) plan has written QDRO procedures, and many also offer a model order, either from the employer or from the recordkeeper. A generic "sample QDRO for 401(k)" from the internet, or a model order from a different company's plan, may carry the wrong plan name, a valuation method the plan does not use, or a payment option the plan does not offer. The plan reviews the order against its own procedures, so a sample from somewhere else does not carry over.

A sample QDRO for a defined benefit pension is a different document. A pension needs language suited to that pension. Check its procedures and the agreement for survivor, early retirement and payment start terms, which a 401(k) sample does not cover. For more on dividing a 401(k), see how to divide a 401(k) in divorce. For pensions, see the pension division guide.

A model order reflects what the plan can administer. The settlement decides what the alternate payee was promised. When nobody checks one against the other, the order the plan accepts can give the alternate payee less than the agreement did. Points to check:

• Vested balance only. A model order may divide only the vested part of the account. Check how the model treats unvested money against what the agreement says.
• Gains and losses left out. A model order may treat investment earnings as a choice to make. Check that the order carries the agreement's terms on gains and losses from the valuation date to the date the account is split. See gains and losses in a QDRO.
• No survivor protection. On a pension, a model order may not include survivor coverage. Check the agreement's survivor terms against the plan's procedures.
• The wrong valuation date. A model may use a date that does not match the agreement. Check the date in the order against the date in the settlement. See valuation date vs segregation date.
• Loans. Plans treat an outstanding loan differently. Check whether the model counts the loan in the balance being divided, and whether that matches the agreement.

1. The plan name. Does the sample use the plan's exact legal name, as it appears in the Summary Plan Description? A close name is not the same plan.
2. The plan type. Is it a defined contribution sample (401(k), 403(b), profit-sharing) or a defined benefit pension sample? They are not interchangeable.
3. The source. Did it come from this plan's administrator or recordkeeper, or from another plan, another case or a website?
4. The version. Is it the current procedures and model? Plans and recordkeepers update them, and an old version can be rejected.
5. The settlement. Does each choice in the sample match the agreement: the amount or percentage, the date, gains and losses, loans and survivor benefits?

A "QDRO form" for a state, if your state has one, is a court form, not the plan's form. The plan decides whether the order qualifies and judges it by its own procedures and federal law, so an order can satisfy a state form and still be rejected. If an order has already come back from the plan, see why QDROs get rejected.

A search for a plan name plus "QDRO sample language" often comes up empty or lands on a page about some other plan, because many company plans keep their procedures off the open web. The direct route is the plan administrator. Ask for the plan's QDRO procedures and model order, and confirm the plan's exact legal name while you are at it. If the participant's statement shows a recordkeeper such as Fidelity, Empower, Vanguard or Principal, that company may hold the procedures for the plan.

We start with the plan, not a stock form. We get the plan's QDRO procedures and model order, check every choice in them against the settlement agreement, and draft an order that fits both the plan's rules and the parties' terms. Where the plan offers pre-approval, we submit the draft and handle any revisions the plan asks for, and we deliver the order with the plan's pre-approval letter or email. If the plan offers no pre-approval, we deliver the finished order. Counsel or the parties then take it to the court and send the signed, certified copy to the plan.

A standard QDRO is a $700 flat project fee, with the settlement-language review, plan pre-approval where offered, and revisions included. See the pricing page for the full list.

What is a model QDRO?

A fill-in order a plan or its recordkeeper provides. It is written so the plan can administer it, not around your settlement agreement. The plan's procedures say whether you must use it.

Can a plan's model QDRO hurt the alternate payee?

It can, if no one checks it against the settlement. A model order may divide only the vested balance, leave gains and losses out, skip survivor protection on a pension, or use a valuation date that does not match the agreement.

How do I get QDRO sample language for a specific plan?

Ask the plan administrator for the plan's QDRO procedures and any model order. The plan administrator is named in the Summary Plan Description. Plans covered by the federal QDRO rules must have written QDRO procedures.

Is a QDRO form PDF for my state the same as the plan's model?

No. A state form is about the court case. The plan reviews the order against its own procedures and federal law, and that review decides whether the order qualifies.