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Tom, bankruptcy is Federal. That's right in the constitution. The Federal Bankruptcy Code was amended in 2005 to make clear that a debtor's interest in a qualified retirement plan (401, 403, etc.) is excluded from the debtor's bankruptcy estate, and also rollovers from those plans that are in IRAs. Non-rollover IRAs are exempt up to $1.5 million, indexed annually, so a little more now.

If the DRO contains all the things that are needed for a QDRO, would additional information/language that does NOT impact the plan make the DRO not qualified? The issue I have with it is that the order would need to be very detailed and spell out exactly what applies to each plan. This percentage as of this date, etc. There can be no question as to how the order is to be applied to either plan. I think it can be done, but I would prefer one order per plan.

Consider also that bankruptcy exclusions and exemptions might not be the only kind of protection from creditors an inquirer desires. An inquirer might want her lawyer’s advice about other protections, and about before-bankruptcy and beyond-bankruptcy differences between an employment-based plan and an Individual Retirement Account.

The IRS issued Circular 230 to establish whether a taxpayer may rely on written advice for the purpose of avoiding certain tax penalties when the taxpayer takes a certain position position that the IRS ultimately determines is wrong. This sets the standard and framework for legal opinions in certain areas of tax practice. Check it out if you are interested in a deeper dive and can tolerate some fairly technical material. Otherwise, legal opinions are just opinions, all over the place in what they cover and how they are expressed. Sometimes the law and facts are such that a legal opinion gives a clear and definite statement without much explanation. A “reasoned opinion” usually includes a discussion of the law, as applied to the circumstances at hand and provides some conclusion that is not definite. A reason opinion may also include many assumptions that are not tested or verified. The opinion may include some measure of confidence about the conclusion, which reflects the uncertainty about the state of law, such as “more likely than not”. Some legal opinions are an exercise in the art of providing a legal opinion that says nothing that one can rely on. Opinions that a retirement plan is “qualified” tend to fall in this category — in my opinion. But such opinions often follow a certain convention that has a commonly understood meaning in the industry that is worthwhile for certain purposes, but not for establishing whether or not a plan is actually qualified.

If you click on the hyperlink above to read the statute, you’ll see that a domestic relation order (a subset of the defined term qualified domestic relation order) may “relate[] to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant[.]” But a lawyer drafting an order one hopes the retirement plan’s administrator will decide is a QDRO should read carefully the plan’s governing documents so that the order one proposes to a domestic-relations court meets all conditions of ERISA § 206(d)(3), including that the order “does not require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan[.]” For one example, an order that purports to direct an ERISA-governed individual-account (defined-contribution) retirement plan to pay an alternate payee an amount each month would not be a QDRO if the plan does not provide periodic payments. If a might-be alternate payee’s lawyer, paralegal, limited license legal technician, or other adviser lacks expertise about QDROs, that person might engage help from a lawyer or other practitioner who has the needed knowledge and skills.

it needs to include enough information that the plan can calculate the benefit. if it gives a formula, then the data for that formula needs to be clear. I don't think the plan administrator cares if 72 months is mentioned about the reason WHY. doesn't matter if 72 months that the marriage lasted or 72 months that spouse A had rainbow hair, or 72 months that spouse B was in grad school etc. whatever the parties decided and is the property agreement is what needs to be clear in the QDRO. If the dates of what those 72 months were is relevant, then including the specific start date and end date, those can be included as well.

Unsolicited commentary - so take with a grain of salt It sounds like you are not a lawyer, you are a paralegal who is drafting QDROs on your own? The questions you have been asking make it clear there is a ton you probably don't know, about family law, retirement plans, etc. A lot (most? all?) of these questions are ones your supervising attorney should be answering, or they should provide you training resources ( webinars, reference books, etc) that you can use to increase your knowledge.

QDROs can be done even if there wasn't a marriage. This might be helpful. https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/qdro-overview.pdf

QDROs are not required to have the date of marriage on them. So I would not use either. The plan administrator doesn't care how long the marriage lasted. They care about how clear the order is in describing the amount of benefit to be awarded to the alternate payee.

At least in tax-related areas of practice, which includes a fair amount of benefits work, for "formal" legal opinions there is a range of confidence levels (will, should, more likely than not, reasonable position, not frivolous...).

I think the IRS still takes the position that you have to have an employer in existence to maintain a plan.

IRC 414(p) defines QDROs. You should read the definition in subsection (p)(1).

Could be, but it might depend on the sponsor's structure and (of course) the plan document. I've seen many documents that automatically terminate a plan if the sponsor is dissolved and/or bankrupt.

I think under the SECURE 2.0 benefit increase amendment, if that even applies in this instance, that you'd have to amend by tax return due date, including extensions - or, if you need to take that out to be able to allocate gateway and pass testing then you could do an 11(g) amendment by 10/15. Either way, I don't think you can go out to 12/31/2024. If the plan was properly designed and drafted, you should have overriding gateway allocation requirements (if that's your issue, and I think most pre-approved documents now have that) or those allocation conditions should have been removed as incompatible.

I see no problem with it if the DRO otherwise satisfied all the conditions to make it a QDRO. And make sure there is no ambiguity to which plan each provisions refers.