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Your DRO is crucial and must be explicit

| Jul 13, 2016 | Property Division

When you have spent a life with someone, there may be many reasons why only one spouse has been accruing a substantial retirement plan and the other has not. Perhaps one of you stayed home to raise the children or took care of the house or even still, one spouse ran a family business while the other held down a nine to five job.

You may have verbally agreed that the retirement money set aside would cover both of you and may still agree to that in divorce. However, unless you have a court-issued Domestic Relations Order put into place at the conclusion of the divorce, the ex-spouse has no rights to the Retirement System benefits of the participating spouse.

Since the Retirement System benefits are not a private pension, they include membership rights exclusively for the contributing member. There exists no protections or statutory rights for the spouse of the participant. Moreover, because it is a government plan and not a private plan, it is not held to the provisions set about in the Retirement Equity Act of 1984, the Employee Retirement Income Security Act, or the Internal Revenue Code. Therefore, Qualified Domestic Relations Orders and DROs are two separate orders. Keep in mind that all of the protections provided to spouses are inapplicable when ERISA is not governing the plan.

If you need help ensuring that your future is well protected once you reach retirement age, you may want to talk to a divorce attorney in New York familiar with QDROs, DROs and retirement protections.