Section 47.10 - Determination of Whether an Order Is a Qualified Domestic Relations Order(a) A domestic relations order entered by a court of competent jurisdiction on January 1, 2015 or after must be in a form prescribed by TRS. The form prescribed by TRS must ensure compliance with the requirements in subsection (b) of this section.(b) For domestic relations orders entered by a court of competent jurisdiction before January 1, 2015, TRS shall apply the statutory criteria to determine whether an order is a QDRO. The following provisions shall also be used in making the determination. (1) The order must provide for each possible distribution by the retirement system for the member or retiree. This requirement may be met by a provision that: (A) awards a specified or clearly determinable percentage, rather than an amount, of each distribution by TRS based on the participant's account; or (B) awards all benefits not specified to the participant to be paid in accordance with plan provisions. (2) The order must provide for reducing the amount awarded in the event of reduction of the benefit based on the age of the participant, each reduction to be in proportion to the factors used to reduce the standard annuity on the basis of the participant's age below normal retirement age. This requirement shall not apply 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 QDRO; 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 annuity payments. (3) The order may not: (A) purport to require the designation by the participant of a particular person as the recipient of benefits in the event of a member's or annuitant's death; (B) purport to require the selection of a particular payment plan or benefit option; (C) require any action on the part of the retirement system contrary to its governing statutes or plan provisions other than the direct payment of the benefit awarded to an alternate payee; or (D) award any interest in distributions by the retirement system contingent on any condition other than those conditions resulting in the liability of the retirement system for payment under its plan provision. (4) A QDRO 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 participant. (5) If the order intends to award the participant the full amount of any future benefit increases that are provided or required by the legislature, the order must explicitly state such. TRS, its board of trustees, and its officers and employees shall not be liable for making payment of part of any future benefit increases to any person if the order so requires or if the order awards a percentage of benefits payable and does not explicitly state that future benefit increases are awarded solely and completely to the plan participant. (6) An order that purports to give to someone other than a member the right to designate a beneficiary or choose any retirement plan available from TRS is one that requires an action contrary to TRS' governing statute and plan provisions and therefore is not a QDRO. (7) An order that attaches a lien to any part of amounts payable with respect to a member or retiree is one that requires an action contrary to TRS' governing statute and plan provisions and therefore is not a qualified domestic relations order. (8) An order that awards an alternate payee a portion of the benefits payable with respect to a member or retiree under TRS and that purports to require TRS 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 is one that requires action contrary to TRS' governing statute and plan provisions and therefore is not a QDRO. (9) An order shall specify the date of the marriage. (10) An order that allocates the participant's investment in contract in a manner not in compliance with any requirements of the Internal Revenue Code and applicable regulations is not a QDRO. An order that does not allocate a participant's investment in contract may be determined to be a QDRO if it provides sufficient information for TRS to make the allocation in accordance with applicable laws and regulations. (11) An order that purports to require a member to terminate employment, to withdraw contributions, or to apply for retirement, is not a QDRO. (12) The order must satisfy the requirements of Internal Revenue Code §414(p)(1)(A)(i) and §414(p)(1)(B). (13) The order may contain provisions consistent with § 824.1012 or § 824.1013, Government Code, and TRS may rely on the provisions of the order as though the provisions were included in the decree of divorce or order accepting a property settlement.(14) The order may specify an alternative method for the parties to verify their Social Security numbers to TRS, if the court finds that omission of the numbers in the order is necessary to reduce the risk of identity theft. The order is not a QDRO if TRS finds that the method of verification is insufficient for the purpose of payment of benefits or reporting of income for tax purposes. 34 Tex. Admin. Code § 47.10
The provisions of this §47.10 adopted to be effective September 29, 1989, 14 TexReg 4785; amended to be effective March 12, 2003, 28 TexReg 2118; amended to be effective March 8, 2007, 32 TexReg 1097; amended to be effective June 20, 2013, 38 TexReg 3801; amended by Texas Register, Volume 39, Number 51, December 19, 2014, TexReg 10031, eff. 12/23/2014