Collecting Unpaid Child Support in Virginia: QDROs as Collections Tool

Can you garnish an employee retirement account for the purposes of collecting unpaid child support?  What about spousal support?

The Virginia Court of Appeals was tasked with answering this question in Nkopchieu v. Minlend, Record No. 0500-11-4 (2011).  In that case, the parties had two children during their brief marriage.  The father became obligated to pay pendente lite child support to the tune of $2,000.  He chose to flee the country rather than pay any child support.  His wife, accordingly, sought entry of a qualified domestic relations order at trial.  She wanted the court to assign her some of his employee retirement benefits order at the time of their divorce so that she could collect at least some of his astronomical child support arrears ($28,163.66).[1]  The trial court said that it could not do so under the past precedent of Hoy v. Hoy, 29 Va. App. (1999).  The wife appealed.

The Virginia Court of Appeals reversed.  It held that Hoy was distinguishable.  In that case, the mother sought to reopen a divorce action for the purpose of entering a qualified domestic relations order.  She wanted the court to assign her some of her ex-husband’s employee retirement benefits so that she could collect at least some of his astronomical spousal support arrears ($84,000).  The trial court said that it could not.  The Virginia Court of Appeals affirmed the decision.  It held that the trial court lost jurisdiction over the action 21 days after entry of the final order of divorce under Virginia Supreme Court Rule 1.1.  It also held that it did not have continuing jurisdiction to modify orders dividing retirement accounts under Va. Code § 20-107.3(K)(4) because the divorce order was entered prior to July 1, 1982 and that it couldn’t have used that code section anyway to now divide up retirement benefits because to do so serve to impermissibly modify the substantive terms of the final order of divorce that had already divided up the marital estate.  Indeed, the assignment she was seeking was from an employee retirement account that did not even exist at the time of their divorce.  The Nkopchieu case, however, was different.  Neither Rule 1.1 nor Virginia Code § 20-107.3(K)(4) was implicated because the divorce case was still active, i.e., no final order had ever been entered.  Hoy, therefore, was inapplicable.

The Virginia Court of Appeals thus was forced with determining whether this division was permissible under its state law.[2]  It essentially held that it had the power to assign the ex-husband’s employee retirement benefits because all of its past caselaw has made clear that the financial support of children is one of its most important concerns.[3]  It buttressed its decision by referencing Va. Code § 20-107.2, which states, inter alia, that a court may make such further decree as it deems expedient concerning the support of the minor children of the parties upon their divorce.  It nevertheless went so far as to hold that the mother’s request in this case would be viable even if the parties had never been married.

The Virginia Court of Appeals left open numerous questions.  Was the crux of the court’s decision the timing aspect of it or the fact that child support was at issue?  Was the court’s invocation of statutory authority necessary to its decision or superfluous?  How would the court handle someone trying to have a qualified domestic relations order entered for child support purposes after divorce?  How would the court handle someone trying to have a qualified domestic relations order entered for spousal support purposes before divorce?

Time will tell  . . .

– Nicholas Jon Solan is a founding partner of Solan Alzamora, PLLC in Fairfax, Virginia.  He specializes in family law matters throughout Northern Virginia, including divorce, custody, support and equitable distribution matters.  He can be reached at (703) 359-0088 or nsolan@SAlawfirm.com or www.SAlawfirm.com.


[1] The wife was not seeking entry of a QDRO for the more typical purpose of dividing up marital property because the parties had a prenuptial agreement in place that protected the husband’s retirement assets.

[2] This division is permissible under federal law’s Employee Retirement and Income Security Act (ERISA).  ERISA allows for assignment of employee retirement benefits pursuant to an order entered under state domestic relations law that 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.”  29 U.S.C. § 1056(d)(3)(B)(ii).

[3] The court essentially invoked the doctrine of “Are we really going to let this clown get away with this?”

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Nicholas Solan

About Nicholas Solan

Nicholas Jon Solan is a founding partner at Solan Alzamora, PLLC in Fairfax, Virginia. He specializes in family law matters throughout Northern Virginia. He can be reached at (703) 359-0088, nsolan@SAlawfirm.com, or www.SAlawfirm.com.