05/20/2026
Our firm is regularly appointed as a neutral QDRO preparer to divide pensions. These assets are complicated and often include ancillary benefits such as disability pay, Social Security replacement benefits, or survivor annuities. In our experience, divorce decrees rarely address all of these different components with sufficient specificity.
So what should a QDRO preparer do when the decree is silent?
The employee-spouse often argues that silence constitutes a waiver, which, not surprisingly, generally inures to the employee’s benefit. We have never found that argument particularly persuasive and have generally treated silence as meaning the issue remains unresolved rather than waived.
The Arizona Court of Appeals weighed in on this issue last week in Nelson v. Nelson.
In Nelson, the decree ordered the parties to retain a QDRO professional to divide the wife’s pension and recommend whether the husband should receive survivor benefits. Before the QDRO was completed, the wife retired and waived the survivor annuity. The husband brought the issue to the court’s attention, and the wife argued that because the decree did not explicitly award survivor benefits to the husband, she was free to waive them.
The Court of Appeals disagreed and found that she violated the decree.
The decision stops short of holding that true silence can never constitute a waiver. But it strongly suggests that where a decree contemplates later implementation by a QDRO professional, silence regarding survivor benefits may be treated as an unresolved issue rather than an intentional waiver.
This case is also a reminder that survivor benefits are too important to leave unaddressed in a decree. As the Court of Appeals continues to confront these recurring disputes, practitioners should be drafting retirement provisions with much greater precision.
