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Tapping an ex-spouse's retirement plan for child support

If you're not receiving the right amount of child support or alimony from your ex-spouse, you are not alone. Unfortunately, many New York residents have to encounter this wearisome and frustrating situation. There are some things you can do, though, to help ensure that you receive the agreed-upon support for yourself and your child.

One way of addressing this issue is to ask your attorney to draft a Qualified Domestic Relations Order, widely known as a QDRO. This document can be used in a divorce settlement when one spouse is entitled to part of the other spouse's retirement plan. The retirement plans that qualify for a QDRO generally have to be governed by the Employee Retirement Income Security Act, or ERISA.

ERISA-based retirement plans include 401(k)s and other pension plans. Individual retirement accounts, or IRAs, are not ERISA-based and thus are generally not addressed in a QDRO.

An ex-spouse's retirement account can also be tapped for spousal support and child support, and a QDRO can serve as an effective tool for people who want to receive those funds at once without entering into a drawn-out, post-divorce agreement. Of course, this route may not be appropriate for everyone, and it is best to speak with your attorney to decide what is right for your particular situation.

In other cases, it may be a good idea to place marital assets into a trust specifically designated for alimony and spousal maintenance. With this kind of trust, the funds paid by the payor spouse can be distributed accordingly to the payee spouse. The payee spouse also wouldn't have to worry about his or her ex's experiencing a financial crisis and not being able to make support payments. The money would already be housed in the trust.

For more on the factors judges consider in deciding child support and spousal maintenance issues, please visit our divorce website.

Source: Forbes, "How To Get Your Ex-Husband To Honor The Financial Terms Of Your Divorce Settlement," Jeff Landers, Feb. 19, 2014

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