A federal law called ERISA governs the distribution of retirement benefits like 401(k) plans and pensions.  This means that when dividing these plans in a divorce an additional court order called a Qualified Domestic Relations Order must be signed by the Court.  These normally mirror the decree, but what if they do not.

A case before the Corpus Christi Court of appeals addresses this to some extent. In Vela v. Vela, No. 13-17-00217-CV, 2019 WL 1388526 (Tex. App.—Corpus Christi 2019, no pet. h.) the parties signed a divorce decree that did not divide the husband’s retirement benefits, but the parties signed a QDRO which awarded the wife 35% of husband’s retirement. After the divorce, husband claimed that because the decree had not awarded the retirement benefits the wife was not entitled to them.  The trial court disagreed and entered a nun pro tunc which is a new order that corrects a clerical error.  Husband appealed and the appellate court confirmed the trial court’s ruling.

The lesson is that in some cases a QDRO will control over and above what is in the final decree.