94- 411 C.M.R. ch. 103, § 9 - Determination of Whether an Order is a Qualified Domestic Relations Order

The executive director will apply the requirements of 5 MRSA §17059 to determine whether an order is a qualified domestic relations order. The following provisions will also be used in making the determination:

1. The order must provide for all possible distributions of benefits by the System for the member or retiree under plan provisions. This requirement shall be deemed to have been met by a provision that:

A. Awards to the alternate payee a specific or clearly determinable percentage rather than an amount, of each distribution by the Retirement System based on the member's account or retiree's benefit; or

B. Awards to the member or retiree, in accordance with plan provisions, all benefits payable with respect to a member or retiree not specifically awarded to the alternate payee.

2. The order must provide for reducing the amount awarded in the event of reduction of the benefit based on the age of the member, each reduction to be in proportion to the factors used to reduce the standard monthly benefit on the basis of the member's age below normal retirement age. This requirement shall be deemed to have been not if:

A. The order awards a percentage of whatever monthly benefit is payable after all elections have been made by the member, or in the event of death benefits, by the designated beneficiary;

B. The member or retiree has reached normal retirement age and, if a retiree, has retired without any reduction for early age retirement at the time of the determination as to whether the order is a qualified domestic relations order; or

C. The order reflects that the retiree is or will be receiving retirement benefits reduced for early age retirement and the award to the alternate payee has considered the reduced amount of the retiree's monthly benefit payments.

3. The order may not:

A. Purport to require the designation by the member or retiree of a particular person and the recipient of benefits in the event of a member's or retiree's death;

B. Purport to require the selection of a particular benefit payment plan or option or to limit the benefit payment plans or options from which the member or beneficiary may select;

C. Require any action on the part of the System contrary to its governing laws or plan provisions other than the direct payment of the benefit awarded to an alternate payee;

D. Make the award to the alternate payee an interest which is contingent on any condition other than those conditions resulting in the liability of the System for payment under its plan provisions;

E. Purport to give to someone other than a member or retiree the right to designate a beneficiary or to choose any retirement plan or option available from the System;

F. Attach a lien to any part of amounts payable with respect to a member or retiree;

G. Award an alternate payee a portion of the benefits payable with respect to a member or retiree under the System and purport to require the System to make a lump sum payment of the awarded portion of the benefits to the alternate payee that are not payable in a lump sum; or

H. Purport to require the System, without action by the member, to terminate a member from membership or employment, to refund contributions, or to retire a member.

4. A qualified domestic relations order may not provide for the award of a specific amount of a benefit, rather than a percentage of this benefit, to an alternate payee unless the order also provides for a reduction of the amount awarded in the event that the benefits available to the retiree or member are reduced by law. This requirement shall not apply to benefit waivers executed by the member.

5. The System will divide future benefit increases provided by statute or act of the Legislature between the member, retiree or beneficiary and the alternate payee in the same proportion that the benefits are divided.

6. An order shall specify the date of the marriage, if the alternate payee is the member's or retiree's spouse or former spouse.

Notes

94- 411 C.M.R. ch. 103, § 9