At divorce, retirement benefits accrued by your spouse during the marriage are gone by operation lf law. That is the general rule that applies to ERISA-based plans and most state plans. That means, when you are divorced your benefits are at risk. There are only two (2) exceptions that typically do not apply in most divorces; and some plans like military retired pay, there are no exceptions to the rule. That is why it is critical to have your QDRO or similar assignment order entered with the divorce decree, not after.
Unfortunately, most divorce attorneys don't understand the importance of timing; and routinely get their clients divorced without the proper QDRO(s) in place. As a result, the attorney may be liable if the client loses benefits.
For more information on Risk of Loss and legal malpractice, please visit:
Qualified Domestic Relations Orders: Strategy and Liability for the Family Law Attorney (LexisNexis © 2025)