Misuse of a QDRO -  Not a Litigation Tool

Summary:  Beginning in about 2005, some QDRO specialists have been attempting to use a QDRO as a litigation tool by suggesting that a QDRO should be used to bind the former spouses together by the use of some type of a shared interest approach. Where each former spouse's rights are determined by which spouse dies first. And other factors, such as remarriage. And the suggestion that the plan participant give up the future right to use a joint and survivor annuity to allow the former spouse to benefit at the expense of a "new" spouse. Don't do that!  Instead, the QDRO should be written so that the former spouses are independent of each other..

Misuse of a QDRO - Don't Use It As a Litigation Tool

Beginning in about 2005, there has been a general trend by QDRO specialists to approach the QDRO process as an adversarial process, where the retirement asset is generally not fully divided and financial ties continue to bind both spouses.

For example, some QDRO specialists advise former spouses to structure a QDRO so that the retirement .benefits which go to each former spouse depend on factors such as which former spouse dies first. And, sometimes it is suggested that the employee spouse who is the plan participant should give up the right to include a "new" spouse in a joint and survivor annuity option, so that the former spouse gets greater retirement plan benefits at the expense of a "new" spouse.

In other words, if improperly done, some former spouses can have continuing competing interests. And more conflict.

The eventual effect of a QDRO which continues to bind the former spouses together is litigation and financial hardship. With few exceptions, it makes no senses. Only the litigation attorneys and certain QDRO specialists benefit.

A QDRO should never be the cause of litigation.  It should never be used to provide a continuing shared interest approach which binds former spouses together (with few exceptions.)

Instead, a QDRO should be used to fully divide marital property with a separate interest QDRO, similar to the division of the equity in a home.