In Advisory Opinion 2011-03A, the Department of Labor (the “DOL”) discussed whether a domestic relations order maybe treated as a “qualified domestic relations order” or “QDRO”. In doing so, the DOL addressed the more specific question of whether a domestic relations order issued by a Family Court of the Navajo Nation, a federally-recognized Native American tribe, may be treated as a QDRO. The DOL said the following.
Section 206(d) of ERISA sets out ERISA’s anti-alienation rule. Section 206(d)(1) generally requires that plan benefits may not be assigned or alienated. Section 206(d)(3)(A) states that section 206(d)(1) applies to an assignment or alienation of benefits pursuant to a domestic relations order, unless the order is determined to be a QDRO. Section 206(d)(3)(B)(i) generally defines a “QDRO” as being a domestic relations order “which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan”. In turn, section 206(d)(3)(B)(ii) generally defines a “domestic relations order” as being “any judgment, decree, or order which – (I) relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and (II) is made pursuant to a State domestic relations law.” Section 3(10) of ERISA defines the term “State” as any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, and the Canal Zone.
Nothing in ERISA requires that a domestic relations order be issued by a State court. Rather, the DOL has previously concluded that a division of marital property in accordance with the proper final order of any State authority, which is recognized within the State’s jurisdiction as being empowered to achieve such a division of property pursuant to State domestic relations law, would be considered a “judgment, decree, or order” for purposes of ERISA section 206(d)(3)(B)(ii). Section 3(10) of ERISA, and Federal law in general, does not treat Indian tribes as States, or as agencies or instrumentalities of States. In the DOL’s view, a tribal court order may constitute a “judgment, decree or order . . . made pursuant to State domestic relations law” for purposes of ERISA section 206(d)(3)(B)(ii), if it is treated or recognized as such by the law of a State that could issue a valid domestic relations order with respect to the participant and alternate payee in question. In this case, however, the domestic relations order in question does not satisfy ERISA section 206(d)(3)(B)(ii), and therefore is not a QDRO, since the law of the applicable State-New Mexico- does not recognize or treat orders of the Family Court of the Navajo Nation as orders issued pursuant to New Mexico state domestic relations law.