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CHAPTER 804. DOMESTIC RELATIONS ORDERS AND SPOUSAL CONSENT
SUBCHAPTER A. QUALIFIED DOMESTIC RELATIONS ORDERS
§ 804.001. Definitions
In this chapter:
(1) "Alternate payee" means a spouse, former spouse, child, or other dependent of a member or retiree who is recognized by a
domestic relations order as having a right to receive all or a
portion of the benefits payable by a public retirement system with
respect to such member or retiree.
(2) "Domestic relations order" means any judgment, decree, or order, including approval of a property settlement agreement, which
relates to the provision of child support, alimony payments, or
marital property rights to a spouse, former spouse, child, or other
dependent of a member or retiree, and is made pursuant to a
domestic relations law, including a community property law of the
State of Texas or of another state.
(3) "Public retirement system" means the Employees Retirement System of Texas, the Judicial Retirement System of Texas Plan One,
the Judicial Retirement System of Texas Plan Two, the Teacher
Retirement System of Texas, the Texas County and District
Retirement System, the Texas Municipal Retirement System, and any
other continuing, organized program of service retirement,
disability retirement, or death benefits for officers or employees
of the state or a political subdivision or of an agency or
instrumentality of the state or a political subdivision and
includes the optional retirement program governed by Chapter 830.
Public retirement system does not include:
(A) a program, other than the optional retirement program, for which benefits are administered by a life insurance company;
(B) a program providing only workers' compensation benefits;
(C) a program administered by the federal government;
(D) an individual retirement account or individual retirement annuity within the meaning of Section 408, or a retirement bond within the meaning of Section 409, of the Internal Revenue Code of
1986;
(E) a plan described by Subsection (d) of Section 401 of the Internal Revenue Code of 1986;
(F) a group or an individual account plan consisting of an annuity contract described by Subsection (b) of Section 403 of the Internal Revenue Code of 1986, other than a 403(b) contract or plan under the optional retirement program;
(G) an eligible state deferred compensation plan described by Subsection (b) of Section 457 of the Internal Revenue Code of 1986;
or
(H) the program established by Chapter 615.
(4) "Qualified domestic relations order" means a domestic relations order which creates or recognizes the existence of an
alternate payee's right or assigns to an alternate payee the right
to receive all or a portion of the benefits payable with respect to
a member or retiree under a public retirement system, which directs
the public retirement system to disburse benefits to the alternate
payee, and which meets the requirements of Section 804.003.
(5) "Statewide retirement system" means the Employees Retirement System of Texas, the Judicial Retirement System of Texas
Plan One, the Judicial Retirement System of Texas Plan Two, the
Teacher Retirement System of Texas, the Texas County and District
Retirement System, or the Texas Municipal Retirement System.
§ 804.002. Application of Chapters
This subchapter and Subchapter C apply to each statewide
retirement system and to the optional retirement program governed
by Chapter 830. This subchapter and Subchapter C also apply to each
other public retirement system for which the board of trustees of
the system elects to adopt the provisions of this subchapter and
Subchapter C. An election under this section must be by order or
resolution and need not set out the text of this subchapter or
Subchapter C. A board of trustees may not elect to adopt only this
subchapter or Subchapter C.
§ 804.003. Qualified Domestic Relations Orders
(a) Sections 811.005, 821.005, 831.004, 836.004, 841.006, and
851.006 and any similar antialienation provisions contained in any
other public retirement system shall apply to the creation,
assignment, recognition, or enforcement of a right to any benefit
payable with respect to a member or retiree of a public retirement
system to which the section applies pursuant to a domestic
relations order unless the order is determined to be a qualified
domestic relations order.
(b) Except as provided in Subsection (d), the administrative
head of a public retirement system to which this chapter applies
and to which a domestic relations order is submitted or his
designee has exclusive authority to determine whether a domestic
relations order is a qualified domestic relations order. A
determination by the administrative head or his designee under this
section may be appealed only to the board of trustees of the public
retirement system. An appeal to the board of trustees of a
statewide retirement system is a contested case under Chapter 2001.
However, the board of a statewide retirement system by rule may
waive the requirement of an appeal to the board. On appeal of a
decision made by the board of trustees or by the administrative
head if there is no appeal to the board under this section, the
standard of review is by substantial evidence.
(c) Except as provided in Subsection (d), a court does not
have jurisdiction over a public retirement system to which this
chapter applies with respect to a divorce or other domestic
relations action in which an alternate payee's right to receive all
or a portion of the benefits payable to a member or retiree under
the public retirement system is created or established. A party to
such an action who attempts to make a public retirement system a
party to the action contrary to the provision of this subsection
shall be liable to the public retirement system for its costs and
attorney's fees.
(d) Under the optional retirement program, applicable carriers
shall determine whether a domestic relations order is a qualified
domestic relations order. If a dispute arises over the
determination of whether a domestic relations order is a qualified
domestic relations order which cannot be resolved by the procedure
described in Subsection (g), the court which issued the order or
which otherwise has jurisdiction over the matter shall resolve the
dispute with respect to a divorce or other domestic relations
action in which an alternate payee's right to receive all or a
portion of the benefits payable to a member or retiree under the
optional retirement program is created or established.
(e) For the purposes of this section, benefits payable with
respect to a member or retiree under the retirement system include
the types of benefits payable by a public retirement system and a
withdrawal of contributions from a public retirement system.
(f) A domestic relations order is a qualified domestic
relations order only if such order:
(1) clearly specifies the name, social security number, and last known mailing address, if any, of the member or retiree and
the name, social security number, and mailing address of each
alternate payee covered by the order;
(2) clearly specifies the amount or percentage of the member's or retiree's benefits to be paid by a public retirement system to
each such alternate payee or the manner in which such amount or
percentage is to be determined;
(3) clearly specifies the number of payments or the period to which such order applies;
(4) clearly specifies that such order applies to a designated public retirement system;
(5) does not require the public retirement system to provide any type or form of benefit or any option not otherwise provided
under the plan;
(6) does not require the public retirement system to provide increased benefits determined on the basis of actuarial value;
(7) does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee
under another order previously determined to be a qualified
domestic relations order; and
(8) does not require the payment of benefits to an alternate payee before the retirement of a member, the distribution of a
withdrawal of contributions to a member, or other distribution to
a member required by law.
(g) A public retirement system may reject a domestic relations
order as a qualified domestic relations order unless the order:
(1) provides for a proportional reduction of the amount
awarded to an alternate payee in the event of the retirement of the
member before normal retirement age;
(2) does not purport to require the designation of a particular person as the recipient of benefits in the event of a
member's or annuitant's death;
(3) does not purport to require the selection of a particular benefit payment plan or option;
(4) provides clearly for each possible benefit distribution under plan provisions;
(5) does not require any action on the part of the retirement system contrary to its governing statutes or plan provision other
than the direct payment of the benefit awarded to an alternate
payee;
(6) does not make the award of an interest contingent on any condition other than those conditions resulting in the liability of a retirement system for payments under its plan provisions;
(7) does not purport to award any future benefit increases that are provided or required by the legislature; and
(8) provides for a proportional reduction of the amount awarded to an alternate payee in the event that benefits available
to the retiree or member are reduced by law.
(h) The administrative head of a public retirement system to
which this chapter applies or his designee (or applicable carrier,
if under the optional retirement program), upon receipt of a
certified copy of a domestic relations order, shall determine
whether such order is a qualified domestic relations order and
shall notify the member or retiree and each alternate payee of such
determination. If the order is determined to be a qualified
domestic relations order, the public retirement system (or
applicable carrier, if under the optional retirement program),
shall pay benefits in accordance with the order. If the order is
determined not to be a qualified domestic relations order, the
member or retiree or any alternate payee named in the order may
appeal the administrative head's determination in the manner
specified in Subsection (b) or the optional retirement program
carrier's determination in the manner specified in Subsection (d)
and may petition the court which issued the order to amend the
order so that it will be qualified. The court which issued the
order or which would otherwise have jurisdiction over the matter
has jurisdiction to amend the order so that it will be qualified
even though all other matters incident to the action or proceeding
have been fully and finally adjudicated.
(i) During any period in which the issue of whether a domestic
relations order is a qualified domestic relations order is being
determined by the agency administrative head, his designee, the
board of trustees, a court of competent jurisdiction, optional
retirement program carrier, or otherwise, the public retirement
system shall separately account for the amounts, in this section
referred to as the "segregated amounts," which would have been
payable to the alternate payee during such period if the order had
been determined to be a qualified domestic relations order.
(j) If a domestic relations order is determined to be a
qualified domestic relations order, then the public retirement
system (or applicable carrier, if under the optional retirement
program) shall pay the segregated amounts without interest to the
person or persons entitled thereto and shall thereafter pay
benefits pursuant to the order.
(k) If a domestic relations order is determined not to be a
qualified domestic relations order or if within 18 months of the
date a domestic relations order is received by the public
retirement system (or applicable carrier, if under the optional
retirement program) the issue as to whether such order is a
qualified domestic relations order is not resolved, then the public
retirement system (or applicable carrier, if under the optional
retirement program) shall pay the segregated amounts without
interest and shall thereafter pay benefits to the person or persons
who would have been entitled to such amounts if there had been no
order. This subsection shall not be construed to limit or
otherwise affect any liability, responsibility, or duty of a party
with respect to any other party to the action out of which the
order arose.
(l) Any determination that an order is a qualified domestic
relations order which is made after the close of the 18-month
period shall be applied prospectively only.
(m) The public retirement system, the board of trustees, and
officers and employees of the public retirement system (or
applicable carrier, if under the optional retirement program) shall
not be liable to any person for making payments of any benefits in
accordance with a domestic relations order in a cause in which a
member or a retiree was a party or for making payments in
accordance with Subsection (k).
(n) The board of trustees of a public retirement system may
promulgate rules it deems necessary to implement the provisions of
this section.
(o) Except as specifically provided in this subtitle or by any
other statute, public employment does not confer special privileges
or immunities on a public employee. An ownership or beneficial
interest in any retirement, pension, or other financial plan not
included in the definition of "public retirement system" as set
forth in Section 804.001 held in whole or in part by an officer or
employee of the state or a political subdivision or of an agency or
an instrumentality of either, whether obtained in connection with
that employment or otherwise, shall be subject to the requirements
of the federal laws governing qualified domestic relations orders.
§ 804.004. Life Annuity or Lump-Sum Payment in Lieu of Benefits
Awarded by a Qualified Domestic Relations Order
(a) The board of trustees of a public retirement system to
which this chapter applies may by rule provide that, in lieu of
paying an alternate beneficiary the interest awarded by a qualified
domestic relations order, the system may pay the alternate
beneficiary an amount that is the actuarial equivalent of such
interest in the form of:
(1) an annuity payable in equal monthly installments for the
life of the alternate payee; or
(2) a lump sum.
(b) The determination of whether to pay an amount authorized
by this section in lieu of the interest awarded by the qualified
domestic relations order shall be at the sole discretion of the
public retirement system.
(c) If a public retirement system elects to pay the alternate
payee pursuant to this section, the benefit payable by the system
to the member, retiree, or beneficiary shall be reduced by the
interest in the benefit awarded to the alternate payee by the
qualified domestic relations order.
(d) If the public retirement system pays the alternate payee
pursuant to this section, the retirement system shall be entitled
to rely on a beneficiary designation or benefit option selection
made or changed pursuant to its plan without regard to any domestic
relations order.
§ 804.005. Payment in Certain Circumstances in Lieu of Benefits
Awarded by Qualified Domestic Relations Order
(a) This section applies only to the Employees Retirement
System of Texas and the Teacher Retirement System of Texas.
(b) A public retirement system to which this section applies
shall pay an alternate payee of a member of the retirement system
who is described by Subsection (c), if the alternate payee so
elects and in lieu of the interest awarded by a qualified domestic
relations order on or after January 1, 1985, an amount that is the
alternate payee's portion of the actuarial equivalent of the
accrued retirement benefit of the member of the retirement system,
determined as if the member retired on the date of the alternate
payee's election. The amount becomes payable at the time the
actuarial equivalent is determined, and the amount is payable in
the form of an annuity payable in equal monthly installments for
the life of the alternate payee.
(c) A member whose benefits are subject to partial payment
under this section is one who has not retired from the retirement
system, has attained the greater of the age of 62 or normal
retirement age and the service requirements for service retirement,
and retains credit and contributions in the retirement system
attributable to that service.
(d) If an alternate payee elects to be paid under this
section, the retirement system shall reduce the benefit payable by
the system to the member or the member's beneficiary by the
alternate payee's portion of the actuarial equivalent determined
under Subsection (b).
(e) In determining under Subsection (b) the actuarial
equivalent of an accrued retirement benefit, the system shall
consider the member's benefit as a normal age standard service
retirement annuity, without regard to any optional annuity chosen
or beneficiary designated by the member.
(f) The beginning of monthly payments under this section
terminates any interest that the alternate payee who receives the
payment might otherwise have in benefits that accrue to the account
of the member after the date the initial payment to the alternate
payee is made.
(g) A public retirement system may adopt rules for
administration of this section. |