Section 104.312

Title VIII PUBLIC OFFICERS AND EMPLOYEES, BONDS AND RECORDS

Chapter 104

Effective - 28 Aug 2023, 5 histories   

  104.312.  Pension, annuity, benefit, right, and allowance is marital property — division of benefits order, requirements — information for courts — rejection of division of benefits order — basis for payment to alternate payee — calculation of division of benefits. — 1.  The provisions of subsection 2 of section 104.250, subsection 2 of section 104.540, subsection 2 of section 287.820, and section 476.688 to the contrary notwithstanding, any pension, annuity, benefit, right, or retirement allowance provided pursuant to this chapter, chapter 287, or chapter 476 is marital property and after August 28, 1994, a court of competent jurisdiction may divide the pension, annuity, benefits, rights, and retirement allowance provided pursuant to this chapter, chapter 287, or chapter 476 between the parties to any action for dissolution of marriage.  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 and not normally made available by that system;

  (2)  Shall not require the applicable retirement system to commence payments until the member submits a valid application for an annuity and the annuity becomes payable in accordance with the application;

  (3)  Shall identify the monthly amount to be paid to the alternate payee, 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 time while the member and alternate payee were married excluding service accrued under section 104.601; 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 if the member's annuity is reduced due to early retirement or the member's annuity is reduced pursuant to section 104.395 under an annuity option in which the member named the alternate payee as beneficiary prior to the dissolution of marriage or pursuant to section 104.090 under an annuity option in which the member on or after August 28, 2007, named the alternative payee as beneficiary prior to the dissolution of marriage, and the percentage established shall be applied to the pro rata portion of any lump sum distribution pursuant to subsection 6 of section 104.335, accrued during the time while the member and alternate payee were married;

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

  (5)  Shall provide that any benefit formula increases, additional years of service, increased average compensation or other type of increases accrued after the date of the dissolution of marriage shall accrue solely to the benefit of the member; except that on or after September 1, 2001, any annual benefit increase paid after the member's 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 alternate payee, 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 alternate payee, 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 established by this chapter shall provide the court having jurisdiction of a dissolution of 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, which cites this section and identifies the case number and parties.

  3.  A system established by this chapter 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 alternate payee;

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

  4.  The amount paid to an alternate payee under an order issued pursuant to this section shall be based on the plan the member was in on the date of the dissolution of marriage; except that any annual benefit increases subject to division shall be based on the actual annual benefit increases received after the retirement plan election.

  5.  Any annuity payable under section 104.625 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 compensation of a member between the retroactive starting date and the annuity starting date shall not be considered creditable service or compensation; and

  (2)  The lump-sum payment described in subdivision (3) of section 104.625 shall not be subject to any division of benefits order.

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(L. 1992 S.B. 499, et al. § 5, A.L. 1994 H.B. 1149, A.L. 1995 H.B. 416, et al., A.L. 1997 H.B. 356, A.L. 2001 S.B. 371, A.L. 2007 S.B. 406, A.L. 2013 H.B. 233, A.L. 2023 S.B. 20 merged with S.B. 75)