Section 104.1051

Title VIII PUBLIC OFFICERS AND EMPLOYEES, BONDS AND RECORDS

Chapter 104

Effective - 28 Aug 2023, 5 histories   

  104.1051.  Annuity deemed marital property — division of benefits — calculation. — 1.  Any annuity provided pursuant to the year 2000 plan is marital property and a court of competent jurisdiction may divide such annuity between the parties to any action for dissolution of marriage if at the time of the dissolution the member has at least five years of credited service pursuant to sections 104.1003 to 104.1093.  A division of benefits order issued pursuant to this section:

  (1)  Shall not require the applicable retirement system to provide any form or type of annuity or retirement plan not selected by the member;

  (2)  Shall not require the applicable retirement system to commence payments until the member's annuity starting date;

  (3)  Shall identify the monthly amount to be paid to the former spouse, which shall be expressed as a percentage and which shall not exceed fifty percent of the amount of the member's annuity accrued during all or part of the period of the marriage of the member and former spouse excluding service accrued under subsection 2 of section 104.1021; and which shall be based on the member's vested annuity on the date of the dissolution of marriage or an earlier date as specified in the order, which amount shall be adjusted proportionately upon the annuity starting date if the member's annuity is reduced due to the receipt of an early retirement annuity or the member's annuity is reduced pursuant to section 104.1027 under an annuity option in which the member named the alternate payee as beneficiary prior to the dissolution of marriage;

  (4)  Shall not require the payment of an annuity amount to the member and former spouse which in total exceeds the amount which the member would have received without regard to the order;

  (5)  Shall provide that any annuity increases, additional years of credited service, increased final average pay, increased pay pursuant to subsections 2 and 5 of section 104.1084, or other type of increases accrued after the date of the dissolution of marriage and any temporary annuity received pursuant to subsection 4 of section 104.1024 shall accrue solely to the benefit of the member; except that on or after September 1, 2001, any cost-of-living adjustment (COLA) due after the annuity starting date shall not be considered to be an increase accrued after the date of termination of marriage and shall be part of the monthly amount subject to division pursuant to any order issued after September 1, 2001;

  (6)  Shall terminate upon the death of either the member or the former spouse, whichever occurs first;

  (7)  Shall not create an interest which is assignable or subject to any legal process;

  (8)  Shall include the name, address, and date of birth of both the member and the former spouse, and the identity of the retirement system to which it applies;

  (9)  Shall be consistent with any other division of benefits orders which are applicable to the same member;

  (10)  Shall not require the applicable retirement system to continue payments to the alternate payee if the member's retirement benefit is suspended or waived as provided by this chapter but such payments shall resume when the retiree begins to receive retirement benefits in the future.

  2.  A system shall provide the court having jurisdiction of a dissolution of a marriage proceeding or the parties to the proceeding with information necessary to issue a division of benefits order concerning a member of the system, upon written request from either the court, the member, or the member's spouse, citing this section and identifying the case number and parties.

  3.  A system shall have the discretionary authority to reject a division of benefits order for the following reasons:

  (1)  The order does not clearly state the rights of the member and the former spouse;

  (2)  The order is inconsistent with any law governing the retirement system.

  4.  Any member of the closed plan who elected the year 2000 plan pursuant to section 104.1015 and then becomes divorced and subject to a division of benefits order shall have the division of benefits order calculated pursuant to the provisions of the year 2000 plan.

  5.  Any annuity payable under section 104.1024 that is subject to a division of benefits order under this section shall be calculated as follows:

  (1)  In instances of divorce after retirement, any service or pay of a member between the retroactive starting date and the annuity starting date shall not be considered creditable service or pay; and

  (2)  The lump-sum payment described in subdivision (3) of subsection 6 of section 104.1024 shall not be subject to any division of benefits order.

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(L. 1999 S.B. 308 & 314, A.L. 2001 S.B. 371, A.L. 2003 S.B. 248, et al., A.L. 2007 S.B. 406, A.L. 2013 H.B. 233, A.L. 2023 S.B. 20 merged with S.B. 75)