102 KAR 1:320 - Qualified domestic relations orders

RELATES TO: KRS 161.220, 161.700, 161.716, 403.190, 26 U.S.C. 414(p)

NECESSITY, FUNCTION, AND CONFORMITY: KRS 161.310(1) requires the Board of Trustees of the Teachers' Retirement System (TRS) to promulgate administrative regulations for the administration of the funds of the retirement system. KRS 161.700(4) requires the Board of Trustees of TRS to promulgate administrative regulations setting forth the requirements, procedures, and forms for the approval and processing of qualified domestic relations orders impacting the benefits of participants of the retirement system. This administrative regulation establishes these requirements.

Section 1. Definitions.
(1) "Alternate payee" is defined by KRS 161.220(26).
(2) "Benefits" means a monthly service or disability retirement allowance or refund payable at the request of a participant covered by TRS who terminates employment in a TRS covered position prior to becoming eligible to receive a retirement allowance.
(3) "Member" is defined by KRS 161.220(4).
(4) "Participant" is defined by KRS 161.220(24).
(5) "Qualified domestic relations orders" or "QDRO" is defined by KRS 161.220(25).
Section 2.
(1) A QDRO shall state the following:
(a) The member's name, TRS member identification number, and last-known mailing address;
(b) The alternate payee's name and last known mailing address;
(c) Whether the order applies to:
1. An active account from which the member is not currently receiving a retirement allowance; or
2. A retired account from which the member is currently receiving a retirement allowance and the date on which the member retired the account;
(d) The date of marriage;
(e) The date of decree of dissolution of marriage;
(f) That the order is for the purpose of property division;
(g) Whether the alternate payee shall receive:
1. Recurring monthly payments under Option A, Option B, or Option C; and
2. For an active, contributing participant, a share of a termination refund of the contributions posted to the participant's account as either:
a. A fixed dollar amount; or
b. A percentage calculated under Section 7(2) of this administrative regulation or as determined by either the Court or the parties;
(h) When payments shall begin;
(i) When payments shall cease;
(j) That the alternate payee shall be paid in the same form as the participant;
(k) If the alternate payee spouse shall share in the participant's cost of living adjustments if the QDRO awards a fixed dollar amount to the alternate payee;
(l) Who shall be responsible for payment of the TRS processing fee; and
(m) All information required on the Qualified Domestic Relations Order to Divide Teachers' Retirement System Benefits.
(2) A QDRO shall be:
(a) Approved by TRS as to enforceability and compliance with the requirements of KRS 161.700 and this administrative regulation;
(b) Approved and submitted by the participant and alternate payee or their legal counsel;
(c) Signed by the judge of a court of competent jurisdiction;
(d) Filed with the clerk of the court; and
(e) Certified by the clerk of the court.
Section 3. Administrative Provisions.
(1) Upon entry of a final divorce decree, the participant shall forward a copy of the decree to TRS and:
(a) If the participant is a retired member, request:
1. A Change of Option Following Termination of Marriage form, if the participant wants to change his or her retirement option, which shall be done within sixty (60) days of the final divorce decree;
2. A Change of Retirement Beneficiary form, if the participant had chosen retirement Option I or Option II and does not want to change his or her retirement option, but wants to name a new beneficiary;
3. A Designation of Beneficiary for TRS Life Insurance Benefit form, if the participant wants to designate a beneficiary other than his or her estate; or
4. A W-4P Withholding Certificate for Pension or Annuity Payments or "W-4P", if the participant wants to change the amount of federal tax withheld from his or her retirement benefit; or
(b) If the participant is an active member, he or she shall request:
1. A Designation of Beneficiary for TRS Retirement Account Balance form, if the participant wants to designate a beneficiary other than his or her estate; or
2. A Designation of Beneficiary for TRS Life Insurance Benefit form, if the participant wants to designate a beneficiary other than his or her estate.
(2) Thirty (30) days prior to filing the QDRO with TRS, the participant or alternate payee shall present a written request for benefits information for divorce purposes. The participant, alternate payee, or third party, including the party's legal counsel, shall provide a completed TRS Authorization for Release of Information form with the request.
(3) For a QDRO directed to an active account from which a participant is not currently receiving a retirement allowance, TRS may, for the current fiscal year, provide the unaudited salary information electronically submitted to TRS by the participant's employer upon receipt of the written request and release.
(4) If the QDRO is directed to an account from which the participant is not currently receiving a retirement allowance, TRS shall not project future earnings or future service. TRS shall provide:
(a) The participant's total accrued service credit, including service credit purchased during the marriage, and the member account balance, including the total amount of accrued contributions and interest, as posted at the end of each fiscal year during the marriage and for which an employer annual report has been received by TRS and for which the member has not received a refund; and
(b) An estimate of the monthly retirement allowance the participant would receive if the participant retired without a statutory reduction of the basic retirement allowance based upon the participant's final compensation and total accrued service credit as of the date of dissolution of marriage or receipt of the request for information.
(5) If the participant has retired, TRS shall provide the amount of the participant's monthly retirement allowance, the participant's accumulated account balance at retirement, the total retirement allowance received to date, and the participant's total accrued service credit, including any service credit purchased during the marriage. The parties, their legal counsel, or the court may use the information to decide what portion of the participant's account is marital. TRS shall not decide whether, or if, any portion of the participant's account is marital and potentially subject to division.
(6) The participant, alternate payee, or legal counsel shall submit a Qualified Domestic Relations Order to Divide Teachers' Retirement System Benefits form to TRS for review forty-five (45) days prior to filing the QDRO with the court. If more than one (1) of the participant's accounts is subject to classification and division as marital property, a separate QDRO shall be issued for each TRS account.
(7) TRS shall not review the QDRO unless it is accompanied by the following:
(a) The TRS Administrative Regulatory Compliance form, or the draft QDRO, which has been approved by the:
1. Participant or legal counsel; and
2. Alternate payee or legal counsel;
(b) A $300 nonrefundable processing fee, by certified check or on the attorney's trust account, made payable to the Kentucky State Treasurer, except that a processing fee shall not be charged for a QDRO issued solely for child support;
(c) The TRS Confidential Information form, which shall include the participant's and alternate payee's address, Social Security number, and date of birth;
(d) Copies of the participant's and alternate payee's signed Social Security cards;
(e) TRS Authorization for Direct Deposit form; and
(f) Any other documents that are required to confirm additional service credit purchased, or sought to be purchased, for retirement calculation purposes under KRS 161.220 through 161.716, including TRS Military Service Certification and Affidavit form, with a copy of the discharge papers.
(8) Within twenty (20) days of receipt of the QDRO, TRS shall notify the participant and alternate payee in writing whether the QDRO meets TRS requirements. If the QDRO meets TRS requirements, TRS shall approve the QDRO and circulate an original, signed QDRO for signature by the participant and alternate payee for submission to the court. If the participant or alternate payee is represented by legal counsel, the approved QDRO shall instead be provided to their legal counsel for signature by counsel and submission to the court. TRS shall forward a W-4P Withholding Certificate for Pension or Annuity Payments form to the alternate payee.
(9) If the QDRO does not meet TRS requirements, TRS shall notify the participant and alternate payee in writing, identifying those provisions which are not in compliance and the amendments needed to bring the QDRO into compliance. If the participant or alternate payee is represented by legal counsel, this notice shall instead be provided to their legal counsel. The amended QDRO shall be submitted to TRS for review and approval prior to filing with the court.
(10) TRS shall reject any QDRO entered by a court that has not been reviewed or approved by TRS prior to its submission to the court. TRS shall notify the participant, the alternate payee, or their legal counsel, and the court in writing, identifying those provisions that are not in compliance and the amendments needed to bring the QDRO into compliance before it shall be accepted by TRS.
(11) If the QDRO is subsequently amended before filing with the court, the amended QDRO shall be resubmitted to TRS with a $150 nonrefundable processing fee for review and approval.
(12) Following approval by the court, the participant, alternate payee, or legal counsel shall file a certified copy of the QDRO with TRS.
(a) The QDRO shall not become effective until the certified copy is received by TRS.
(b) Upon receipt of the certified copy, TRS shall designate the participant's account for implementation of the QDRO.
(c) While a separate account balance shall not be maintained for the alternate payee, a separate payroll account shall be established.
(d) If the participant is a retired member, payments to the alternate payee shall commence in the calendar month following the date that a certified copy of the QDRO is received by TRS, if the alternate payee has supplied a correctly executed W-4P form. If the alternate payee either fails to return the W-4P or does not correctly execute the form, TRS shall apply the IRS default option of married with three (3) exemptions, which results in no withholding of federal tax. If the Alternate Payee chooses a different option and then provides a correctly executed W-4P, future payments shall be adjusted.
(e) If the participant is an active member, payments to the alternate payee shall commence in the calendar month in which the participant begins to receive a monthly annuity, if the alternate payee has provided his or her current address, a correctly executed W-4P and banking information as required by subsection (15) of this section. If the alternate payee either fails to return the W-4P or does not correctly execute the form, TRS shall proceed in the same manner as described in paragraph (d) of this subsection.
(f) If the participant is an active member who withdraws from service prior to eligibility for retirement and requests a refund of his or her accumulated account balance, the provisions of 102 KAR 1:060, setting forth the requirements for processing payment of the refund to the participant and the alternate payee, shall be followed. If the parties fail to designate the alternate payee's share of a refund in the QDRO, TRS shall refund the entire participant's account to the participant in accordance with the provisions of this administrative regulation and 102 KAR 1:060, and TRS and its staff shall have no liability for making the refund in this manner.
(13) If TRS is enforcing a QDRO that is subsequently amended or terminated by the court, then either the participant, alternate payee, or legal counsel shall submit a certified copy of the amended QDRO or order of termination to TRS for processing.
(14) The participant, alternate payee, or legal counsel shall not submit a QDRO that is not final and under consideration by an appellate court.
(15) The alternate payee shall be responsible for notifying TRS of any change in name, mailing address, or banking information.
(a) TRS shall provide a Name or Change of Address form or Authorization for Direct Deposit form upon request.
(b) TRS shall contact the alternate payee at the last known mailing address on file to notify the alternate payee when an annuity benefit subject to the QDRO becomes payable.
(c) Other than sending a notice as established in paragraph (b) of this subsection, TRS shall have no duty or responsibility to search for, or locate, the alternate payee.
(d) If the notification sent to the alternate payee's last known address is returned due to the alternate payee's failure to notify TRS of an address change or if the bank notifies TRS that the alternate payee's account has been closed, within sixty (60) days of the return of the notification to the alternate payee or receipt of notification from the bank, the amounts otherwise payable to the alternate payee shall be paid to the participant until a new address or bank account information is provided by the alternate payee.
(e) TRS shall have no liability to the alternate payee with respect to amounts paid to the participant.
(16) The participant shall be responsible for notifying TRS in writing of an event that causes benefit payments to the alternate payee spouse, child, or other dependent to cease.
(a) The participant shall provide TRS with a certified copy of the alternate payee's death certificate or marriage certificate. TRS shall suspend payments due the alternate payee provided that submission of proof of the death or marriage of the alternate payee, if marriage terminates payments under the terms of the QDRO, is received by the beginning of the month following receipt of the participant's written notification.
(b) The alternate payee shall also be responsible for notifying TRS in writing of the alternate payee's remarriage if, under the terms of the QDRO, that is an event that terminates the alternate payee's right to receive any payments.
(c) TRS shall not be responsible for payments made to the alternate payee until it is given timely written notice and documentation of any event terminating those payments.
Section 4. A QDRO may apply to a participant's:
(1) Retirement allowance;
(2) Disability retirement allowance; or
(3) Termination refund.
Section 5. A QDRO shall not apply to a participant's:
(1) Survivor annuity that becomes payable after the member's death;
(2) Survivor benefits that become payable after an active contributing member's death;
(3) Accounts that are not vested at the time of the dissolution of marriage;
(4) Life insurance benefit;
(5) Refund as a result of an error;
(6) Refund of an active or retired account in response to a member's death;
(7) Health insurance; and
(8) Any other payment or benefit not described in Section 4 of this administrative regulation.
Section 6. If an alternate payee has, under the terms of the QDRO, been awarded a share of the participant's annuity benefits and dies before the participant dies, retires, or withdraws his account, the entire remaining account value shall be restored to the participant.
Section 7. Calculation and Payment.
(1)
(a) If the participant has retired, the portion of the participant's benefits payable to the alternate payee as a percentage of the participant's total service retirement allowance, disability retirement allowance, or refundable account balance, accrued through the date of dissolution of marriage, that is in excess of the retirement benefits of the alternate payee as provided under KRS 403.190(4), shall be calculated by the following fraction:
1. The numerator of which shall be the participant's total full and fractional years of creditable TRS service earned during the marriage, including service credit purchased during the marriage; and
2. The denominator of which shall be the participant's total full and fractional years of TRS service credit through the date of retirement.
(b) The resulting fraction shall be converted to a percentage that shall be divided by two (2).
(c) Option C may be utilized if the duration of the retired participant and the alternate payee's marriage was less than the participant's total full and fractional years of TRS service at the date of retirement. The parties or their legal counsel shall report the marital years in Option C of the QDRO.
(2)
(a) For an active account, the portion of the participant's benefits payable to the alternate payee as a percentage of the participant's total service retirement allowance, disability retirement allowance, or refundable account balance, accrued through the date of dissolution of marriage, that is in excess of the retirement benefits of the alternate payee as provided under KRS 403.190(4), shall be calculated by the following fraction:
1. The numerator of which shall be the participant's total full and fractional years of creditable TRS service earned during the marriage, including service credit purchased during the marriage, as reported by the parties or their legal counsel in Option C of the QDRO; and
2. The denominator of which shall be the participant's total full and fractional years of TRS service credit as determined by TRS at the time that the participant retires either by service retirement or disability retirement or requests a refund of his or her account balance.
(b) The resulting fraction shall be converted to a percentage that shall be divided by two (2).
(3) If the participant is or will be receiving a disability retirement allowance, the participant's total annuity benefit for purposes of this administrative regulation shall be calculated under the service retirement formula established under KRS 161.661(5), even if the entitlement period described under KRS 161.661(3) and (4) has not expired.
(4) If an alternate payee has, under the terms of the QDRO, been awarded a share of the participant's disability retirement allowance that is subsequently discontinued, the alternate payee shall not receive a benefit. Further, if a participant remains disabled at the end of his or her entitlement period, pursuant to KRS 161.661(5), the disability benefits shall be recalculated and may result in a lower monthly payment to both the participant and the alternate payee.
(5) If the QDRO is directed to an account from which the participant is not receiving a retirement allowance, the participant's total annuity benefit shall be calculated without inclusion of the discounts required under KRS 161.620(1)(b) and (d).
(a) If at retirement the participant is subject to discounts required under KRS 161.620(1)(b) and (d), and if the QDRO establishes a set dollar amount to be withheld from the retirement benefits that are payable to the participant and to be paid to the alternate payee, TRS shall reduce the amount to be paid to the alternate payee under the QDRO by the amount of the discounts.
(b) TRS shall increase the amount paid to the alternate payee in an amount equal to any discounts that are subsequently eliminated as the result of the participant's return to work after retirement under the provisions of KRS 161.605(11), upon the participant's resumption of receipt of retirement benefits.
(6) If the QDRO is directed to an account from which the participant is not receiving a retirement allowance, and the participant at issuance of the QDRO is not eligible for calculation of his total annuity benefit based on his three (3) highest salaries as provided under KRS 161.220(9), then his total annuity benefit shall be calculated on his five (5) highest salaries.
(7) The participant may select any retirement option.
Section 8. Any person who attempts to make TRS a party to a domestic relations action in order to determine an alternate payee's right to receive a portion of the annuity benefits payable to the participant shall be liable to TRS for its costs and legal fees.
Section 9. Incorporation by Reference.
(1) The following material is incorporated by reference:
(a) "Teachers' Retirement System Authorization for Release of Information", July 2016;
(b) "Qualified Domestic Relations Order to Divide Teachers' Retirement System Benefits", January 2019;
(c) "Teachers' Retirement System Administrative Regulatory Compliance", July 2016;
(d) "Teachers' Retirement System Confidential Information", July 2016;
(e) "Teachers' Retirement System Authorization for Direct Deposit", July 2016;
(f) "Teachers' Retirement System Military Service Certification and Affidavit", July 2016;
(g) "Teachers' Retirement System Name or Change of Address", July 2016;
(h) "Change of Option Following Termination of Marriage", July 2016;
(i) "Change of Retirement Beneficiary", July 2016;
(j) "Designation of Beneficiary for TRS Life Insurance Benefit", July 2016;
(k) "Designation of Beneficiary for TRS Retirement Account Balance", July 2016; and
(l) "Withholding Certificate for Pension or Annuity Payments" or "W-4P", 2016.
(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at Teachers' Retirement System, 479 Versailles Road, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 5 p.m.
(3) W-4P may also be obtained at www.irs.gov/pub/irs-pdf/fw4p.pdf.

Notes

102 KAR 1:320
37 Ky.R. 606; 989; 1170; eff. 11-8-2010; 39 Ky.R. 1901; 2149; eff. 5-31-2013; 40 Ky.R. 2321; 2675; eff. 7-7-2014; 42 Ky.R. 2408, 2555; eff. 5-6-2016; 43 Ky.R. 262, 530; eff. 11-4-2016; 45 Ky.R. 2406, 3048; eff. 5-31-2019; Crt eff. 7-3-2019.

STATUTORY AUTHORITY: KRS 161.310(1), 161.700(4)

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