Divorce, Equitable Distribution & Your Benefits

Introduction

The Retirement System offers defined benefit retirement plans based on years of credited service, salary, membership tier and retirement plan. When a Participant retires, he or she will receive a monthly benefit paid for his or her lifetime and depending on which option is chosen, that of his or her beneficiary.

The pension that a Participant is entitled to receive is a benefit held in trust by the Retirement System and the Participant is considered the beneficiary of that trust. The Participant cannot assign retirement benefits to another person and, because the Retirement System has no legal relationship with an ex-spouse, no payments will be made to an ex-spouse based on a separation agreement or judgment of divorce alone.

However, because a pension is considered marital property and is often divided between spouses when a marriage ends, there are times when the Retirement System will pay a portion of a Participant’s pension to an ex-spouse.

This guide provides basic information about how the Retirement System administers Domestic Relations Orders (DROs). It will also answer questions about some of the benefits provided to Participants, the impact a DRO might have on a Participant’s benefits and the procedures followed when a DRO is received by the Retirement System. You may also find out DRO Frequently Asked Questions helpful.

This information is based on the Retirement System’s current understanding of the law. It is not intended to be a substitute for New York law or the rules and regulations governing the Retirement System, which may be subject to change.

This guide is not intended to provide legal advice to Participants or their ex-spouses and may not be relied upon for that purpose. Participants, ex-spouses and other interested parties are strongly urged to seek the advice of an attorney regarding the matters discussed herein.

The Domestic Relations Order

The New York State Court of Appeals determined that Retirement System benefits constitute marital property and are subject to the equitable distribution provisions of the Domestic Relations Law (Majauskas v. Majauskas, 61 NY2d 481, 474 NYS2d 699). Therefore, we will honor a properly drawn Domestic Relations Order (DRO) issued by a New York State court. (For information about DROs issued by other states, see Out of State Orders.)

A Domestic Relations Order (DRO) is a court order issued after a final judgment of divorce that provides the ex-spouse of a Participant with a share of the Participant’s benefit upon retirement. The DRO may also require a Participant to designate the ex-spouse as a beneficiary of a pre-retirement death benefit, a post-retirement death benefit (if applicable) or as the beneficiary of the Participant’s retirement option.

Please note that, unlike a private pension plan, the rights of membership in the Retirement System belong only to the Participant. The spouse of a Participant has no statutory rights or protections. As a governmental plan, the Retirement System is exempt from the provisions of the Employees’ Retirement Income Security Act (ERISA), the Retirement Equity Act of 1984 and the Internal Revenue Code (IRC) that provide for Qualified Domestic Relations Orders (QDROs) (see ERISA Section 4 (b) and IRC Section 414 (P) (9)). The spousal notification, spousal consent and surviving spouse protections of ERISA do not apply in the case of a state governmental plan. All rights given to an ex-spouse must be set forth explicitly in the DRO or they will not exist for him or her.

Dual Membership in the Retirement System

The New York State and Local Retirement System is comprised of two distinct systems:

• New York State and Local Employees’ Retirement System; and
• New York State and Local Police and Fire Retirement System.

If a Participant is a member of one of the above Systems, the DRO may be directed to the “New York State and Local Retirement System” regardless of the Participant’s system membership.

If a Participant has dual membership and is eligible to receive pension benefits from both systems, but the DRO is applicable to only one membership, then the DRO must specifically identify the appropriate system.

Please note, all sample DRO language provided in this guide is directed to "New York State and Local Retirement System".

The Ex-spouse’s Share

According to New York State law, pension benefits earned during a marriage are marital assets subject to equitable distribution in the event of a divorce. The ex-spouse is entitled to a share of the Participant’s retirement benefit. A Participant and ex-spouse may establish a retirement benefit distribution that is satisfactory. The most commonly used equitable distribution formula for a public pension was established by the State Court of Appeals in Majauskas v. Majauskas. This formula provides an ex-spouse with one-half of that part of a Participant’s pension earned during the marriage.

The Majauskas Formula

50% × years of service credit accrued during marriage (numerator) ÷ total service credit at time of retirement (denominator)

For example, if the Participant accrued 15 years of service while married, and retires with 30 years of total service, the ex-spouse’s share will be 25 percent of the pension (50 percent × 15/30). The Majauskas formula may be modified by the court, or by agreement between the Participant and ex-spouse. The Retirement System does not require use of this formula. There are other ways to distribute your pension benefit.

Other equitable distribution choices:

• A flat dollar amount. This “locks in” an amount for the ex-spouse that will not vary if the Participant’s salary rises significantly prior to retirement. It will also affect the ex-spouse’s right to a share of the Participant’s cost-of-living adjustment (COLA).
• A modification of the standard Majauskas formula (see above). Parties can negotiate the factors of the Majauskas equation.
• A share calculated as of a specific date. The Retirement System can calculate a hypothetical retirement benefit using a Participant’s final average salary and service credit as of a specific date. The date most commonly used is the commencement date of the divorce action. An ex-spouse’s distribution can be calculated using the hypothetical retirement benefit. Any pension factor and age reductions applied to the Participant’s benefit upon retirement will also be applied to ex-spouse’s distribution. Any post-divorce salary and service increases will not be used in the calculation of the ex-spouse’s distribution. This generally provides the ex-spouse with a smaller portion of the Participant’s actual retirement benefit.

If the intent is to freeze the ex-spouse’s share of the pension to the salary and service levels in place at the time of the commencement date of the divorce action, the following paragraphs should appear in the Domestic Relations Order:

ORDERED, that at such time as PARTICIPANT has retired from and is actually receiving a retirement benefit from the Retirement System; the Retirement System, in accordance with the formula devised in the case of Majauskas v. Majauskas, 61 NY2d 481(1987), is hereby directed to calculate a hypothetical service retirement, based on the PARTICIPANT’S earnings and years of credited service as of the date of commencement of the action for divorce. The retirement benefit shall be calculated in the same manner as a normal service pension would be calculated using the factors in place when calculating the PARTICIPANT’S actual retirement benefit. From this hypothetical service retirement, the Retirement System is hereby directed to pay to the ALTERNATE PAYEE that portion of the PARTICIPANT’S monthly retirement benefit, which is equal to 50 percent of a fraction; and it is further

ORDERED, that the numerator of the fraction shall be _______ months [must provide the specific number of months] and the denominator shall be the total number of months of service credit which the PARTICIPANT had as of the commencement of the action for divorce. The term “retirement benefit” as used herein, shall be deemed to include any annuity as well as supplemental retirement benefits which are paid by the System to PARTICIPANT;

DROs and Service Credit

Article 19, Incentive and Purchased Service

Additional service credit, whether given because of an incentive or purchased, may affect the calculation of the ex-spouse’s share.

In the case of service credit provided by Article 19 or service credit awarded pursuant to an incentive, the Retirement System will not apportion the additional service where the numerator (marital period) is represented as an exact number of months or years. Where the numerator is an open date period (i.e., service accrued between the date of marriage and the date of the commencement of the divorce action), the Article 19 and/or incentive service will be apportioned by prorating this service in the numerator and including the total service credit in the denominator. As a general rule, DROs that lock in a flat dollar distribution (rather than percentage) or those that calculate the ex-spouse’s share using a hypothetical date, will not be affected by service or salary enhancements.

If military service is purchased, the Participant’s total service credit and monthly benefit at retirement is increased to reflect the additional service.

Example:

A Participant’s obligations regarding any Article 19 incentive or military service should be addressed specifically in the DRO.

Disability Retirement

The Retirement System does not decide if a particular benefit constitutes marital or separate property in a matrimonial action. In a case involving the award of an accidental disability retirement benefit, the Court of Appeals has held that, to the extent the accidental disability award is compensation for personal injuries, it is separate property (Dolan v. Dolan, 78 NY2d 468 (1991)). Courts have further held that the party receiving the pension benefit and seeking to avoid equitable distribution bears the burden of proving that the pension is separate property. The entire benefit is presumed to be marital property subject to equitable distribution (Allwell v. Allwell, 277 AD2d 789 (3d Dept. 2000); Palazzolo v. Palazzolo, 242 AD2d 688 (2d Dept. 1997); Mylett v. Mylett, 163 AD2d 463 (3d Dept. 1990)).

Many disability benefits administered by the Retirement System are calculated without regard to the service a Participant has upon retirement, but instead are a fixed percentage of the Participant’s final average salary, regardless of actual service at retirement. The Third Department has held that a disability pension may still be subject to equitable distribution even if the pension is calculated as a flat percentage of the final average salary and is not based on service (Peek v. Peek, 301 AD2d 201 (3d Dept. 2002)).

If the intent is to limit the ex-spouse’s distribution to what a service retirement would have provided, then the DRO should require the Retirement System to calculate a hypothetical service retirement benefit based on salary and service accrued to the date of the disability award (without penalty for early retirement). Under certain circumstances, a hypothetical service retirement benefit may pay a greater monthly benefit than a disability benefit. The Retirement System can calculate an ex-spouse’s share based on the lesser of the two benefits.If the DRO is silent on this issue, the Retirement System will take the ex-spouse’s distribution from the Participant’s disability retirement benefit. It’s important to note that a disability retirement benefit does not revert to a service retirement benefit when the Participant reaches the service retirement eligibility age.

If the Retirement System is ordered to calculate a retirement benefit based on the lesser of the hypothetical service retirement benefit or the disability benefit, the following paragraphs should appear in the DRO and the appropriate System should be identified (i.e., New York State and Local Employees’s Retirement System or New York State and Local Police and Fire Retirement System):

ORDERED, that should the PARTICIPANT retire on a disability retirement benefit from New York State and Local Retirement System, the Retirement System in accordance with the formula devised in the case of Majauskas v. Majauskas, 61 NY2d 481(1987), is hereby directed to calculate a hypothetical service retirement benefit, based on the PARTICIPANT’S earnings and years of credited service. His or her retirement benefit shall be calculated in the same manner as a normal service pension would be calculated without any reduction for ordinary termination of employment. From this hypothetical service retirement benefit, the Retirement System is hereby directed to pay to the ALTERNATE PAYEE that portion of the PARTICIPANT’s monthly retirement benefit which is equal to ___ percent of a fraction; and it is further

ORDERED, that should the PARTICIPANT’S hypothetical service retirement benefit exceed the PARTICIPANT’S disability benefit, then the Retirement System is directed to pay the ALTERNATE PAYEE that portion of the PARTICIPANT’S monthly disability retirement benefit which is equal to ____ percent of a fraction; and it is further

ORDERED, that the numerator of the fraction shall be _______ months [must provide the specific number or months] and the denominator shall be the total number of months of service credit which the PARTICIPANT had at the time of retirement. The term “retirement benefit” as used herein, shall be deemed to include any annuity as well as any supplemental retirement benefit which is paid by the Retirement System to PARTICIPANT’s and it is further

Other Benefits Potentially Affected

Beneficiary Designations

Effective July 7, 2008, the Participant’s designation of a spouse as beneficiary of certain benefits is revoked as a result of divorce, annulment or judicial separation and the Retirement System receives written notice. The designation is revoked regardless of when the final decree of divorce, annulment or judicial separation was entered, unless a DRO specifies otherwise.

Designations affected are:

• Pre-retirement Ordinary Death Benefit (all Tiers);
• Post-retirement Ordinary Death Benefit (ERS Tiers 2, 3, and 4);
• Cash Refund Initial Value option (Tier 1);
• Cash Refund Contributions option (Tiers 1 and 2);
• Five and Ten Year Certain options (all Tiers);
• Certain alternative options with beneficiaries that can be changed.

If a Participant wishes to keep an ex-spouse as beneficiary, the Participant must re-designate him or her after the date of the divorce, annulment, or judicial separation. Contact us for the appropriate form.

If a Participant and an ex-spouse remarry each other, the designation of the ex-spouse as beneficiary is reinstated, provided the Participant has not made another designation during the time the marriage was dissolved.

Ordinary (Pre-Retirement) Death Benefit

The Retirement and Social Security Law provides for a pre-retirement ordinary death benefit payable to the Participant’s last designated beneficiary(ies). In order to be effective, the Participant must properly execute and file the appropriate designation form with the Retirement System. (Retirement and Social Security Law, Sections 60, 360, 508, 606).

A DRO may direct a Participant to designate the ex-spouse to receive a portion of the ordinary death benefit. The ex-spouse’s portion is generally calculated with reference to the Majauskas formula but may vary based on the party’s agreement.

The DRO should be filed with the Retirement System as soon as possible after the DRO is entered as an official court document. Prompt filing of the DRO provides notice to the Retirement System of the Participant’s required beneficiary obligation.

The Participant should contact the Retirement System for the opportunity to designate additional beneficiary(ies), of choice, for any remainder of the death benefit after the ex-spouse’s share is determined. The Retirement System will prepare a customized designation form in compliance with the DRO and Participant’s additional beneficiary(ies) designations.

Accidental Death Benefit

The beneficiaries of an accidental death benefit are statutorily designated (Retirement and Social Security Law, Sections 61, 361, 509 and 607). The Retirement System has no discretion to pay the ex-spouse. Only the statutory beneficiaries may receive this benefit, in spite of the existence of a filed DRO.

For a Tier 1 or 2 Employees’s Retirement System Participant, the accidental death benefit will be paid respectively to:

• The surviving spouse; or
• Any children under age eighteen; or
• Dependent parents.

For a Tier 1 or 2 Police and Fire Retirement System Participant, the accidental death benefit will be paid respectively to:

• The surviving spouse; or
• Any children under age eighteen; or
• Any children under age twenty-three, if a full-time student; or
• Dependent parents.

For a Tier 3, 4 or 5 Participant, the accidental death benefit will be paid respectively to:

• The surviving spouse who has not renounced survivorship rights in a separation agreement; or
• Any surviving children until age twenty-five; or
• Dependent parents; or
• Any person until the age of twenty-one who qualified as a dependant on the final federal income tax of the Participant or the return filed the year preceding the date of death.

ERS Post-Retirement Ordinary Death Benefit

Most Tier 2, 3, 4 or 5 Employees’s Retirement System Participants are covered by a post-retirement ordinary death benefit. The benefit is payable to the beneficiary(ies) designated by the Participant. If a Participant is required to provide an ex-spouse with a portion of the ordinary death benefit after retirement, the following paragraph should appear in the DRO:

ORDERED, that the PARTICIPANT shall designate the ALTERNATE PAYEE as the PARTICIPANT’S beneficiary so that, in the event an ordinary death benefit becomes payable post-retirement, the ALTERNATE PAYEE shall be entitled to a pro rata share calculated according to____ (provide the method for determining the ALTERNATE PAYEE’S share of the PARTICIPANT’S retirement benefit, a specific dollar amount or a percentage), and it is further;

The DRO should be filed with the Retirement System as soon as possible after the DRO is entered as an official court document. Prompt filing of the DRO provides notice to the Retirement System of the Participant’s required beneficiary obligation.

The Participant should contact the Retirement System for the opportunity to designate additional beneficiary(ies), of choice, for any remainder of the death benefit after the ex-spouse’s share is determined. The Retirement System will prepare a customized designation form in compliance with the DRO and Participant’s additional beneficiary(ies) designations.

Retirement Option

At retirement, a Participant must choose one option which determines how the retirement benefit will be paid. There are several options for the Participant to choose from and all options will pay the Participant a monthly benefit for life. The Single Life Allowance is the maximum benefit available to the Participant. The Participant can choose to receive a reduced monthly amount to provide for payment to a designated beneficiary after the Participant’s death.

Some DROs require a Participant to elect a retirement option that provides a continuing benefit to the ex-spouse should the Participant predecease him or her.

The most common option elected is a Special Joint Allowance, which provides the ex-spouse with the same share of the retirement benefit that he or she had been receiving while the Participant was alive.

The Participant may also elect a Pop-Up Special Joint Allowance that provides the ex-spouse with a share as described above, but the benefit payment to the Participant will “pop-up” to a Single Life Allowance should the ex-spouse predecease the Participant.

The parties should be aware that:

1. The Participant cannot change the option beneficiary once the retirement is effective; and
2. The Participant cannot designate additional option beneficiaries (i.e., if Participant remarries) even though the ex-spouse may only be receiving a small share of the overall pension benefit.

For a full description of each retirement option, see Option Descriptions.

Who “Pays” the Cost of the Option?

The cost of a survivorship option can be borne by either party or shared proportionately by the parties.

Example: Participant bearing the option cost

ORDERED, that at such time as PARTICIPANT has retired from and is actually receiving a retirement benefit from the New York State and Local Retirement System, the New York State and Local Retirement System, in accordance with the Equitable Distribution Law, and in accordance with the formula devised in the case of Majauskas v. Majauskas is directed to pay to ALTERNATE PAYEE from PARTICIPANT’s retirement benefit, ______ percent of a fraction of PARTICIPANT’s maximum monthly retirement benefit prior to any optional modification; and it is further

Example: Cost of the option being apportioned

ORDERED, that at such time as PARTICIPANT has retired from and is actually receiving a retirement benefit from the New York State and Local Retirement System, the New York State and Local System, in accordance with the Equitable Distribution Law, and with the formula devised in the case of Majauskas v. Majauskas is directed to pay to the ALTERNATE PAYEE from PARTICIPANT’s retirement benefit, ______ percent of a fraction of PARTICIPANT’s gross monthly retirement benefit; and it is further

Example: Ex-spouse bearing the option cost

ORDERED, that at such time as PARTICIPANT has retired from and is actually receiving a retirement benefit from the New York State and Local Retirement System, the New York State and Local System, in accordance with the Equitable Distribution Law, and in accordance with the formula devised in the case of Majauskas v. Majauskas is directed to pay to the ALTERNATE PAYEE from PARTICIPANT’s retirement benefit, ______ percent of a fraction of PARTICIPANT’s maximum monthly retirement benefit; and it is further

ORDERED, that the cost of the required survivorship option shall be borne by the ALTERNATE PAYEE; and it is further

In the rare instances where the parties choose to share the cost of the option equally (50/50), the following language should be used:

Example: Cost of the option shared equally (50/50)

ORDERED, that at such time as PARTICIPANT has retired from and is actually receiving a retirement benefit from the New York State and Local Retirement System, the New York State and Local System, in accordance with the Equitable Distribution Law, and in accordance with the formula devised in the case of Majauskas v. Majauskas is directed to pay to the ALTERNATE PAYEE from PARTICIPANT’s retirement benefit, ______ percent of a fraction of PARTICIPANT’s maximum monthly retirement benefit; and it is further

ORDERED, that the cost of the required survivorship option shall be borne equally by the parties; and it is further

Should the Participant choose to elect the “pop-up” feature, the additional cost can be borne solely by the Participant.

Example: Participant bearing the cost of a “pop-up”

ORDERED, that should the PARTICIPANT elect the pop-up feature, any cost associated with that election shall be borne by the PARTICIPANT; and it is further

Cost-of-Living Adjustment (COLA)

An ex-spouse may be entitled to a distribution of a Participant’s COLA, not as an option beneficiary, but as part of the overall distribution from the Participant’s monthly retirement benefit while the Participant is still living. This requires a review of a DRO to determine whether the order permits, forbids, or requires such a distribution. Upon request, the Retirement System will review an order to determine if a COLA is permitted.

Please note that the Retirement System will interpret general terms in a DRO as intent to provide an ex-spouse with a share of the COLA, unless otherwise indicated. For example, the Retirement System will interpret DROs that define the retirement benefit to include any “supplemental” payments as intent to provide the ex-spouse with COLA. If the intent is to prohibit an ex-spouse from receiving a share of the COLA, the order must be drafted to reflect that intent.

If a DRO awards an ex-spouse a flat dollar amount, no COLA will be payable unless the DRO specifically directs the Retirement System to provide COLA increases.

The COLA legislation (Laws of 2000, Chapter 125) does not permit a non-spouse option beneficiary to receive a COLA after the Participant’s death. Therefore, an ex-spouse receiving a COLA distribution from the Participant’s monthly retirement benefit while the Participant is alive, will not be entitled to any COLA including COLAs previously awarded, as an option beneficiary if the Participant predeceases him or her.

Refunds

Occasionally, a Participant may be entitled to a refund of contributions due to tier reinstatement, withdrawal, transfer of membership, excess contributions, etc. If there is a DRO on file, the Matrimonial Unit will determine whether the entire refund can be paid to the Participant or whether a portion must be distributed to the ex-spouse. As a rule, if the DRO is silent on the issue of a refund of contributions, the refund will be sent to the Participant only.

If the ex-spouse is entitled to a portion of the refunded contributions, the following paragraph should appear in the order:

ORDERED, that in the event the PARTICIPANT becomes eligible to receive a return of accumulated annual contributions plus interest, the ALTERNATE PAYEE shall receive his or her pro rata share of the accumulated contributions plus interest of the refund; and it is further

Loans

All ERS and PFRS members who meet eligibility requirements can borrow up to 75 percent of their contribution balance. If the Participant has an outstanding loan balance at retirement, the annual benefit will be permanently reduced for each loan taking into consideration the Participant’s age at retirement and whether the Participant retired under a service or disability benefit. Please see the Tiers 3, 4 & 5 Loan Application (RS5025-A) for approximate annual reductions. Accordingly, the ex-spouse’s share of the distribution will also be reduced unless the DRO provides the ex-spouse with a share calculated without reference to any outstanding loans.

The Retirement System may not be able to provide an ex-spouse with his or her full equitable share of the pension if the reduction for the outstanding loan is exceptionally large. Under these circumstances, a previously accepted DRO may be rejected at retirement due to an insufficiency of funds for the ex-spouse.

A DRO may prohibit the Participant from taking loans.

Retirement Estimates

Upon the Participant’s written request to the Retirement System’s Equitable Distribution Estimates Unit, the Participant will be provided with an estimate of his or her Single Life Allowance retirement benefit using current salary and service information. Due to an unprecedented number of retirement applications, multiple estimates or estimates which are highly speculative in nature (i.e., those which would project benefits to some future hypothetical retirement date) cannot be accommodated. Please consult a private actuary or use the retirement benefit calculator on our website for a projection of anticipated benefits. An estimate request should be submitted to:

Estimated (Advance) Payments

The processing of a retirement can take several months to complete. In the interim, advance or partial payments based on estimated benefits are paid to the Participant. If the Participant has already selected his or her retirement option, the advance payment will be 90 percent of the estimated monthly benefit for that option. If the Participant has not yet selected an option, the advance payment will be 80 percent of the Single Life Allowance. An ex-spouse does not receive advance payments. Payments to the ex-spouse will only begin when the calculation of the retirement benefit is completed.

If a DRO is filed before the retirement benefit is finalized, the ex-spouse will be paid retroactively to the Participant’s effective date of retirement. However, if a DRO is not received prior to the final calculation of the retirement benefit, payments to the ex-spouse will not be retroactive unless the DRO states this intention specifically and sets forth a repayment schedule.

Violating a DRO (Retirement and Social Security Law Section 803-a)

If the Participant elects an option or makes a beneficiary designation in violation of a pre-existing DRO, separation agreement, or Stipulation of Settlement, RSSL Section 803-a permits the Comptroller, at his or her discretion, to make the required change in accordance with the DRO (upon receipt of a subsequent court order directing the Comptroller to make the change).

Applicability of RSSL Section 803-a relief is a fact-specific determination involving a review of all of the relevant documents of the matrimonial action: the judgment of divorce, stipulation of settlement and/or separation agreement, and all filed DROs.

If RSSL Section 803-a relief is awarded, the Participant’s retirement election will be changed and the retirement benefit will be recalculated. Any overpayments made to the Participant and ex-spouse (if applicable) prior to the recalculation must be recouped by the Retirement System from the Participant, the Participant’s estate and/or the ex-spouse (if applicable).

Submitting a DRO

A proposed DRO should be submitted to the Matrimonial Bureau for review and approval prior to being forwarded to the court for signature. If approved by the Retirement System, the proposed DRO must then be signed by a Supreme Court judge and entered as an official court document. The Retirement System requires a certified photocopy of the final order, which we will keep on file. DROs should be submitted to:

If the Participant is already receiving a pension benefit at the time the final DRO is submitted, the ex-spouse’s distribution will commence with the next available pension payroll period. If an ex-spouse is entitled to a retroactive distribution, the DRO should clearly state that intent and provide a payment schedule setting forth an additional deduction to be taken from the Participant’s retirement allowance until the ex-spouse’s retroactive payment is satisfied in full.

Retirement System policy requires proof of divorce before implementation of a DRO. Please provide the Retirement System with a certified photocopy of the Judgment of Divorce.

Obtaining Information about a Participant’s Benefits

The Retirement System cannot release certain information regarding a Participant without a signed authorization and release from the Participant. The authorization must:

1. Specifically be addressed to the New York State and Local Retirement System;
2. Specifically identify the party(ies) authorized to receive information; and
3. Specifically identify the information to be released.

The Retirement System will not accept a general release.

Alternatively, the information sought may be obtained by subpoena. In accordance with New York State Civil Practice Law and Rules Section 2307, a Subpoena Duces Tecum to be served on a bureau or department of the State of New York must be “So Ordered” by a Justice of the Supreme Court in the district where the records are located or, for actions within New York State, by a Judge of the Court in which the action is placed on trial. The Retirement System will reject an attorney-issued subpoena.

Additionally, service by mail is not effective without a prior attempt at personal service.

To be effective, a Judicial Subpoena Duces Tecum must be “So Ordered” and personally served on the New York State and Local Retirement System at our offices in Albany or New York City:

Avoiding a Rejected DRO

The Retirement System, as a governmental plan, has discretion to reject a DRO. Orders that are vague, contain inconsistent or contradictory provisions, or are contradictory to plan requirements or New York State law, will be rejected. Reasons for rejection may include:

• Qualified Status — References to a qualified status, the Employee’s Retirement Income Security Act (ERISA), the Retirement Equity Act of 1984 or the provisions of the Internal Revenue Code (IRC) must be deleted from any proposed or final DRO.
• Assignment — Retirement System Participants are prohibited from making an assignment of retirement benefits (Retirement and Social Security Law Section 110). A distribution may be made following the specific direction of the court only.
• Earliest Retirement Age — The earliest date benefits will be paid to a Participant or an ex-spouse is the Participant’s actual date of retirement. Benefits cannot commence at the Participant’s earliest eligible retirement age. The laws of the Employee’s Retirement Income Security Act (ERISA) and the Internal Revenue Code  (IRC) that provide for pension distributions at the earliest eligibility age are not applicable to governmental plans such as the Retirement System.
• Lump Sum Distribution — The Retirement System cannot accept references to lump sum distributions. Retirement System benefits are payable on a monthly basis and, unless the Participant is a member of the Police and Fire Retirement System in a Special 20- or 25- Year Plan which allows for a partial lump sum distribution, a lump sum distribution is not possible.
• Surviving Spouse Language — The Retirement System cannot accept references to treating the ex-spouse as a surviving spouse. The provisions of Employees’ Retirement Income Security Act (ERISA) and the Internal Revenue Code (IRC) that create benefits on behalf of a surviving spouse do not apply to governmental plans such as the Retirement System. Accordingly, we recognize no special interest in the status of “surviving spouse.”
• Separate Accounts — The Retirement System does not maintain separate accounts for Participants and ex-spouses. All of the assets of the Retirement System are held for investment purposes in the Common Retirement Fund. Upon retirement, a Participant’s retirement benefit is calculated according to his or her retirement plan and the amount necessary to provide for the pension is transferred to the pension reserve fund. The retirement benefit and any distributions taken in favor of the ex-spouse are then paid on a monthly basis from the pension reserve fund. Accordingly, there is no statutory authority to establish a separate account for an ex-spouse.
• Ex-spouse Beneficiary Designation — An ex-spouse is not permitted to designate a beneficiary or elect a form of payment. There is no provision in the Retirement and Social Security Law for an ex-spouse to designate a beneficiary or to elect a method of payment. The qualifications and rights of membership are established by statute (see Retirement and Social Security Law Article 2, Title 5). There is no authority given to grant the rights and privileges of membership to a third party.
• Spousal Consent — Unlike private pension plans, governmental plans are not required to obtain a spouse’s consent to the waiver of benefits.
• Renunciations — The beneficiary under a “pop-up” retirement option election may not renounce his or her beneficiary status as a means to prematurely recalculate the Participant’s retirement benefit to the Single Life Allowance Option.
• Option Elections — If a Participant is already retired at the time a DRO is submitted to the Retirement System and the Participant’s option election at the time of retirement was not made in violation of a pre-existing court order or agreement, then his or her option election is irrevocable. The Retirement System cannot accept a DRO requiring the Participant to designate the ex-spouse as a beneficiary under another option election.

Retirement Options

Information Common to All Options

• No matter which option is elected, one-twelfth of the Participant’s annual benefit will be paid monthly for as long as the Participant lives.
• By operation of law, upon the death of an ex-spouse, all payments revert back to the Participant.
• After meeting COLA eligibility requirements, a spouse of a deceased retiree who is the beneficiary under a survivorship option, is entitled to one-half the COLA amount that would have been paid to the retiree. COLA payments to an ex-spouse will cease upon the Participant’s death.

Option Descriptions

Single Life Allowance (all tiers)

This option provides the maximum benefit. All payments will stop upon the Participant’s death. The proportionate amount of the monthly allowance owed to the Participant as of the date of death will be payable to the Participant’s ordinary death benefit beneficiary(ies). For Tier 1 members, ordinary death benefit designations may only be changed prior to retirement.

Cash Refund — Contributions (Tiers 1 & 2)

If the Participant dies before receiving annuity payments equal to his or her accumulated contributions, the option beneficiary(ies) will receive the accumulated contributions balance. The option beneficiary(ies) may choose payment either as a lump sum or as a monthly payment that ends when the balance is exhausted. The pension portion of the Participant’s benefit will cease at his or her death. The option beneficiary(ies) may be changed at any time.

Cash Refund — Initial Value (Tier 1)

If the Participant dies before receiving retirement benefit payments equal to the initial value of his or her benefit, the balance will be paid to the option beneficiary(ies). The option beneficiary(ies) may choose payment as either a lump sum or a monthly benefit that ends when the remainder of the calculated value of the benefit is exhausted.  The beneficiary(ies) may be changed at any time.

Five Year Certain (all tiers)

This option provides the Participant with a reduced lifetime benefit and the additional guarantee that, if he or she lives for less than five years after retirement, payments in the same amount he or she was receiving (without COLA) will be made to the option beneficiary(ies) for the balance of the five-year period. If the Participant lives more than five years after retirement, he or she will continue to receive payments for his or her lifetime, but no payments will be made to any option beneficiary(ies) or estate when the Participant dies. The option beneficiary(ies) may be changed at any time. If the option beneficiary(ies) dies within the five-year period and the Participant dies without naming a new option beneficiary(ies), any amount payable will be paid to the Participant’s estate.

Ten Year Certain (all tiers)

This option provides the Participant with a reduced lifetime benefit and the additional guarantee that, if he or she lives for less than ten years after retirement, payments in the same amount he or she was receiving (without COLA) will be made to the option beneficiary(ies) for the balance of the ten-year period. If the Participant lives more than ten years after retirement, he or she will continue to receive payments for his or her lifetime, but no payments will be made to any option beneficiary(ies) or estate when the Participant dies. The option beneficiary(ies) may be changed at any time. If the option beneficiary(ies) dies within the ten-year period and the Participant dies without naming a new option beneficiary(ies), any amount payable will be paid to the Participant’s estate.

*Joint Allowance — Full (all tiers)

This option provides the Participant with a reduced lifetime benefit based on the Participant’s and the option beneficiary’s dates of birth. If the Participant dies, the option  beneficiary will receive the Participant’s total monthly benefit for the rest of his or her life. If the option beneficiary dies before the Participant, all payments will stop at the Participant’s death. The Participant can designate only one option beneficiary and the option beneficiary cannot be changed.

*Joint Allowance — Half (all tiers)

This option provides the Participant with a reduced lifetime benefit based on the Participant’s and the option beneficiary’s dates of birth. If the Participant dies, the option beneficiary will receive one-half of the Participant’s monthly benefit for the rest of his or her life. If the option beneficiary dies before the Participant, all payments will stop at the Participant’s death. The Participant can designate only one option beneficiary and the option beneficiary cannot be changed.

*Pop-Up/Joint Allowance — Full (all tiers)

This option provides the Participant with a reduced lifetime benefit based on the Participant’s and the option beneficiary’s dates of birth. If the Participant dies, the option beneficiary will receive the Participant’s total monthly benefit for the rest of his or her life. If the option beneficiary dies before the Participant, the Participant’s benefit is increased to the amount that would have been payable under the Single Life Allowance option, and all payments will stop at the Participant’s death. The Participant can designate only one option beneficiary and the option beneficiary cannot be changed.

*Pop-Up/Joint Allowance — Half (all tiers)

This option provides the Participant with a reduced lifetime benefit based on the Participant’s and the option beneficiary’s dates of birth. If the Participant dies, the option beneficiary will receive one-half of the Participant’s monthly benefit for the rest of his or her life. If the option beneficiary dies before the Participant, the Participant’s benefit is increased to the amount that would have been payable under the Single Life Allowance option, and all payments stop at the Participant’s death. The Participant can designate only one option beneficiary and the option beneficiary cannot be changed.

*Joint Allowance — Partial (Tiers 3 and 4)

This option provides the Participant with a reduced lifetime benefit based on the Participant’s and the option beneficiary’s dates of birth. The Participant must elect the continuance of 75, 50 or 25 percent of the retirement benefit payable to the option beneficiary. If the Participant dies, the option beneficiary will receive 75, 50 or 25 percent of the amount the Participant had been receiving for the rest of his or her life. If the option beneficiary dies before the Participant, all payments stop at the Participant’s death. The Participant can designate only one option beneficiary and the option beneficiary cannot be changed.

*Special Joint Allowance

This option provides the Participant with a reduced lifetime benefit based on the Participant’s and the option beneficiary’s dates of birth. The continuance payable to the option beneficiary after the Participant’s date of death is customized. This election is typically required if the Participant is directed to provide the ex-spouse with a continued marital share of the retirement benefit. If the option beneficiary dies before the Participant, all payments stop at the Participant’s death. The Participant can designate only one option beneficiary and the option beneficiary cannot be changed.

*Pop-Up/Special Joint Allowance

This option provides the Participant with a reduced lifetime benefit based on the Participant’s and the option beneficiary’s dates of birth. The continuance payable to the option beneficiary after the Participant’s date of death is customized. This election is typically required if the Participant is directed to provide the ex-spouse with a continued marital share of the retirement benefit. If the option beneficiary dies before the Participant, the Participant’s benefit is increased to the amount that would have been payable under the Single Life Allowance option and all payments stop at the Participant’s death. The Participant can designate only one option beneficiary and the option beneficiary cannot be changed.

*We require documentary proof of the beneficiary’s date of birth if this option is selected.

Partial Lump Sum Option

Article 21 of the Retirement and Social Security Law established a new retirement option for certain Police and Fire Retirement System members. The Partial Lump Sum Option (PLS) allows eligible Participants to receive a portion of their retirement benefit in a lump sum at retirement, resulting in a reduced monthly benefit. Eligible Participants who choose PLS must also choose an option for the payment of their monthly benefit.

A Participant with a DRO can choose the PLS option. If the DRO addresses the PLS, the Retirement System will review the terms of the DRO and comply with the order.

If the DRO does not address the PLS, the ex-spouse’s share will be calculated as if no PLS was taken. The Retirement System will use a hypothetical calculation to determine the ex-spouse’s share to avoid reductions resulting from the Participant’s PLS election. The ex-spouse will receive the same amount that the Judge ordered in the DRO. The Participant will receive the PLS distribution at retirement and only his or her portion will be reduced by the PLS election.

If the DRO does not address the PLS and the ex-spouse wants to receive a portion of the PLS distribution or if there are any other objections involving the PLS payout, the DRO will need to be revised. The Retirement System will contact the Participant and the ex-spouse and give them 45 days to return to Court and serve the Retirement System with either a Temporary Restraining Order or an amended DRO to provide the ex-spouse with a portion of the PLS distribution. Otherwise the Retirement System will process the PLS as described above.

By operation of law, upon the death of an ex-spouse, all payments revert back to the Participant.

Out of State Orders

The Retirement System requires the registration of out-of-state orders with a New York court prior to submission. In lieu of registration, the Retirement System will accept an out-of-state order if a notarized Consent to New York Jurisdiction and Release form is executed by the Participant consenting to the laws of New York State.

The Consent to New York Jurisdiction and Release form must authorize the Retirement System to deduct payments from the Participant’s retirement benefit according to the provisions of the out-of-state DRO and release the Retirement System from any liability whatsoever as a consequence of any payments based upon that DRO. If consent to New York jurisdiction cannot be obtained, an out of state DRO must be registered in a New York Court with jurisdiction over the Retirement System.

CONSENT TO NEW YORK JURISDICTION AND RELEASE

I, ________________________, as Participant in the New York State and Local Retirement System, do hereby consent that the Domestic Relations Order (DRO) issued by Judge _____________ ____________ in the State of __________________, County of __________________ dated ____________ be treated by the New York State and Local Retirement System as a Domestic Relations Order pursuant to the Equitable Distribution Law of the State of New York.

I further authorize the New York State and Local Retirement System to deduct payments from my monthly retirement benefit pursuant to the provisions of the DRO identified above and I hereby release the New York State and Local Retirement System from any liability whatsoever as a consequence of any payments based upon the DRO.

________________________(Participant’s signature)

This acknowledgment must be completed by a Notary Public.

State of _________________________,ss:

County of ________________________,

On the ______ day of _______________________, in the year ______, before me personally appeared _______________________ known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her capacity, and that by his /her signature on the instrument, the individual or the person on behalf of which the individual acted, executed the instrument.

________________________

Notary Public, State of ____________________ (please affix stamp)

Sample DROs

DRO Sample 1: An example of a DRO that would provide the ex-spouse with a monthly Majauskas distribution upon the Participant’s retirement as well as an interest in both the pre-retirement Ordinary Death benefit and a post-retirement survivorship benefit. The cost of both the post-retirement survivorship benefit and cost-of-living adjustments would be apportioned between the parties.

DRO Sample 1

At a Matrimonial Special Term of the Supreme Court Part ___, held in and for the County of ___________ at ______________, ____________, New York on the _______ day of ________, 20____

PRESENT: HON. ___________________Justice Presiding

STATE OF NEW YORK: County of: ___________________________

___________________________,Plaintiff,

DOMESTIC RELATIONS ORDER INDEX NO. __________ CAL. NO. ____________

___________________________, Defendant.

__________________________________________

This Court having granted a Judgment of Divorce on the ______ day of _____________, 20____, by the HON. ___________________, and filed in the __________ County Clerk’s Office on the _______ day of __________, 20____, and upon the stipulation entered into by the parties and ratified in open court on the _______ day of ___________, 20____, and it appearing to the court as follows:

1. The parties hereto were formerly husband and wife.
2. This order is made pursuant to the Judgment of Divorce granted on the _____ day of _________, 20____, and filed in the ____________ County Clerk’s Office on the ________ day of _____________, 20____, which Judgment of Divorce incorporated but did not merge the provisions of an oral stipulation entered into and ratified in open court on the ______ day of ____________, 20____.
3. The parties hereto were married on the _____ day of ______________, ____ and an action for a divorce was commenced on the _____ day of ____________, ____.
4. _______________________ is hereafter referred to as PARTICIPANT in the New York State and Local Retirement System.
5. ______________________________ is hereafter referred to as ALTERNATE PAYEE in the New York State and Local Retirement System.
6. The current and last known mailing address of PARTICIPANT is ________________________ and his/her social security number is _______________________.
7. The current and last known mailing address of ALTERNATE PAYEE is __________________________________, and his/her social security number is _______________. Date of birth ________________.
8. To accommodate the marital property distribution between the parties, it is hereby

ORDERED, that the benefits under the New York State and Local Retirement System, to the extent to which they accrued during the marriage, are marital property; and it is further

ORDERED, that the Plan Administrator issue separate checks to the PARTICIPANT and the ALTERNATE PAYEE for their respective interests in the plan at the time the benefits become payable; and it is further

ORDERED, that at such time as PARTICIPANT has retired from and is actually receiving a retirement benefit from the * New York State and Local Retirement System, the said New York State and Local Retirement System, in accordance with the Equitable Distribution Law, and in accordance with the formula devised in the case of Majauskas v. Majauskas is directed to pay to ALTERNATE PAYEE from PARTICIPANT’s retirement allowance, ______ percent of a fraction of PARTICIPANT’s monthly retirement allowance; and it is further

ORDERED, the numerator shall be ____ months (must provide the specific number of months) and the denominator shall be the total number of months of service credit in the New York State and Local Retirement System which PARTICIPANT has at the time of retirement. The term “retirement allowance” as used herein, shall be deemed to include any annuity as well as supplemental retirement allowance which is paid by the said New York State and Local Retirement System to PARTICIPANT; and it is further

Note: *in lieu of the foregoing paragraph, the DRO could direct the Retirement System to calculate the marital portion based upon an open date field as follows:

ORDERED, the Retirement System is directed to calculate the numerator of the fraction as service credit accrued by the Participant between ______________ (the date of marriage) and ___________________ (the date of ____________), and the denominator shall be the total number of months of service credit in the New York State and Local Retirement System which PARTICIPANT has at the time of retirement. The term “retirement allowance” as used herein, shall be deemed to include any annuity as well as supplemental retirement allowance which is paid by the said New York State and Local Retirement System to PARTICIPANT; and it is further

ORDERED, PARTICIPANT is directed to designate the ALTERNATE PAYEE as beneficiary of the New York State and Local Retirement System pension plans, so that in the event the PARTICIPANT dies prior to retirement, the ALTERNATE PAYEE shall receive his/her pro rata share of any survivor benefits calculated pursuant to the formula herein above set forth; and it is further

¹NYSLRS covers both the Employees’s Retirement System and the Police and Fire Retirement System. If the Participant is a member under both plans and the ex-spouse’s entitlement to a benefit is limited to equitable distribution under only ERS or P&F, then the appropriate System must be specified.

ORDERED, PARTICIPANT is directed to elect at the time of retirement, assuming the ALTERNATE PAYEE is then living, to receive the retirement benefit pursuant to the terms of a Special Joint Allowance Option to be prepared by the Retirement System for the purpose of providing the ALTERNATE PAYEE, upon the PARTICIPANT’s death, with a monthly retirement benefit payable for life based upon the distribution calculated pursuant to the formula herein above set forth; and it is further

ORDERED, that nothing contained in this Order shall, in any way, require the New York State and Local Retirement System to provide any form, type or amount of benefit not otherwise available by law; and it is further

ORDERED, that the New York State and Local Retirement System shall have no obligation or responsibility as a consequence of this action apart from the specific direction contained in this Order; and it is further

ORDERED, in the event of change of address of said ALTERNATE PAYEE, he/she will immediately notify, in writing, the New York State and Local Retirement System, 110 State Street, Albany, New York, 12244; and it is further

ORDERED, that this Order shall not require the Retirement System to pay any benefits to an ALTERNATE PAYEE, including spouse, which are required to be paid to another ALTERNATE PAYEE; and it is further

ORDERED, that this Order is to be deemed appropriate to effectuate the division of the retirement benefits earned by the PARTICIPANT, pursuant to his/her participation in the New York State and Local Retirement System; and it is further

ORDERED, that this Court retained jurisdiction to implement and supervise the payment of retirement benefits as provided herein should either party or the Plan Administrator make such application, and the Court determines such to be appropriate and necessary.

E N T E R

______________________ J.S.C.

GRANTED: __________________

___________________________Court Clerk

DRO Sample 2: An example of a DRO that would provide the ex-spouse with a monthly Majauskas distribution upon the Participant’s retirement as well as an interest in the pre-retirement Ordinary Death benefit. Any cost-of-living adjustments would be apportioned between the parties. All payments to the ex-spouse would cease upon the Participant’s post-retirement death. Should the Participant select a post-retirement survivorship option, the cost would be borne by the Participant.

DRO Sample 2

At a Matrimonial Special Term of the Supreme Court Part ___, held in and for the County of ___________ at ______________, ____________, New York on the _______ day of ________, 20____

PRESENT: HON. ___________________Justice Presiding

STATE OF NEW YORK: County of: ___________________________

___________________________,Plaintiff,

DOMESTIC RELATIONS ORDER INDEX NO. __________ CAL. NO. ____________

___________________________, Defendant.

__________________________________________

This Court having granted a Judgment of Divorce on the ______ day of _____________, 20____, by the HON. ___________________, and filed in the __________ County Clerk’s Office on the _______ day of __________, 20____, and upon the stipulation entered into by the parties and ratified in open court on the _______ day of ___________, 20____, and it appearing to the court as follows:

1. The parties hereto were formerly husband and wife.
2. This order is made pursuant to the Judgment of Divorce granted on the _____ day of _________, 20____, and filed in the ____________ County Clerk’s Office on the ________ day of _____________, 20____, which Judgment of Divorce incorporated but did not merge the provisions of an oral stipulation entered into and ratified in open court on the ______ day of ____________, 20____.
3. The parties hereto were married on the _____ day of ______________, ____ and an action for a divorce was commenced on the _____ day of ____________, ____.
4. _______________________ is hereafter referred to as PARTICIPANT in the New York State and Local Retirement System.
5. _______________________ is hereafter referred to as ALTERNATE PAYEE in the New York State and Local Retirement System.
6. The current and last known mailing address of PARTICIPANT is ________________________ and his/her social security number is _______________________.
7. The current and last known mailing address of ALTERNATE PAYEE is __________________________________, and his/her social security number is _______________. Date of birth ________________.
8. To accommodate the marital property distribution between the parties, it is hereby

ORDERED, that the benefits under the New York State and Local Retirement System, to the extent to which they accrued during the marriage, are marital property; and it is further

ORDERED, that the Plan Administrator issue separate checks to the PARTICIPANT and the ALTERNATE PAYEE for their respective interests in the plan at the time the benefits become payable; and it is further

ORDERED, that at such time as PARTICIPANT has retired from and is actually receiving a retirement benefit from the *New York State and Local Retirement System, the said New York State and Local Retirement System, in accordance with the Equitable Distribution Law, and in accordance with the formula devised in the case of Majauskas v. Majauskas is directed to pay to ALTERNATE PAYEE from PARTICIPANT’s retirement allowance, ______ percent of a fraction of PARTICIPANT’s maximum monthly retirement allowance prior to any optional modification; and it is further

ORDERED, the numerator shall be ____ months (must provide the specific number of months) and the denominator shall be the total number of months of service credit in the New York State and Local Retirement System which PARTICIPANT has at the time of retirement. The term “retirement allowance” as used herein, shall be deemed to include any annuity as well as supplemental retirement allowance which is paid by the said New York State and Local Retirement System to PARTICIPANT; and it is further

Note: *in lieu of the foregoing paragraph, the DRO could direct the Retirement System to calculate the marital portion based upon an open date field as follows:

ORDERED, the Retirement System is directed to calculate the numerator of the fraction as service credit accrued by the Participant between ______________ (the date of marriage) and ___________________ (the date of ____________), and the denominator shall be the total number of months of service credit in the New York State and Local Retirement System which PARTICIPANT has at the time of retirement. The term “retirement allowance” as used herein, shall be deemed to include any annuity as well as supplemental retirement allowance which is paid by the said New York State and Local Retirement System to PARTICIPANT; and it is further

ORDERED, PARTICIPANT is directed to designate the ALTERNATE PAYEE as beneficiary of the New York State and Local Retirement System pension plans, so that in the event the PARTICIPANT dies prior to retirement, the ALTERNATE PAYEE shall receive his/her pro rata share of any survivor benefits calculated pursuant to the formula herein above set forth; and it is further

²NYSLRS covers both the Employees’s Retirement System and the Police and Fire Retirement System. If the Participant is a member under both plans and the ex-spouse’s entitlement to a benefit is limited to equitable distribution under only ERS or P&F, then the appropriate plan must be specified

ORDERED, that nothing contained in this Order shall, in any way, require the New York State and Local Retirement System to provide any form, type or amount of benefit not otherwise available by law; and it is further

ORDERED, that the New York State and Local Retirement System shall have no obligation or responsibility as a consequence of this action apart from the specific direction contained in this Order; and it is further

ORDERED, in the event of change of address of said ALTERNATE PAYEE, he/she will immediately notify, in writing, the New York State and Local Retirement System, 110 State Street, Albany, New York, 12244; and it is further

ORDERED, that this Order shall not require the Retirement System to pay any benefits to an ALTERNATE PAYEE, including spouse, which are required to be paid to another ALTERNATE PAYEE; and it is further

ORDERED, that this Order is to be deemed appropriate to effectuate the division of the retirement benefits earned by the PARTICIPANT, pursuant to his/her participation in the New York State and Local Retirement System; and it is further

ORDERED, that this Court retained jurisdiction to implement and supervise the payment of retirement benefits as provided herein should either party or the Plan Administrator make such application, and the Court determines such to be appropriate and necessary.

E N T E R

______________________ J.S.C.

GRANTED: __________________

___________________________Court Clerk

For More Information

Contact our Matrimonial Bureau for further information about DROs and how divorce can affect your benefits.

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