This document provides model language for a separation agreement to divide a defined benefit retirement plan between spouses as part of a divorce settlement. It outlines 11 sections addressing how to calculate and distribute the marital portion of benefits to the alternate payee (former spouse), including survivor benefits, cost of living adjustments, early retirement subsidies, and ensuring qualified domestic relations order (QDRO) approval. It stresses incorporating the QDRO language directly into the separation agreement to avoid future confusion and issues with the plan administrator.

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Model Separation Agreement Language for Dividing Defined
Benefit Plans ‐ Using a Marital Portion Approach
Section ______: Retirement Benefits of Defendant under the [Insert actual (official) plan
name].
The Defendant is a Participant under the [Insert actual (official) plan name] (hereinafter
referred to as Plan). For the purposes of marital property division, the Plaintiff is hereby
granted a portion of the Defendant's retirement benefits under the Plan as designated below.
The Plaintiff's ownership interest in the specified portion of the Defendant's retirement
benefits shall become effective on the Assignment Date, which shall be the date that the
Judgment Entry for Divorce is filed with the court.
1. Amount of Plaintiff's Benefits: Effective as of such Assignment Date, the Plaintiff shall be
assigned a portion of Defendant's retirement benefits in an amount equal to the actuarial
equivalent of Fifty Percent (50%) of the Marital Portion of the Defendant's Accrued Benefit
under the plan as of the Defendant's benefit commencement date, or the Plaintiff's benefit
commencement date, if earlier. The Marital Portion shall be determined by multiplying the
Defendant's Accrued Benefit by a fraction (less than or equal to 1.0), the numerator of which is
the number of months of the Defendant's credited service in the Plan earned during the
marriage (from ______ to ______), and the denominator of which is the total number of
months of the Defendant's credited service in the Plan as of the earliest of his or her date of
cessation of benefit accruals or the date that the Plaintiff commences his or her share of the
benefits hereunder.
2. Postretirement Cost‐of‐Living Adjustments: The Plaintiff shall receive a pro rata share of
any postretirement cost‐of‐living adjustments (COLAs) or other economic improvements
made to the Defendant's benefits on or after the date of his or her retirement. Such pro rata
share shall be calculated in the same manner as the Plaintiff's share of the Defendant's
retirement benefits is calculated as set forth in Item 1.
3. Commencement Date and Form of Payment to Plaintiff: The Plaintiff may elect to
commence his or her share of the benefits under the Plan as of the earliest retirement date on
which the Defendant is eligible to commence benefits under the Plan. The Plaintiff may elect
to receive his or her benefits in any one of the allowable benefit distribution options permitted
under the terms and provisions of the Plan, other than a Qualified Joint and Survivor Annuity
with his or her current spouse as the beneficiary. The form of benefit elected by the Plaintiff is
to be based on the life expectancy of such Plaintiff. Any actuarial adjustment that might be
necessary to convert the Plaintiff's benefits to one based on his or her lifetime should be
applied to his or her share of the benefits. The form of benefit elected by Plaintiff is to be based
on the life expectancy of such Plaintiff. Any actuarial adjustment that might be necessary to

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convert Plaintiff's benefits to one based on her lifetime should be applied to her share of the
benefits. In the event that the Plan does not permit the Plaintiff to receive his or her benefits in
the form of an actuarially equivalent life annuity based on his or her life expectancy, the form
of benefits payable to Plaintiff shall be based on the life expectancy of Defendant.
Additionally, the Defendant shall be required to elect his or her benefits in the form of a Joint
and Survivor Annuity in order to provide the Plaintiff with postretirement survivorship
protection.
Further, should any early commencement reduction be necessary in the event that the Plaintiff
commences his or her benefits prior to the Defendant's Normal Retirement Date under the
Plan, such reduction shall be applied to the Plaintiff's benefits in accordance with applicable
Plan provisions.
4. Early Retirement Subsidy: The Plaintiff shall be entitled to a pro rata share of any
employer‐provided early retirement subsidy provided to the Defendant on the date of his or
her retirement, and, in the event that the Plaintiff has already commenced his or her share of
the benefits on the date of the Defendant's retirement, the amounts payable to the Plaintiff
shall be increased in accordance with the Plan Administrator's practices and the Plan's
actuarial principles in order to provide the Plaintiff with the pro rata share of such early
retirement subsidy. Such pro rata share shall be calculated in the same manner as the
Plaintiff's share of defendant's retirement benefits is calculated pursuant to this Item 4.
5. Early Retirement Supplements: The Plaintiff shall be entitled to a pro rata share of any
early retirement supplements, interim supplements, or temporary benefits payable to the
Defendant. The Plaintiff's share of said benefit shall be calculated in the same manner as the
Plaintiff's share of the Defendant's retirement benefits is calculated pursuant to this Item 5.
6. Preretirement Survivorship Protection for Plaintiff: In order to secure the Plaintiff's
ownership right in the assigned portion of the Defendant's retirement benefits under the Plan
in the event that Defendant predeceases the Plaintiff and neither the Plaintiff nor the
Defendant has commenced her or his benefits under the Plan, such Plaintiff shall be
designated as the surviving spouse of the Defendant for purposes of establishing the Plaintiff's
entitlement to receipt of this monthly preretirement surviving spouse annuity, but only to the
extent of the lesser of (a) the amount that would have been payable to the Alternate Payee
under Section 7 had the Participant not died or (b) 100% of the pre‐retirement survivor annuity
that becomes payable under the Plan. In the event that the costs associated with providing this
preretirement death benefits coverage are not fully subsidized by Defendant's employer, the
Defendant must make an affirmative election for such preretirement surviving spouse
coverage in a timely manner and in accordance with his or employer's election procedures.
7. Tax Treatment of Distributions Made to Plaintiff under the Qualified Domestic Relations
Order: For purposes of Sections 401(a)(1) and 72 of the Internal Revenue Code, the Plaintiff
shall be treated as the distributee of any distribution or payments made to him or her under
the terms of the Qualified Domestic Relations Order (QDRO) and, as such, will be required to
pay the appropriate federal, state, and local income taxes on such distribution.
8. Inadvertent Payment(s) to Plan Participant: In the event that the Plan Trustee

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inadvertently pays to the Participant any benefits that are assigned to the Alternate Payee
pursuant to the terms of this Order, the Participant shall immediately return such payments to
the plan administrator. Upon receipt of the repayment, the plan administrator shall issue an
amended Form 1099 to the participant so that he is not liable for any income taxes associated
with the alternate payee's assigned share of the benefits.
9. A QDRO Shall Issue: In order to effectuate the Assignment provisions of this Separation
Agreement regarding the division of the Defendant's retirement benefits under the Plan, a
QDRO shall be prepared in accordance with the terms of this Agreement and submitted to the
Plan Administrator for processing. Notwithstanding the previous sentence, in the event that
the Defendant predeceases the Plaintiff prior to the date that a QDRO is officially approved by
the Plan Administrator, it is hereby ordered that the terms and provisions of this Judgment
Entry/Agreement shall, in and of itself, be deemed a QDRO by such Plan Administrator and
processed accordingly pursuant to the survivor language in Item 6.
10. Continued Jurisdiction: The court shall retain jurisdiction to amend the provisions
contained herein in order to establish and/or maintain the qualified status of the QDRO under
ERISA, and to effectuate the original intent of the parties. The court shall also retain
jurisdiction to enter such further orders that are just, equitable, and necessary to enforce,
secure, and sustain the benefits awarded to the Plaintiff, in the event that the Defendant
and/or the Plan Administrator fail to comply with any or all of the provisions contained herein.
Such further orders may also include, but not be limited to, nunc pro tunc orders or orders that
recharacterize the benefits awarded under the Plan to apply to benefits earned by the
Defendant under another plan, as applicable, or orders that award spousal or child support, to
the extent necessary to carry out the intentions and provisions of this Order.
11. Actions by Defendant: The Defendant shall not take any actions, affirmative or otherwise,
that can circumvent the terms and provisions of this Agreement, or that could diminish or
extinguish the rights and entitlements of the Plaintiff as set forth herein or under the terms of
the QDRO. Should the Defendant take any action or inaction to the detriment of the Plaintiff,
such Defendant shall be required to make sufficient payments directly to the Plaintiff to the
extent necessary to neutralize the effects of his or her actions or inactions and to the extent of
the Plaintiff's full entitlements hereunder.
Again, it should be obvious to all attorneys what the adverse consequences can be if the QDRO
is not prepared in a timely fashion. The QDRO should be prepared at the same time as the
Separation Agreement and then incorporate it by reference directly into the agreement. This
will avoid confusion down the road, as well as irate correspondence from an attorney for the
participant when this language is included in a QDRO drafted later. An attorney who does not
incorporate the QDRO by reference must, at the very least, include comprehensive and
definitive language in the Separation Agreement when it comes to dividing the participant's
retirement benefits.