Can a QDRO be written for a legal separation? The attorney I am thinking of retaining says it is for divorces only.
2 Answers from Attorneys
I beleive that the attorney is correct.
I respectfully disagree with my colleagues. I believe the confusion arises in the general belief that in divorce cases courts have the power to establish support and divide property while in legal separation cases the court only has the authority to determine support. While this is can be a general rule of thumb, in Illinois courts can divide property in legal separations with both parties consent. Further, there is nothing in ERISA or the Code that requires that a QDRO (that is, the provisions that create or recognize an alternate payee's interest in a participant's retirement benefits) be issued as a separate judgment, decree, or order. Accordingly, a QDRO may be included as part of a divorce decree or court-approved property settlement, or issued as a separate order, without affecting its qualified status. In short, the court has the authorty to order a QDRO with both parties consent in a legal separation. If you have any questions, feel free to contact me at [email protected] or at (773) 609-2889.