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A Forgotten QDRO – Can One Still Be Obtained?

MCMURRAY V. MCMURRAY, 2023-NCCOA-______ (2023) (unpublished)

As a new generation of divorcees begin to reach retirement age since the enactment of ERISA in 1974, we will begin to see cases were a party needs a Qualified Domestic Relations Order (QDRO) to receive a retirement benefit, but somewhere in the divorce process the QDRO was never entered. Below is one such case.

  • Facts: Husband and Wife married in 1982 and separated in 2003. Husband worked at IBM from 1982 to his retirement in 2021. In August of 2003, the parties entered into a separation agreement wherein the marital share of husband’s IBM pension would be divided by a QDRO “on or before the absolute divorce is final.” The parties subsequently divorced in 2005. No QDRO was ever entered. While traditionally the party receiving the benefit drafts the QDRO and seeks its entry, this separation agreement was silent on which party had the responsibility for doing so. On 11 February 2021, Wife sought entry of a QDRO and submitted a draft for pre-approval with IBM. Husband retired on 15 February 2021. IBM informed wife that husband began collecting his pension, but that IBM was holding 50% in the event the QDRO was submitted. Husband brought suit seeking declaratory relief upon the claim that Wife had no interest in the IBM pension and claiming breach of contract due to the fact that wife did not get a QDRO before the divorce was final.[1] After a hearing, the trial court ruled that Wife did not breach the contract, the divorce was not a condition precedent for a 50% interest in the pension, Wife did not waive her interest in the pension, and that Wife may obtain a QDRO to receive her 50% interest. Husband appealed.


  • Issue: Did the trial court err by allowing wife to get a QDRO for her 50% interest in husband’s IBM pension?


  • Holding:


  • Rationale: First, Husband argued that he had no burden to prepare a QDRO because Wife was the sole beneficiary. While Wife is the sole beneficiary of the QDRO, both parties benefit from the separation agreement, and cooperation is required for the entry and drafting of a QDRO. Absent an express provision assigning the duty to prepare a QDRO to one party, both parties will share that burden. Next, Husband argued that Wife waived her right to the 50% interest. However, a party cannot waive a right before they are in a position to assert it. Since Wife was unable to assert her right because Husband was not cooperating in the preparation of a QDRO, Wife did not waive her right to her 50% interest in the IBM pension. Finally, Husband argued that the divorce finalization provision in the separation agreement was a deadline for the entry of a QDRO. However, the Court sided with the trial court, and found that the heart of the agreement was to resolve the marital claims arising from separation, and not to set a hard deadline for the entry of a QDRO. Again, because Husband refused to cooperate with the preparation—and both parties here shared a burden to prepare a QDRO—the Court held that Wife was prevented from preparing a QDRO before the date of divorce.[2]


Notes:  QDROs and timing are often final steps in resolving marital property division. It is important to ensure that the QDRO is not only entered but also submitted to the plan administrator and that the division of the retirement benefit is completed with some confirmation. If you have any questions about a QDRO, please speak to one of the family law specialists at Woodruff Family Law Group.

[1] There was an attorney fee issue as well, but that will not be discussed here.

[2] Husband, on appeal, raised a statute of limitation defense. But since he raises it for the first time on appeal, it was not preserved and deemed not properly before the appellate court.