What is a Qualified Domestic Relations Order (QDRO), and what is the process for dividing a 401(k) or pension in a California divorce?

A Qualified Domestic Relations Order (QDRO) is a specific type of court order that directs a private retirement plan to pay a portion of a participant's benefits to their former spouse. In California, a QDRO is the required legal tool to divide a 401(k), pension, or similar plan in a divorce without incurring early withdrawal penalties or taxes. Here is the general process for dividing a retirement plan: Step 1: Join the Retirement Plan to the Divorce Case You must formally make the retirement plan a party to your divorce. To do this, file a Request for Joinder of Employee Benefit Plan (Form FL-370) and a Pleading on Joinder (Form FL-372) with the family court. You must then have the plan administrator formally served with these documents. This legally obligates the plan to follow court orders. Step 2: Gather Information and Determine the Division Contact the plan administrator to request their specific QDRO procedures, any model QDRO forms they provide, and account statements from the date of marriage to the date of separation. In your divorce judgment, you and your spouse must state how the community property portion of the plan will be divided, which is typically 50/50 for assets earned during the marriage. Step 3: Draft and Pre-Approve the QDRO An attorney or a specialized QDRO preparer will draft the order. It is critical to use the precise language required by the plan. To avoid rejection, you should submit the draft QDRO to the plan administrator for pre-approval before filing it with the court. This confirms the plan will accept the order once it is signed by a judge. Step 4: File the QDRO with the Court and Serve the Final Order After you and your spouse sign the finalized QDRO, file it with the court for a judge's signature. Once signed, obtain a court-certified copy. You must then formally serve this certified copy on the plan administrator, who will then implement the order and segregate the funds for the non-employee spouse. Important considerations: California is a community property state. This means retirement contributions and earnings acquired between the date of marriage and the date of separation are presumed to be owned equally by both spouses. Government and military retirement plans have their own specific division orders that are similar to, but legally distinct from, a QDRO. Note: Never attempt to divide a retirement plan by simply withdrawing funds and giving cash to your former spouse. This will likely trigger significant income taxes and early withdrawal penalties. A QDRO is the only proper way to execute the division. The process is technical, and mistakes can be very costly to correct. This is general information and does not constitute legal advice. For complex situations, consult with a qualified California attorney.