West Virginia Code of State Rules › Agency 162 - Consolidated Public Retirement Board › Title 162 - LEGISLATIVE RULE CONSOLIDATED PUBLIC RETIREMENT BOARD › Series 162-01 - General Provisions › Section 162-1-7 - Non-Alienation of Benefits: Divorce and Separation

Current through Register Vol. XLI, No. 28, July 12, 2024
7.1. The
				moneys in each of the Retirement Systems and the right of a person to receive
				any benefit, whether it be an annuity, return of retirement contributions, or
				other benefit, are not subject to execution, attachment, garnishment, the
				operation of bankruptcy or other insolvency laws. State or municipal taxation,
				or any other legal process whatsoever; and are not assignable nor transferable
				by any employee, retirant or beneficiary: Provided, That orders entered by a
				court of record and enforced by the Bureau for Child Support and Enforcement
				may be honored by the Board.
7.2.
				In cases of divorce or legal separation, the annuity, refund of accumulated
				contributions, preretirement death benefit, or other payment available to a
				member, retirant or beneficiary of any Retirement System may be divisible by a
				Qualified Domestic Relations Order only as provided in this rule. The Board
				shall not honor as a Qualified Domestic Relations Order any Domestic Relations
				Order seeking to divide a pension benefit of a member, retirant or beneficiary
				which does not meet the requirements of this rule.
7.2.a. In cases of divorce or legal
				separation where the member's or retirant's interest in his or her retirement
				account is subject to division as marital property pursuant to state domestic
				relation law, that portion of the member's or retirant's retirement account
				which constitutes marital property and which is subject to division by a
				Qualified Domestic Relations Order shall be determined by the Board by using
				the following formula, but only after the benefits are available to the member
				or retirant at death, refund, disability retirement or retirement: the marital
				property portion of a member's or retirant's retirement benefit which is
				subject to division shall be computed by the Board by multiplying the Vested
				Accrued Retirement Benefit, less all benefits due to Exempt Service, by a
				fraction, the numerator being the number of years of contributing service
				incurred during the marriage, and the denominator being the total number of
				years of contributing service towards the pension at the date of separation or
				the date of divorce. In determining the marital property portion of a member's
				or retirant's benefit, the numerator used by the Board in the fraction shall
				not include the member's previously withdrawn service credit which was not
				repaid in full as of the date used by the parties as provided for in
				subdivision 7.2.b. of this rule.
7.2.b. In any Qualified Domestic Relations
				Order which meets the requirements of this rule and which seeks to divide a
				member's or retirant's state retirement benefit, the parties, by agreement, or
				the court having jurisdiction of the parties domestic relations proceeding, may
				utilize either the parties' date of separation or the date of the divorce as
				their numerator in the marital share formula required by sub-division 7.2.a. of
				this rule.
7.2.c. For the division
				of state pension benefits between a member or retirant and an alternate payee
				by a Qualified Domestic Relations Order which meets the requirements of this
				rule, the Board shall use a shared payment approach, with the alternate payee
				being paid an agreed upon or court ordered percentage of the marital property
				portion of the member's or retirant's Vested Accrued Retirement Benefit at the
				same time and in the same form as the benefit elected by and paid to the member
				once he or she enters pay status: Provided, That for the Teachers' Defined
				Contribution Plan, the Board shall use a separate payment approach, with the
				interest awarded to the altenate payee being divided upon acceptance of the
				Qualified Domestic Relations Order, and being placed into an individual account
				in the name of the alternate payee for further investment in accordance with
				the alternate payee's direction, and for payment at the time or times that are
				permissible under the plan and applicable federal or state law.
7.2.d. Unless otherwise specifically agreed
				to by the parties in their Qualified Domestic Relations Order or ordered by the
				Court having jurisdiction of the parties' domestic relation proceeding, the tax
				basis and any post-retirement cost of living increases shall be applied to the
				benefit of both the member or retirant and the alternate payee proportionate to
				the division of the Vested Accrued Retirement Benefit.
7.2.e. Qualified Domestic Relations Orders
				shall contain all of the following in order to meet the requirements of this
				rule:
7.2.e.1. The name and last known address
				of the participant and the alternate payee;
7.2.e.2. The name of the state retirement
				plan to which the Qualified Domestic Relation Order applies; and
7.2.e.3. The percentage of the marital
				property portion of the member's or retirant's Vested Accrued Retirement
				Benefit which is to be paid to the alternate payee.
7.2.f. For a Qualified Domestic Relations
				Order to be acceptable and honored by the Board, the order may not require the
				member's retirement plan to provide the alternate payee with any type or form
				of benefit, or any option, not otherwise provided under the plan; may not
				require the plan to provide for increased benefits determined on the basis of
				actuarial value; may not require the plan to pay benefits to an alternate payee
				which are required to be paid to another alternate payee under a prior
				Qualified Domestic Relations Order; may not require the plan to pay benefits to
				an alternate payee in the form of a qualified joint and survivor annuity for
				the lives of the alternate payee and his or her subsequent spouse; and may not
				require the plan to pay the alternate payee more than 100% of the marital
				property portion of the member's benefits, as defined and calculated in
				accordance with subdivision 7.2.a. of this rule, except as permitted by the
				rules as ser forth in subdivision 7.2.g. of this rule.
7.2.g. The following additional restrictions
				apply:
7.2.g.1. Public Employees Retirement
				System and Deputy Sheriff Retirement System: A Qualified Domestic Relations
				Order may not require the member or retirant to elect any particular form of
				pre or post retirement benefit available under the plan, may not prohibit the
				member or retirant from changing the form of benefit if one has already been
				elected and such a change is otherwise permitted by the plan, and may not
				require the alternate payee be treated as the surviving spouse of the member or
				retirant for purposes of any pre or post retirement benefit if such an option
				has been or is elected by the member or retirant. This rule shall not be
				construed to prohibit a member or retirant from entering into a voluntary
				agreement, or being subject to an order from a state court of competent
				jurisdiction, which requires the member or retirant to elect a particular form
				of benefit available to him or her under the plan, or which prohibits the
				member or retirant from changing the form of benefit already elected by him or
				her where such a change is otherwise permitted by the plan, or which requires
				the member or retirant to select the alternate payee as the surviving spouse of
				the member or retirant for purposes of any benefit elected by the member or
				retirant; however, such restriction cannot be contained within a Qualified
				Domestic Relations Order and cannot be enforced by the Board: Provided, That a
				Qualified Domestic Relations Order with respect to a retirant who has already
				retired as of the date of entry of the order may prohibit a retirant who
				elected a joint and survivor annuity option upon retirement from changing said
				joint and survivor annuity to a life annuity upon the retirant's divorce; and
				further provided that a Qualified Domestic Relations Order with respect to a
				retirant who has retired as of the date of entry of the order may also prohibit
				the retirant from naming a new spouse as an annuitant for any retirement
				benefit option available under the plan to a retirant who divorces and
				remarries after retiring.
7.2.g.2.
				Teachers' Retirement System: A Qualified Domestic Relations Order may not
				require the member or retirant to elect any particular form of pre or post
				retirement benefit available under the plan, may not prohibit the member or
				retirant from changing the form of benefit if one has already been elected and
				such a change is otherwise permitted by the plan, and may not require the
				alternate payee to be treated as the surviving spouse of the member or retirant
				for purposes of any pre or post retirement benefit, if such an option has been
				or is elected by the member or retirant. This rule shall not be construed to
				prohibit a member or retirant from entering into a voluntary agreement, or
				being subject to an order from a state court of competent jurisdiction, which
				requires the member or retirant to elect a particular form of benefit available
				to him or her under the plan, or which prohibits the member or retirant from
				changing the form of benefit already elected by him or her where such a change
				is otherwise permitted by the plan, or which requires the member or retirant to
				select the alternate payee as the surviving spouse of the member or retirant
				for purposes of any pre or post retirement benefit available under the plan;
				however, such restrictions cannot be contained within a Qualified Domestic
				Relations Order itself or enforced by the Board: Provided, That a Qualified
				Domestic Relations Order with respect to a retirant who has retired as of the
				date of entry of the order may prohibit the retirant from naming a new spouse
				as an annuitant for any retirement benefit options available under the plan to
				a retirant who divorces and remarries after retiring.
7.2.g.3. West Virginia Municipal Police
				Officers and Firefighters Retirement System; West Virginia State Police
				Retirement System; and Emergency Medical Services Retirement System: A
				Qualified Domestic Relations Order may not require the member or retirant to
				elect any particular form of benefit available under the plan, may not prohibit
				the member or retirant from changing the form of benefit if one has already
				been elected by the member or retirant and such a change is otherwise permitted
				by the plan, and may not require the alternate payee to be treated as the
				surviving spouse of the member or retirant for purposes of any pre or post
				retirement benefit, if such an option is elected by the member or retirant.
				This rule shall not be construed to prohibit a member or retirant from entering
				into a voluntary agreement, or being subject to an order from a state court of
				competent jurisdiction, which requires the member or retirant to elect a
				particular form of benefit available to him or her under the plan, or which
				prohibits the member or retirant from changing the form of benefit already
				elected by him or her, or which requires the member or retirant to select the
				alternate payee as the surviving spouse of the member or retirant for purposes
				of any pre or post retirement benefit available under the plan; however, such
				restrictions cannot be contained within a Qualified Domestic Relations Order
				itself or enforced by the Board.
7.2.g.4. West Virginia State Police Death,
				Disability and Retirement Fund; and Retirement System for Judges of Courts of
				Record: A Qualified Domestic Relations Order may not require the alternate
				payee to be treated as the surviving spouse of the member or retirant for
				purposes of any pre or post retirement benefit available under the
				plan.
7.2.h. In cases of
				divorce or legal separation in which the Court of record enters a division
				order in accordance with the formula and the requirements of this rule, the
				Board shall make separate payments to the member or retirant and the alternate
				payee in accordance with that order. Payments to the alternate payee shall be
				prospective only and shall commence upon pay status to the member or retirant
				and following the Board's receipt and acceptance of the entered Qualified
				Domestic Relations Order.
7.2.i. In
				cases of divorce or legal separation, the Qualified Domestic Relations Order
				shall contain a prohibition against the member obtaining a loan under W. Va.
				Code §
										18-7A-34 or W. Va. Code §
										7-14D-23. Provided, That, a member
				may borrow from that portion of his or her individual account not subject to
				the Qualified Domestic Relations Order.
7.2.j. Procedure: Within 30 days of receipt
				of a Domestic Relations Order, the Board's staff shall notify, in writing, the
				parties identified in the Domestic Relations Order as the member or retirant
				and alternate payee, or their counsel if represented, of the receipt of the
				Domestic Relations Order. At this time. Board staff shall also notify said
				parties or counsel whether the Domestic Relations Order has been determined to
				meet the requirements for a Qualified Domestic Relations Order, or whether
				Board staff requires additional time or additional information to complete such
				a determination. If Board staff determines the Domestic Relations Order fails
				to meet the requirements for a Qualified Domestic Relations Order, said parties
				shall be notified in writing by mail, and such notification shall contain an
				explanation for the denial. In the event the Board determines the Domestic
				Relations Order is not a Qualified Domestic Relations Order, it shall be the
				duty of the member or retirant and alternate payee to cooperate and do all
				things reasonably necessary to devise and submit to the Board an order which is
				acceptable to the Board and which is consistent with this rule and applicable
				law. One or both parties may appeal a determination by Board staff that a
				Domestic Relations Order fails to meet the requirements for a Qualified
				Domestic Relations Order pursuant to the Board's Benefit Determination and
				Appeal Rules.