Question:

If a QDRO has been signed with surviving spouse wording in it (referring to the ex-wife) what rights will my new wife have when I remarry? Does it open a door for my ex-wife to benefit from assets collected in my second marriage?

Answer:

I do not practice law in the State of Arizona and am basing my response on my understanding of Indiana law. 

Often in dissolution of marriage proceedings, the divorcing parties respective 401(k), IRA, Pension or other retirement plans are the largest divisible asset of the marital estate. It is quite common in Indiana to divide these qualified accounts in order to achieve an equitable division of the marital estate.  Due to penalties and heavy taxes associated with early withdrawal of 401(k) or other “qualified retirement plans,” persons receiving an interest in their former spouse's 401(k) or retirement plans nearly always elect to avoid the withdrawal penalties by making use of a “Qualified Domestic Relations Order” or more commonly known as, a “QDRO” (pronounced “Quah Droh”). 

The QDRO (or its step brother the “EDRO” which is used for some governmental employees) is a legal document used to transfer an interest in a qualified retirement plan to another qualified retirement plan. Because every QDRO is different from retirement plan to retirement plan, I cannot give you specific advice as to the ramifications for your specific plan. I would however suggest that you contact the plan administrator for your specific QDRO, as well as an attorney who specializes in domestic litigation.

Because QDRO plans are ripe with tax ramifications, it may additionally make sense to consult with a domestic litigation attorney who holds an LL.M. (Master of Laws) in Taxation, or a domestic litigation attorney who dedicates a significant portion of their practice to QDRO drafting and interpretation.

Jason P. Hopper is an Associate Attorney in the Indianapolis, Indiana office of Cordell & Cordell, P.C. where his primary practice is exclusively in the area of domestic relations. Mr. Hopper is licensed in the state of Indiana - All State and Appellate courts, US District Court Northern District Indiana, US District Court Southern District Indiana, US Bankruptcy Court Southern District Indiana.