Collecting Child Support From a Retirement Plan
Thursday / October 11, 2007
With the appropriate court order, collection of back child support against the noncustodial parent's retirement plan can be possible.
Retirement plans ordinarily are exempt from execution on a judgment. In other words, if a person obtains a court order that another person pay him money, the obligation to pay cannot be enforced against a retirement plan. But in 1974, Congress passed the Employee Retirement Income Security Act ("ERISA"). ERISA "federalized" the law governing retirement plans.
Among other things, ERISA states that retirement plans are not exempt from enforcement of a judgment for child support. Thus, if a noncustodial parent has a retirement plan, but is behind in the payment of child support, it may well be possible to force the retirement plan to pay the back child support. For this to be done, the custodial parent must obtain a special type of court order called a Qualified Domestic Relations Order (a "QDRO").
Most spouses who have gone through a divorce in which retirement benefits were divided have heard of a QDRO. A QDRO is used to divide retirement benefits subject to ERISA. But QDROs can be used to collect child support. In one example, Blue v. UAL Corporation, a custodial parent collected over $200,000 in back child support from her airline-pilot ex-husband's retirement plan. The court also allowed collection from the retirement plan of the attorney's fees incurred in collecting the back child support.
ERISA law, and the law governing QDROs, is complex. However, if a noncustodial parent who is in arrears on child support has any retirement benefits, then proper application of ERISA might provide an avenue to collect back child support directly from the retirement plan.
Among other things, ERISA states that retirement plans are not exempt from enforcement of a judgment for child support. Thus, if a noncustodial parent has a retirement plan, but is behind in the payment of child support, it may well be possible to force the retirement plan to pay the back child support. For this to be done, the custodial parent must obtain a special type of court order called a Qualified Domestic Relations Order (a "QDRO").
Most spouses who have gone through a divorce in which retirement benefits were divided have heard of a QDRO. A QDRO is used to divide retirement benefits subject to ERISA. But QDROs can be used to collect child support. In one example, Blue v. UAL Corporation, a custodial parent collected over $200,000 in back child support from her airline-pilot ex-husband's retirement plan. The court also allowed collection from the retirement plan of the attorney's fees incurred in collecting the back child support.
ERISA law, and the law governing QDROs, is complex. However, if a noncustodial parent who is in arrears on child support has any retirement benefits, then proper application of ERISA might provide an avenue to collect back child support directly from the retirement plan.