SUGGESTED “QDRO” LANGUAGE FOR DIVORCE JUDGMENTS
(Does not address the actual division of the Plan, which should be determined on a case by case basis, e.g., to use coverture fraction or if using more simple date(s) of division will adequately protect the parties, etc.)
IT IS HEREBY ORDERED AND ADJUDGED that each party's employment pension or other defined benefit plans, defined contribution plans, deferred compensation plans, or other retirement benefits or accounts, as accumulated during the course of the parties' marriage, shall be divided equally (or other) between the parties, per Domestic Relations Orders and/or other documents (Judgments, other Court Orders, Letters of Instruction/Acceptance, Plan internal forms, etc., as indicated by the retirement plan) to be filed with the Court, and/or otherwise prepared and filed with the appropriate institution or agency. (It is advisable to specifically identify the plans to be divided, by name (e.g., specific name of pension; 401K through X employer), contract or account number, currently held with Y investment fund, etc.)
(Set forth division amount/method)
IT IS HEREBY ORDERED that the amount assigned to Plaintiff/Defendant (specify) shall be/shall not be (specify) adjusted for investment interest, gains and losses from the plan division date of ______ through the date the Plaintiff’s/Defendant’s (specify) share of the plan funds are segregated in her/his name and thereafter if applicable. (defined contribution plans only)
IT IS HEREBY ORDERED that any loans outstanding from the plan shall/shall not (specify) be included in the plan balance to be divided. (defined contribution plans only)
IT IS HEREBY ORDERED that Plaintiff and Defendant receive the same or as practically possible the same benefit components pursuant to the DRO or other Court Order to be entered, to the extent permitted by the Plan or Fund to be divided, such as but not limited to, pre-retirement and post-retirement increases, temporary increases, interim supplements and COLA increases, in proportion to his/her share of the benefits, as set forth in MCL 552.101 and otherwise, unless specifically excluded in this section. (But, see final sample paragraph). (generally, defined benefit (pension) plans only)
IT IS HEREBY ORDERED that Plaintiff/Defendant (specify) is specifically awarded the right to be designated, and is to be designated, as the pre-retirement and/or post-retirement surviving spouse for the full/marital share (specify) of surviving spouse benefits under the Plan and per the Court Order to be entered. (generally, defined benefit (pension) plans only)
IT IS HEREBY FURTHER ORDERED that Plaintiff/Defendant (specify) shall have the right per the Court Order to be entered, and to the extent permitted by the Plan or Fund to be divided, to choose a benefit payment based on his/her (specify) own lifetime,* the option to receive benefits when the Plan or Fund Participant reaches earliest retirement age,* regardless of actually retiring, and to choose any other benefit payment option available under the Plan or Fund, providing it does not adversely affect the Participant’s residual share. (generally, defined benefit (pension) plans only)
* not available under federal or military pensions
IT IS HEREBY FURTHER ORDERED that Plaintiff/Defendant (specify) shall be entitled, to the extent permitted by the Plan, to designate a beneficiary on his/her (specify) share of the Plan benefits in the event of his/her (specify) death.
IT IS HEREBY FURTHER ORDERED that Plaintiff/Defendant (specify) is not entitled to any refund of employee contributions from the Plan, unless both parties agree to such refund, and in that event, Plaintiff/Defendant (specify) shall be entitled to a refund as well, in proportion to his/her (specify) share of the Plan as set forth above.
(generally, defined benefit (pension) plans only)
IT IS HEREBY FURTHER ORDERED that the cost of preparing the Court Order(s) dividing the retirement plan(s) as specified herein shall be paid by _____, (or) shall be paid shared equally by both parties.
IT IS HEREBY ORDERED AND ADJUDGED that should the retirement Plan(s) charge any administrative or other costs for implementing the terms of the Order dividing the Plan, Plaintiff and Defendant shall share such costs equally.
[Consider per 2006 statutory amendment MCL 552.101 (5)]:
IT IS HEREBY ORDERED AND ADJUDGED that this (or foregoing) section applies only to the regular retirement portion of any pensions/defined benefit plans, and not to any disability portion of a pension, or disability pension, which are excluded from this section. [Consider referring to any other plans or plan components to be excluded; e.g., early retirement subsidy(ies)