Dividing the retirement accounts.
A decree divides nothing on its own. What a QDRO is, why an IRA is not one, the eighteen-month clock that quietly ends the argument, and the military and federal-pension rules that work differently again.
Every answer below is read off a statute, a regulation, or the agency’s own publication, and linked to it. Where the operative words exist we quote them rather than paraphrase, because on this subject the paraphrase is usually what is wrong. Where we could not confirm something, the page says so instead of filling the gap.
The questions, answered
What is a QDRO, and what must a court order contain to be one?
A QDRO is a court order that a retirement plan has accepted. Federal law normally forbids a pension plan from paying anyone but the worker. A qualified domestic relations order is the single carved-out exception: it is a judgment, decree or order made under state (or tribal) domestic relations law that gives a spouse, former spouse, child or other dependent — called the alternate payee — the right to receive some or all of the worker's plan benefits. Two things make it "qualified." It must clearly say four things: the name and last known mailing address of the worker and of each alternate payee, the amount or percentage each alternate payee gets (or how to work it out), how many payments or what period it covers, and each plan it applies to. And it must not do three things: it cannot make the plan create a benefit or option the plan does not already offer, it cannot make the plan pay out more in actuarial value than it otherwise would, and it cannot hand an alternate payee money already promised to a different alternate payee under an earlier qualified order. A QDRO does not have to be a separate document; it can be part of the divorce decree itself. But the plan administrator, not the judge, decides whether it qualifies.
The four things the order must spell out are at 29 U.S.C. s. 1056(d)(3)(C): "A domestic relations order meets the requirements of this subparagraph only if such order clearly specifies— (i) the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order, (ii) the amount or percentage of the participant's benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined, (iii) the number of payments or period to which such order applies, and (iv) each plan to which such order applies." The three things it must not do are at s. 1056(d)(3)(D): "A domestic relations order meets the requirements of this subparagraph only if such order— (i) does not require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan, (ii) does not require the plan to provide increased benefits (determined on the basis of actuarial value), and (iii) does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order." The same wording appears in the tax code at I.R.C. s. 414(p)(2) and s. 414(p)(3) (https://www.govinfo.gov/content/pkg/USCODE-2024-title26/html/USCODE-2024-title26-subtitleA-chap1-subchapD-partI-subpartB-sec414.htm). The underlying ban that a QDRO lifts is at 29 U.S.C. s. 1056(d)(1): "Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated." The Labor Department's own guide adds that the order need not be a separate paper: "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" (Question 1-7), and that "the administrator of the retirement plan that provides the benefits affected by an order is the individual (or entity) initially responsible for determining whether a domestic relations order is a QDRO" (Question 1-13), at https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/publications/qdros-chapter-1 . Congress broadened the definition to cover tribal courts as well as state courts; the statute now reads "is made pursuant to a State or Tribal domestic relations law (including a community property law)."
Which retirement plans can a QDRO actually divide, and which ones can it not?
The QDRO machinery lives in ERISA, and ERISA does not cover everything. It covers private employer retirement plans — 401(k)s, pensions, profit-sharing plans, most 403(b) annuities. It does not cover government plans (federal, state, county, city, school district, or the military), and it does not cover church plans that have not chosen to opt in. ERISA also does not treat an ordinary IRA as an employer plan at all. So handing a QDRO to a state teachers' retirement system, to the federal Office of Personnel Management, to a military pay center, or to an IRA custodian does not do what people expect. Each of those has its own rulebook and its own form of order. There is one narrow bridge: for tax purposes only, a payment out of a government plan, a church plan or a state or local 457(b) deferred compensation plan is treated as if it came from a QDRO if the order meets the basic definition. That protects the tax result; it does not oblige the plan to obey the order.
The tax-side bridge is I.R.C. s. 414(p)(11): "For purposes of this title, a distribution or payment from a governmental plan (as defined in subsection (d)) or a church plan (as described in subsection (e)) or an eligible deferred compensation plan (within the meaning of section 457(b)) shall be treated as made pursuant to a qualified domestic relations order if it is made pursuant to a domestic relations order which meets the requirement of clause (i) of paragraph (1)(A)." Read at https://www.govinfo.gov/content/pkg/USCODE-2024-title26/html/USCODE-2024-title26-subtitleA-chap1-subchapD-partI-subpartB-sec414.htm . On IRAs, the Labor Department's regulation says the terms "employee pension benefit plan" and "pension plan" "shall not include an individual retirement account described in section 408(a) of the Code, an individual retirement annuity described in section 408(b) of the Internal Revenue Code of 1954 … and an individual retirement bond described in section 409 of the Code" where the listed conditions are met (29 C.F.R. s. 2510.3-2(d)(1), https://www.ecfr.gov/current/title-29/section-2510.3-2 ). The Office of Personnel Management puts the federal point bluntly in its own booklet: "the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS) are governmental plans and are exempt from ERISA" and "Court orders used to divide private sector pension plans, called Qualified Domestic Relations Orders or 'QUADROS,' may not be valid under FERS or CSRS" (Court-Ordered Benefits for Former Spouses, RI 84-1, revised July 2014, page 2, https://www.opm.gov/retirement-center/publications-forms/pamphlets/ri84-1.pdf ).
How is an IRA divided, and what is the trap?
An IRA is not divided by a QDRO. It is divided by the divorce decree or by a written instrument tied to the decree, and then moved by the custodian. Done that way, the move is not a taxable event at all — the piece that goes across simply becomes the receiving spouse's own IRA from the date of the transfer. The trap is the shortcut. If the account holder instead withdraws the money and writes a check to the ex-spouse, that withdrawal is a distribution to the account holder. It goes on the account holder's tax return as income, and if the account holder is under 59 and a half it can also carry the 10 percent early distribution tax. The QDRO exception to that 10 percent tax does not apply to IRAs — the tax code says so in as many words. The safe route is to have the custodian move the assets directly, either by changing the name on the account or by a trustee-to-trustee transfer into an IRA in the other spouse's name. Get the decree language right first; the custodian will ask for it.
The IRS says the same thing in plain words in Publication 504, Divorced or Separated Individuals (2025): "The transfer of all or part of your interest in an IRA to your spouse or former spouse, under a decree of divorce or separate maintenance or a written instrument incident to the decree, isn't considered a taxable transfer. Starting from the date of the transfer, the IRA interest transferred is treated as your spouse's or former spouse's IRA." (https://www.irs.gov/publications/p504). Publication 590-A names the two safe mechanics: "There are two commonly used methods of transferring IRA assets to a spouse or former spouse. The methods are: Changing the name on the IRA, and Making a direct transfer of IRA assets." It describes the direct transfer this way: "Under this method, you direct the trustee of the traditional IRA to transfer the affected assets directly to the trustee of a new or existing traditional IRA set up in the name of your spouse or former spouse." (https://www.irs.gov/publications/p590a). Why the shortcut costs money: I.R.C. s. 408(d)(1) provides that "any amount paid or distributed out of an individual retirement plan shall be included in gross income by the payee or distributee, as the case may be, in the manner provided under section 72," and I.R.C. s. 72(t)(3)(A) provides that "Subparagraphs (A)(v) and (C) of paragraph (2) shall not apply to distributions from an individual retirement plan" — subparagraph (C) being the QDRO exception to the 10 percent early distribution tax. So the QDRO escape hatch that exists for a 401(k) simply is not there for an IRA.
Who pays the tax, and does the 10 percent early withdrawal penalty apply?
Two separate rules do the work. First, moving property between spouses or former spouses because of a divorce produces no taxable gain or loss — that is section 1041, and it is why splitting the assets themselves does not trigger a tax bill. Second, once money actually comes out of an employer retirement plan under a QDRO and goes to a spouse or former spouse, that money is generally taxable income to the person who receives it, not to the worker. If it goes to a child or other dependent instead, it is taxed to the worker. As for the 10 percent extra tax on taking money out before age 59 and a half, there is an express exception for a distribution made to an alternate payee under a QDRO. That exception is one of the few genuinely useful things a QDRO can do: an ex-spouse who needs cash can take a plan distribution under the order without the 10 percent surcharge, though ordinary income tax still applies. Rolling the money into an IRA instead keeps it tax-deferred — but once it is in an IRA, the 10 percent exception is gone for good.
On the property transfer itself, I.R.C. s. 1041(a) reads: "No gain or loss shall be recognized on a transfer of property from an individual to (or in trust for the benefit of)— (1) a spouse, or (2) a former spouse, but only if the transfer is incident to the divorce." Section 1041(c) defines incident to divorce: "a transfer of property is incident to the divorce if such transfer— (1) occurs within 1 year after the date on which the marriage ceases, or (2) is related to the cessation of the marriage." Read at https://www.govinfo.gov/content/pkg/USCODE-2024-title26/html/USCODE-2024-title26-subtitleA-chap1-subchapO-partIII-sec1041.htm . On who pays the income tax, IRS Publication 504 says: "Benefits paid under a QDRO to the plan participant's spouse or former spouse must generally be included in the spouse's or former spouse's income," and "Benefits paid under a QDRO to the plan participant's child or other dependent are treated as paid to the participant" (https://www.irs.gov/publications/p504). The IRS restates the penalty exception in Topic no. 558, in a list headed "The exceptions below apply to distributions from a qualified plan other than an IRA": "Distributions made to an alternate payee who is the spouse or former spouse of the participant pursuant to a qualified domestic relations order." (https://www.irs.gov/taxtopics/tc558). Publication 504 also notes the rollover option: "If you receive an eligible rollover distribution under a QDRO as the plan participant's spouse or former spouse, you may be able to roll it over tax free into an individual retirement arrangement (IRA) or another qualified retirement plan."
What happens if the order is never entered, or is entered but never qualified?
Nothing happens — and that is the danger. A plan is forbidden to pay a former spouse on the strength of a divorce decree alone. Until the plan administrator has an order in hand and has decided it qualifies, the worker keeps the whole benefit and can, in many plans, spend it, borrow against it, roll it over or name someone else. Late is not automatically fatal: federal regulation says an order does not stop being a QDRO just because of when it was issued, and gives the example of an order submitted after the worker has already died. But there is a hard clock once an order does arrive. While the administrator is deciding, it must set aside the money the alternate payee would get. That protection lasts at most 18 months, counted from the first date a payment would have been due under the order after the plan received it. If the order is rejected inside those 18 months, or the question is simply still unresolved when they run out, the administrator must release the set-aside money to whoever would have got it if there had been no order — usually the worker. A later ruling that the order does qualify only works going forward. The money already released is gone.
The statute defines the clock at s. 1056(d)(3)(H)(v): "the 18-month period described in this clause is the 18-month period beginning with the date on which the first payment would be required to be made under the domestic relations order," and at (H)(iv): "Any determination that an order is a qualified domestic relations order which is made after the close of the 18-month period described in clause (v) shall be applied prospectively only." The Labor Department explains the same rule in its own words and adds a reading that helps the alternate payee: "It is the view of the Department that, in order to ensure the availability of a full 18-month protection period, the 18 months cannot begin before the plan receives a domestic relations order. Rather, the '18-month period' will begin on the first date on which a payment would be required to be made under an order following receipt by the plan." (Question 2-11, https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/publications/qdros-chapter-2). On the plan's duty before then, Question 2-12 says "during the determination period, the administrator, as a plan fiduciary, may not permit distributions to the participant or any other person of any amounts that would be payable to the alternate payee if the domestic relations order were determined to be a QDRO." On why a decree alone does nothing, Question 1-2 says "retirement plans are neither permitted nor required to follow the terms of domestic relations orders purporting to assign retirement benefits unless they are QDROs" (https://www.dol.gov/agencies/ebsa/about-ebsa/our-activities/resource-center/publications/qdros-chapter-1). On lateness, 29 C.F.R. s. 2530.206(c)(1) says "a domestic relations order shall not fail to be treated as a qualified domestic relations order solely because of the time at which it is issued," and the first example reads: "The second order does not fail to be treated as a QDRO solely because it is issued after the death of the Participant. The result would be the same even if no order had been issued before the Participant's death, in other words, the order issued after death were the only order." (https://www.ecfr.gov/current/title-29/section-2530.206). Note the limit in s. 2530.206(d)(1): a late order still has to satisfy every ordinary QDRO requirement, and the regulation's own example shows one failing because the plan did not offer the payment form the order demanded.
How is military retired pay divided, and what is the 10/10 rule really?
Military retired pay is governed by its own statute, not by ERISA. That statute lets a state court treat disposable retired pay as marital property under its own law. Disposable retired pay is the total monthly retired pay minus a short list of deductions — debts owed back to the United States, court-martial forfeitures, pay waived to receive VA compensation, the portion attributable to a disability retirement, and the premium for a survivor annuity being paid to that same former spouse. What the pay center will actually mail is limited. It will send money straight to a former spouse only if the marriage overlapped at least 10 years of creditable service — the so-called 10/10 rule. That rule decides who writes the check, not who owns the money. A court can still award a share of retired pay after a shorter marriage; the former spouse simply has to collect from the retiree instead of from the government. The 10/10 limit also does not touch child support or alimony, which the pay center can pay regardless. Separately, no more than 50 percent of disposable retired pay can go out under all property-division court orders combined. Since a 2016 change, if the divorce becomes final before the member retires, the share is calculated on the member's pay grade and years of service as of the date of the decree, plus cost-of-living increases — not on the higher pay the member earns later.
Disposable retired pay is defined at 10 U.S.C. s. 1408(a)(4)(A): "The term 'disposable retired pay' means the total monthly retired pay to which a member is entitled less amounts which— (i) are owed by that member to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay; (ii) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38; (iii) in the case of a member entitled to retired pay under chapter 61 of this title, are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member's disability on the date when the member was retired (or the date on which the member's name was placed on the temporary disability retired list); or (iv) are deducted because of an election under chapter 73 of this title to provide an annuity to a spouse or former spouse to whom payment of a portion of such member's retired pay is being made pursuant to a court order under this section." The direct payment rule is s. 1408(d)(1): "After effective service on the Secretary concerned of a court order providing for the payment of child support or alimony or, with respect to a division of property, specifically providing for the payment of an amount of the disposable retired pay from a member to the spouse or a former spouse of the member, the Secretary shall make payments (subject to the limitations of this section) from the disposable retired pay of the member to the spouse or former spouse … In the case of a member entitled to receive retired pay on the date of the effective service of the court order, such payments shall begin not later than 90 days after the date of effective service." What the 10/10 rule does NOT decide is set by s. 1408(c)(1): "Subject to the limitations of this section, a court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court." Note also that the 10-year bar in s. 1408(d)(2) is written to apply only to amounts "resulting from the treatment by the court under subsection (c) of disposable retired pay … as property" — that is, to property division, not to child support or alimony. The overall ceiling is s. 1408(e)(1): "The total amount of the disposable retired pay of a member payable under all court orders pursuant to subsection (c) may not exceed 50 percent of such disposable retired pay." The frozen benefit rule is confirmed. It is s. 1408(a)(4)(B): "For purposes of subparagraph (A), in the case of a division of property as part of a final decree of divorce, dissolution, annulment, or legal separation that becomes final prior to the date of a member's retirement, the total monthly retired pay to which the member is entitled shall be— (i) in the case of a member not described in clause (ii), the amount of retired pay to which the member would have been entitled using the member's retired pay base and years of service on the date of the decree of divorce, dissolution, annulment, or legal separation, as computed under section 1406 or 1407 of this title, whichever is applicable, increased by the sum of the cost-of-living adjustments" that would have occurred between the decree and retirement and that occur after retirement. It was added by section 641(a) of the National Defense Authorization Act for Fiscal Year 2017, Public Law 114-328 (Dec. 23, 2016), and amended by section 624(a) of Public Law 115-91 (Dec. 12, 2017). Public Law 114-328 section 641(b) provides that the amendments "shall apply with respect to any division of property as part of a final decree of divorce, dissolution, annulment, or legal separation involving a member of the Armed Forces" that "becomes final after December 23, 2016." We could not read the Defense Finance and Accounting Service's own pages on any of this — dfas.mil refused our requests — so everything here is taken from the statute itself as published by the Government Publishing Office.
Who keeps military health care after a divorce — the 20/20/20 and 20/20/15 rules?
An unremarried former spouse keeps military health coverage in their own right only if three counts all reach 20: at least 20 years of marriage, at least 20 years of the member's creditable service, and at least 20 years of overlap between the two. That is the 20/20/20 rule, and it gives coverage that continues indefinitely. If the overlap is at least 15 years but under 20, with 20 years of marriage and 20 years of service, that is the 20/20/15 rule, and for any divorce final on or after 1 April 1985 the coverage lasts one year from the date of the decree and then stops. Both rules carry conditions that can end coverage at any time: the former spouse must stay unremarried and must not be covered by an employer-sponsored health plan. Losing this coverage is not something a divorce court can fix; the counts are set by federal statute.
The 20/20/15 rule is 10 U.S.C. s. 1072(2)(G), covering an unremarried former spouse of a member with at least 20 years of creditable service who, at a decree dated before 1 April 1985, had been married at least 20 years "at least 15 of which, but less than 20 of which, were during the period the member or former member performed service creditable in determining the member or former member's eligibility for retired or retainer pay," and who "does not have medical coverage under an employer-sponsored health plan." Section 1072(2)(H) extends the same treatment to a decree dated on or after 1 April 1985, "except that the term does not include the person after the end of the one-year period beginning on the date of that final decree." The Defense Department's own regulation restates it. Under 32 C.F.R. s. 199.3(b)(2)(i), a former spouse "Must be unremarried; and" "Must not be covered by an employer-sponsored health plan; and" "Must have been married to a member or former member who performed at least 20 years of service which can be credited in determining the member's or former member's eligibility for retired or retainer pay; and" must not be Medicare Part A eligible except as provided there, and must not be the dependent of a NATO member. Paragraph (b)(2)(i)(F)(1) then states: "The former spouse must have been married to the same member or former member for at least 20 years, at least 20 of which were creditable in determining the member's or former member's eligibility for retired or retainer pay. Eligibility continues indefinitely unless affected by any of the conditions of paragraphs (b)(2)(i)(A) through (b)(2)(i)(E) of this section." Paragraph (F)(2) states: "The former spouse must have been married to the same member or former member for at least 20 years, and at least 15, but less than 20 of those married years were creditable in determining the member's or former member's eligibility for retired or retainer pay," and (F)(2)(iii) adds: "If the date of the final decree of divorce, dissolution, or annulment is on or after September 29, 1988, the former spouse is eligible only for care received within the 365 days (366 days in the case of a leap year) immediately following the date of the divorce, dissolution, or annulment." Read at https://www.ecfr.gov/current/title-32/section-199.3 . We could not read the TRICARE website's own former-spouse page — it would not serve its content to us — so we have quoted the statute and the Defense Department regulation instead.
How is a CSRS or FERS pension divided, and what does OPM demand of the order?
A federal civilian pension is divided by a court order acceptable for processing, sometimes called a COAP. It is not a QDRO, and handing the Office of Personnel Management a QDRO can fail outright. OPM's regulations say that an order labeled a qualified domestic relations order, or written on an ERISA QDRO form, is not acceptable unless it expressly says that its provisions about CSRS or FERS benefits are governed by part 838 of title 5 of the Code of Federal Regulations. Beyond that, the order has to expressly divide the annuity, naming the retirement system and stating that the former spouse is entitled to a share; it has to be computable by OPM from the words of the order and OPM's own files alone, with no need to consult a state statute or another case; and OPM strongly prefers that it expressly direct OPM to pay the former spouse directly. An order that merely tells the retiree to pay the ex-spouse will not be processed. A survivor annuity is a separate award and has to be expressly stated as one.
OPM says the same thing to the public in its own booklet, Court-Ordered Benefits for Former Spouses (RI 84-1, revised July 2014): "The court order must expressly direct OPM to pay a portion of the monthly CSRS or FERS benefits. The spouse's share must be stated as a fixed amount, a percentage or a fraction of the annuity, or by a formula whose value is readily apparent from the face of the order and information in our files. The amount cannot exceed the amount payable to the retiree after deductions for taxes and insurance." (page 4, https://www.opm.gov/retirement-center/publications-forms/pamphlets/ri84-1.pdf). The regulation adds the pieces: 5 C.F.R. s. 838.303(a) — "A court order directed at employee annuity is not a court order acceptable for processing unless it expressly divides the employee annuity as provided in paragraph (b) of this section"; s. 838.304(c) — "a court order directed at employee annuity that instructs the retiree to pay a portion of the employee annuity to the former spouse is not a court order acceptable for processing"; s. 838.304(d) — "OPM strongly recommends that any court order directed at employee annuity expressly direct OPM to pay the former spouse directly"; and s. 838.305(a) — the order must provide "sufficient instructions and information that OPM can compute the amount of the former spouse's monthly benefit using only the express language of the court order, subparts A, B, and F of this part, and information from normal OPM files." OPM's booklet also warns about a difference from private plans: "court orders cannot affect a retirement benefit until the benefit is actually payable to the former Federal employee. This means the employee must be eligible for the benefit and must have made a proper application for" it — so unlike an ERISA plan, a federal former spouse cannot start collecting while the employee is still working.
Why can a death wipe out a retirement award, and what does a survivor election do?
Because most retirement awards are a share of the worker's own payments, and those payments stop when the worker dies. A survivor benefit is a separate thing, and it has to be separately claimed. In a private plan, divorce itself strips the ex-spouse of the survivor protections federal law gives to a spouse; if the worker remarries, the new spouse can pick them up. Only a QDRO that expressly requires the former spouse to be treated as the surviving spouse changes that result — and where it does, a later spouse gets nothing. For a federal civilian pension, payments to the former spouse end with the retiree's death unless the retiree elected, or the order provided for, a survivor annuity. For military retired pay, a former spouse's share ends at the death of either party, and the Survivor Benefit Plan is the only way to carry an income past the member's death — the member must elect former spouse coverage within a year of the decree, or the former spouse must ask the service to treat the election as made, and that request has its own one-year deadline. Miss it and there is no second chance.
The same answer adds: "Generally, however, the only way to establish a former spouse's right to survivor benefits such as a QJSA or QPSA is through a QDRO," and warns that "some retirement plans provide that a spouse of a participant will not be treated as married unless he or she has been married to the participant for at least a year. If the retirement plan to which the QDRO relates contains such a one-year marriage requirement, then the QDRO cannot treat the alternate payee as a surviving spouse if the marriage lasted for less than one year." The statutory hook is 29 U.S.C. s. 1056(d)(3)(F): "To the extent provided in any qualified domestic relations order— (i) the former spouse of a participant shall be treated as a surviving spouse of such participant for purposes of section 1055 of this title (and any spouse of the participant shall not be treated as a spouse of the participant for such purposes), and (ii) if married for at least 1 year, the surviving former spouse shall be treated as meeting the requirements of section 1055(f) of this title." For federal civilian pensions, OPM says: "Payments to a former spouse from a retiree's annuity end with the retiree's death. For the former spouse to receive payments after the retiree's death, the retiree must elect, or the court order must provide for, a survivor annuity." It adds that "A court-ordered survivor annuity is not available unless the marriage lasted at least 9 months," that such an annuity "ends if the former spouse remarries before age 55, unless the employee and the former spouse were married for 30 years or longer," and that "in general court orders cannot be modified to affect survivor benefits after the employee retires or dies after retiring" (RI 84-1, pages 4-6, https://www.opm.gov/retirement-center/publications-forms/pamphlets/ri84-1.pdf). For the military, 10 U.S.C. s. 1408(d)(4) provides that payments "shall terminate in accordance with the terms of the applicable court order, but not later than the date of the death of the member or the date of the death of the spouse or former spouse to whom payments are being made, whichever occurs first" (https://www.govinfo.gov/content/pkg/USCODE-2024-title10/html/USCODE-2024-title10-subtitleA-partII-chap71-sec1408.htm). The Survivor Benefit Plan election for a former spouse "must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce, dissolution, or annulment" (10 U.S.C. s. 1448(b)(3)(A)(iii), https://www.govinfo.gov/content/pkg/USCODE-2024-title10/html/USCODE-2024-title10-subtitleA-partII-chap73-subchapII-sec1448.htm), and if the member fails or refuses, 10 U.S.C. s. 1450(f)(3)(C) provides: "An election may not be deemed to have been made under subparagraph (A) in the case of any person unless the Secretary concerned receives a request from the former spouse of the person within one year of the date of the court order or filing involved." (https://www.govinfo.gov/content/pkg/USCODE-2024-title10/html/USCODE-2024-title10-subtitleA-partII-chap73-subchapII-sec1450.htm).
What does it cost to have one of these orders prepared?Partly confirmed
We could not confirm any cost figure from an official government source, so we are publishing none. The Labor Department, the IRS, the Office of Personnel Management and the Defense Department all explain what these orders must say; none of them states what a lawyer or a drafting service charges to write one, and prices are set by the private market rather than by any agency. There is one related cost that an official source does address, and it is worth knowing about: the Labor Department says a retirement plan may charge the expense of deciding whether an order qualifies against the worker's own account in a defined contribution plan such as a 401(k). It gives no dollar amount either. Ask the plan administrator in writing what it charges, and ask any drafter for a written quote before you engage them.
That Labor Department answer is about a fee the plan itself may charge for reviewing an order, not about what it costs to have the order drafted, and it names no amount. We searched the Labor Department's QDRO guide, the IRS publications on divorce and on retirement accounts, OPM's booklet and regulations on court-ordered federal benefits, and the military retired pay statute, and none of them states a preparation cost. A plan may also give you a template at no charge: the Labor Department says "plan administrators may develop and make available 'model' QDRO forms to assist in the preparation of a QDRO" and that "Such model forms may make it easier for the parties to prepare a QDRO and reduce the time and expenses associated with a plan administrator's determination of the qualified status of an order" (Question 2-7), and the guide reproduces sample language written by the Treasury Department and the IRS in its Appendix C. Asking the plan for its model order first is free and often saves a redraft.
What is published everywhere and is wrong
On every subject on this page the wrong version is more widely repeated than the right one. These are the ones worth knowing before somebody tells you otherwise.
It is not. A plan may not pay a former spouse on a decree alone. The Labor Department's guide states that "retirement plans are neither permitted nor required to follow the terms of domestic relations orders purporting to assign retirement benefits unless they are QDROs," and the plan administrator, not the judge, decides whether an order qualifies. Until that determination is made, the worker still controls the whole account.
You do not, and asking for one wastes money. An IRA is moved under the divorce or separation instrument itself, and the tax code says that transfer "is not to be considered a taxable transfer." The IRA custodian, not a QDRO, does the work — by changing the name on the account or by a direct trustee-to-trustee transfer.
A withdrawal is a distribution to the account holder and goes on the account holder's return as income. The QDRO exception to the 10 percent early distribution tax is expressly switched off for IRAs: "Subparagraphs (A)(v) and (C) of paragraph (2) shall not apply to distributions from an individual retirement plan."
It works for private employer plans covered by ERISA. Government plans and church plans that have not opted in are outside ERISA entirely. OPM says in its own booklet that CSRS and FERS "are governmental plans and are exempt from ERISA" and that orders labeled QDROs "may not be valid under FERS or CSRS." Its regulation goes further: an order on an ERISA QDRO form is not acceptable unless it expressly says it is governed by 5 C.F.R. part 838.
It means the pay center will not mail the property-division share directly unless the marriage overlapped 10 years of creditable service. The court's power to divide the pay is separate: "a court may treat disposable retired pay … either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court." After a shorter marriage the former spouse collects from the retiree instead. The 10-year limit also does not restrict child support or alimony.
Not for decrees that became final after 23 December 2016. The frozen benefit rule computes the divisible amount "using the member's retired pay base and years of service on the date of the decree of divorce, dissolution, annulment, or legal separation," increased only by cost-of-living adjustments.
Lateness alone does not disqualify an order, and one submitted even after the worker's death can still qualify. But once an order reaches the plan, the money it protects is held for at most 18 months from the first date a payment was due. If the order is rejected or unresolved when that runs out, the plan must release the money to whoever would have received it if there had been no order, and a later approval works only going forward.
Usually not. A share of the worker's own payments ends when those payments end. A survivor benefit has to be awarded separately and on time. Military payments terminate "not later than the date of the death of the member or the date of the death of the spouse or former spouse to whom payments are being made, whichever occurs first," and a Survivor Benefit Plan election or a deemed-election request must reach the service within one year. OPM says payments to a former spouse "end with the retiree's death" unless a survivor annuity was elected or ordered.
What we could not read
Some official sites refuse automated access. We do not defeat those, so where one blocked us we went to a different official source and said so:
Everything this page was read from
29 U.S.C. s. 1003 — Coverage (ERISA s. 4), including the governmental plan and church plan exceptions
26 U.S.C. s. 414 — Definitions and special rules, subsection (p), qualified domestic relations order defined
26 U.S.C. s. 408 — Individual retirement accounts, including (d)(6) transfer of account incident to divorce
26 U.S.C. s. 1041 — Transfers of property between spouses or incident to divorce
26 U.S.C. s. 72 — Annuities, subsection (t), 10-percent additional tax on early distributions
10 U.S.C. s. 1408 — Payment of retired or retainer pay in compliance with court orders (Uniformed Services Former Spouses' Protection Act)
10 U.S.C. s. 1072 — Definitions, including former spouse dependency at (2)(F), (G) and (H)
10 U.S.C. s. 1448 — Survivor Benefit Plan: application of Plan, including former spouse elections
10 U.S.C. s. 1450 — Survivor Benefit Plan: payment of annuity, including deemed former spouse elections
QDROs: The Division of Retirement Benefits Through Qualified Domestic Relations Orders
QDROs guide, Chapter 1 — Qualified Domestic Relations Orders: An Overview
QDROs guide, Chapter 2 — Determining Qualified Status and Paying Benefits
QDROs guide, Chapter 3 — Drafting QDROs
29 C.F.R. s. 2510.3-2 — Employee pension benefit plan, subsection (d) on individual retirement accounts
29 C.F.R. s. 2530.206 — Time and order of issuance of domestic relations orders
5 C.F.R. part 838 — Court orders affecting retirement benefits
32 C.F.R. s. 199.3 — Eligibility (CHAMPUS/TRICARE), including former spouse categories
Court-Ordered Benefits for Former Spouses (RI 84-1, revised July 2014)
Publication 504, Divorced or Separated Individuals (2025)
Publication 590-A, Contributions to Individual Retirement Arrangements (IRAs)
Topic no. 558, Additional tax on early distributions from retirement plans other than IRAs
The rest of the money
Alimony, child support and what the court itself charges — fifty states, every figure traced to its source.