Subsequent DRO issued to essentially provide alternate payye with more retiement benefits in exchange for less other marital property

[R. Butler]

H & W get divorced. A DRO in good form is issued and processed as a QDRO. It turns out as part of the DRO W gets 1/2 the building where H's business is located. H does not have the money to buy her out. H & W now want to go back to court & get a 2nd DRO. The DRO will give additional retirement plan money to W; H will get building flat out.

1. Assuming subsequent DRO is drafted carefully and has a provision just allocating additional retiement plan money to W & has a separate provision giving entire building to H; does anybody see a problem?

2. Lets says DRO not drafted quite as carefully (We do not draft DRO's, just help the plan sponsor apply plan's QDRO rules); assume it says W gets $xxx amount from retirement plan in return for her 1/2 interest in building. Does anybody see a problem?

I'm a little uneasy about this situation. I don't really see a problem with #1, but I'm not so sure if they come back with #2.

Thanks for any guidance.

[Guest Grabitquick]

I'd be concerned about #2 also. Without having given it a great deal of thought, if this is a conditional provision (i.e., no payment from the plan if the interest in the house is not transferred), then I question whether it could be a QDRO.