Section 20.35. Qualified domestic relations orders; division of WRS accounts and annuities.

 

(1)   Scope and purpose.

(a) This section applies to any order to divide any benefit of the Wisconsin retirement system which is received by the department.

(b) The purpose of this section is to specify how the department shall apply a valid QDRO to the participant's account or annuity or respond to an order which is not a valid QDRO.

(c) For purposes of ss. 40.02 (48m) and 40.08 (1m) , Stats., and this section, a marriage is terminated upon entry of a judgment, decree or order of divorce, annulment or legal separation. A domestic partnership as defined in s. 40.02 (21d) , Stats., is terminated as provided in s. ETF 20.10 (3) . A domestic partnership, as defined in s. 770.01 (2) , Stats., is terminated as provided in s. 770.12 , Stats.

(2)   Division by valid QDRO. Except as otherwise provided in sub. (6) or (7) , upon receipt of a valid QDRO the department shall divide WRS accounts and annuities in accordance with the percentage awarded to the alternate payee in the valid QDRO, based on the date on which the marriage was terminated by a court judgment, decree or order or the domestic relationship was terminated as provided in s. ETF 20.10 (3) or s. 770.12 , Stats., as follows:

(a) With respect to marriages terminated on or after January 1, 1982, and before April 28, 1990, the division shall be as provided in subs. (3) and (4) , when a valid QDRO is received by the department after May 2, 1998.

(b) With respect to marriages or domestic partnerships terminated on or after April 28, 1990, the division shall be as provided in subs. (3) and (5) .

(3)   All QDRO divisions.

(a) Percentages. The percentage of the participant's account or annuity that is awarded to the alternate payee by a valid QDRO is limited to a percentage between zero percent (0%) and fifty percent (50%) expressed to no more than 2 decimal places. An otherwise valid QDRO with a percentage awarded to the alternate payee expressed to more than 2 decimal places may not be rejected for that reason alone, but the department shall round the percentage to 2 decimal places.

(b) Debts of the participant. Any debt, memorandum account or account receivable balance reflecting amounts owed by the participant to the department, the fund or any benefit plan, accrued as of the decree date and still outstanding at the time the account or annuity is divided, shall be divided between the participant and alternate payee in the same proportion as the participant's account or annuity.

(c) Dividing Wisconsin retirement system annuities.

1. `Present actuarial values before and after division shall be equal.' An annuity shall be divided so that the actuarial present value of the undivided annuity is equal to the aggregate actuarial present values of the 2 separate annuities resulting from the division as of the effective date of the division.

2. `Division of accelerated annuity option.' If the participant selected an accelerated payment option as provided in s. 40.24 (1) (e) , Stats., or s. ETF 20.04 (3) , and the participant's temporary annuity is still in force as of the effective date of the annuity division, then the department shall calculate the present value of both the temporary and life annuities using the actuarial tables in effect on the effective date of the annuity division. The department shall then divide the total present value based on the percentages specified in the QDRO and calculate separate annuities for the participant and alternate payee as specified in s. 40.08 (1m) (f) 2. , Stats. If the participant or alternate payee provides a projection of his or her social security benefits at age 62 from the social security administration, the department shall use that projected social security amount to calculate the amount of the temporary annuity for that person. If no projection is supplied, then notwithstanding s. ETF 20.03 (2) , the department shall assume that person's projected social security benefits at age 62 equals that person's prorated portion of the participant's temporary annuity amount as of the effective date of the annuity division, calculated based on the respective percentages of the annuity being awarded to the participant and alternate payee. If the reduced annuity payable for life to the alternate payee or participant is below the threshold specified by s. ETF 20.05 (1) , then that person shall receive an annuity in the same option.

3. `Disability annuities.' Upon division of a disability annuity calculated under the provisions of s. 40.63 (1) or (4) , Stats., the alternate payee's annuity shall consist of a portion based on the participant's actual service and a portion based on the assumed service used to calculate the participant's disability annuity. The portion of the alternate payee's annuity based on the participant's assumed service and age shall cease upon the death of the alternate payee. Benefits payable upon the death of the alternate payee's shall be based on the guaranteed portion of the alternate payee's annuity only. Once the participant's disability annuity has been divided, the termination or suspension of the participant's disability annuity or the death of the participant has no effect on the alternate payee's annuity. If the participant's disability annuity is subsequently terminated and the participant's account restored under the provisions of s. 40.63 (9) and (10) , Stats., the contributions and service credited to the restored account shall be reduced by the same percentage awarded to the alternate payee by the valid QDRO.

4. `Actuarial adjustment for early retirement.' The actuarial reduction applied to the participant's and alternate payee's annuities as provided in s. 40.23 (2m) (f) and (fm) , Stats., shall be calculated based on the participant's and alternate payee's actual ages on his or her respective annuity effective dates, using the creditable service that would otherwise have been credited to the participant's account on the respective annuity effective dates if the participant's creditable service had not been reduced per a valid QDRO.

5. For the purposes of determining the amount of service used to calculate the alternate payee's actuarial reduction for early retirement under the provisions of s. 40.23 (2m) (fm) , Stats., if the participant has part-time service in at least five of the ten annual earnings periods immediately preceding the annual earnings period in which the alternate payee's retirement benefit becomes effective or the date on which the participant terminated covered employment, whichever is earlier, the provisions of s. 40.23 (2m) (fm) , Stats., shall apply. If the decree date is prior to July 1, 2009, the provisions of s. 40.23 (2m) (fm) , Stats., in effect prior to that date shall apply.

(d) Dividing Wisconsin retirement system accounts.

1. `Creditable service.' Creditable service which the participant has been granted as of the decree date is a part of the Wisconsin retirement system account of a participant and shall be divided in the same ratio as other account balances. With respect to a decree date on or after January 1, 1982 through April 1, 1990, if the employer is unable to accurately report earnings and service up to the decree date, as required by s. 40.02 (48m) (j) , Stats., the department shall prorate the participant's service, earnings and contributions for the calendar year in which the decree date falls. The service and contributions shall be prorated based on the number of months between January 1 of the year in which the marriage is terminated and the decree date, divided by the number of complete and partial months during that calendar year in which the participant was a participating employee, with the quotient rounded to 2 decimal places.

2. `Purchased service credits.' Previously purchased service shall be divided in the same proportion as the other portions of the participant's account and creditable service. If an application to purchase creditable service is received prior to the decree date, as defined by s. 40.02 (18f) , Stats., then service for which payment is made shall be included in the division. The department shall pay any refund due only to the participant and shall bill only the participant for any supplemental payment due for such purchased service. No refund shall be due to the participant from the department for the portion of any excess payment withdrawn from the public employee trust fund by the alternate payee. Credit for service purchased by an application received after the decree date shall not be divided by the qualified domestic relations order regardless of the source of the funds for the purchase or when the services were actually rendered.

3. `Creditable military service.' If the participant has active military service, the alternate payee shall be granted the percentage specified in the valid QDRO of the military service for which the participant would be eligible as of the decree date, based on the participant's total creditable service as of the decree date, regardless of when the participant requests the crediting or provides satisfactory documentation. If a participant does not provide to the department proof of active military service and the certification of active military service on the form prescribed by the department, the department shall nevertheless divide the participant's account without the military service provided the court order is otherwise a valid QDRO.

4. `Rehired annuitant with suspended account.' If the participant's annuity was suspended prior to the decree date under the provisions of s. 40.26 (2) , Stats., any memorandum account balance resulting from the annuity payments paid prior to the decree date and after the effective date on which the account was suspended, plus accumulated interest on that amount, shall be divided in the same proportion as the other portions of the participant's account.

(4)   Marriages terminated on or after January 1, 1982 and before April 28, 1990.

(a) The division of accounts and annuities that are divided per valid QDROs with respect to marriages terminated between January 1, 1982 and April 27, 1990, both dates inclusive, shall be calculated to reflect changes in the participant's account, including but not limited to commencing or terminating an annuity, between the decree date and the effective date of the account or annuity division, as provided in this subsection.

(b) If the participant was an annuitant on the decree date and has continued to be an annuitant until the effective date of the annuity division, the department shall calculate the present value of the participant's annuity as of the effective date of the division based on the actuarial tables in effect on the effective date of the annuity division, and award a share of the total present value to the alternate payee, then calculate separate annuities for the alternate payee as provided in s. 40.08 (1m) (b) 2. , (c) and (d) , Stats.

(c) If the participant was not an annuitant on the decree date, but is an annuitant on the date that the department receives the valid QDRO, the participant's annuity shall be divided as provided in sub. (3) (c) , and as follows:

1. The portion of the annuity awarded to the alternate payee may not reflect any service or contributions reportable for any period of the participant's participating employment after the decree date.

2. If the participant's retirement annuity is a formula annuity calculated under the provisions of s. 40.23 (2) (b) or (2m) (e) , Stats., the percentage of the participant's annuity awarded to the alternate payee shall be based on the ratio of the years of creditable service awarded to the alternate payee as of the decree date, based on the percentage specified in the valid QDRO and including any creditable military service, divided by the total creditable service used to calculate the participant's retirement annuity, with the quotient rounded to 2 decimal places.

3. If the participant's retirement annuity is a money purchase annuity calculated under the provisions of s. 40.23 (2) (c) , (2m) (c) or (d) , or (3) , Stats., the portion of the participant's annuity awarded to the alternate payee shall be based on the ratio of the portion of the account balance awarded to the alternate payee as of the decree date including interest creditable through the day before the participant's annuity effective date, based on the percentage specified in the valid QDRO, divided by the total account balance used to calculate the participant's retirement annuity, with the quotient rounded to 2 decimal places.

4. If the participant is receiving a disability annuity under s. 40.63 (1) or (4) , Stats., the alternate payee's share of the portion of the participant's disability annuity based on assumed service shall be calculated by dividing the years of creditable service awarded to the alternate payee as of the decree date, based on the percentage specified in the valid QDRO and including any creditable military service, by the total service that was available to calculate the guaranteed portion of the participant's disability annuity, including any creditable military service, regardless of whether the guaranteed portion of the disability annuity was calculated under s. 40.23 (2) (b) or (c) , (2m) (c) , (d) or (e) or (3) , Stats.

(d) If a participant's annuity is divided under the provisions of par. (c) , and that annuity was reduced under the provisions of s. 40.23 (2) or (2m) (b) , Stats., the percentage of the annuity to be awarded to the alternate payee shall be determined as provided in par. (c) , and those percentages shall be applied to the annuity amounts payable on the effective date that the annuity is divided per the valid QDRO.

(e) If the participant was an annuitant on the decree date but the account was subsequently reestablished under the provisions of s. 40.26 (2) , Stats., and the participant is not an annuitant on the date the department receives the valid QDRO, the department shall establish a separate account for the alternate payee consisting of a share of the participant's contributions and creditable service, based on the percentage specified in the valid QDRO and including any creditable military service, that was available to calculate the participant's original retirement annuity. Interest shall be added to the contribution balances for the period between the decree date and the date the alternate payee's account is reestablished. If the participant has a memorandum account balance, the alternate payee's account shall also be credited with a share of the participant's memorandum account balance as provided in sub. (3) (b) , based on the percentage specified in the valid QDRO.

(5)   Marriages and domestic partnerships terminated on or after April 28, 1990.

(a) If the participant was not an annuitant on the decree date, the department shall divide the participant's account as provided in s. 40.08 (1m) (b) 1. , (c) , (d) and (f) 1. , Stats., and sub. (3) (d) , and as follows:

1. The creditable service and amounts awarded to the alternate payee shall be in a separate account in the fund for the benefit of the alternate payee. After the division under this section, the alternate payee may apply for a separation benefit under s. 40.25 (2) , Stats., provided the application is received by the department prior to the date on which the participant would have met the minimum age requirement for a retirement annuity under s. 40.23 , Stats., and payment of a separation benefit would comply with all provisions of the internal revenue code. After the date the participant reaches or would have reached the minimum retirement age, the alternate payee may only apply for retirement benefits under s. 40.23 , 40.24 , or 40.25 (1) , Stats.

2. The participant shall retain the remainder in his or her separate account under s. 40.04 (4) (a) , Stats., unless the participant is an annuitant at the time of the division. If the participant is an annuitant when the division occurs, the participant's creditable service and account as of the decree date shall be reduced by the percentage awarded to the alternate payee. The balances shall then be brought forward to the effective date of the current annuity, including any contributions and service for periods after the decree date, and the annuity option chosen by the participant shall be recalculated. The amount by which the monthly annuity payments previously made to the participant exceed the participant's recalculated monthly entitlement for the same period shall be a balance due from the participant. This balance due shall be due from the participant and may be collected as provided in s. 40.08 (4) , Stats., including by a reduction of the present value of the participant's annuity as reduced by the division, resulting in a recalculation and reduction of the participant's monthly annuity.

(b)

1. Except as provided in subd. 2. , if the participant was an annuitant on the decree date, the department shall divide the present value of the annuity as provided in s. 40.08 (1m) (b) 2. , (c) , (d) and (f) 2. , Stats., and sub. (3) (c) and pay separate annuities to the participant and alternate payee, respectively.

2. If the participant's annuity is a joint and survivor annuity with the alternate payee as the named survivor, and the percentage awarded to the alternate payee in the valid QDRO is zero percent (0%), then the alternate payee may not receive any Wisconsin retirement system annuity based on the valid QDRO and the participant's annuity shall be recalculated as a straight life annuity payable to the participant, with no change in the remaining guarantee period, if any.

(6)   Invalid QDRO.

(a) Rejection and notice. The department may not honor any order to divide Wisconsin retirement system benefits which it determines is not a valid QDRO as defined in s. 40.02 (48m) , Stats. The department shall send written notice of its rejection of an order to the person submitting the order and to the participant and alternate payee if those persons' current names and addresses are stated in the order or are readily determinable from department records.

(b) Account already closed. An otherwise valid QDRO received after the participant's account was closed by payment of a lump sum benefit on or after the decree date has no effect, regardless of whether the participant returned to participating employment after the decree date. If the participant's account to which the valid QDRO applies is subsequently restored under the provisions of s. 40.25 (5) , Stats., because the benefit was paid in error, or under an agreement approved by the department where the full amount of the benefit paid plus monthly interest at the assumed rate has been paid to the department, the restored account shall be divided according to the valid QDRO.

(c) Participant or alternate payee deceased. An otherwise valid QDRO received after the participant's or alternate payee's date of death has no effect on the participant's account or annuity.

(7)   Limited grace period to correct specified errors.

(a) If the department rejects an order for the division of a participant's account and subsequently receives an otherwise acceptable application from the participant for a benefit which would close the participant's account due to payment of a lump sum benefit, the department shall delay payment of the lump sum benefit until 30 days after the date the order for division was rejected. This paragraph applies only if the basis for the rejection was one or more of the following:

1. The order did not meet all of the requirements in s. 40.02 (48m) , Stats.

2. The order received by the department was not a certified copy or an original, signed by the judge or a duly authorized family court commissioner.

(b) If the department has not received a second, valid QDRO within 30 days after the rejection, then the department shall complete processing the application for benefits and sub. (6) (b) shall apply.

(8)   Effect of post-decree date corrections and adjustments.

(a) Service purchased after decree date. Credit for service purchased by the participant after the decree date in a valid QDRO may not be affected by that QDRO.

(b) Active military service. If the department divided a participant's account per a valid QDRO without first receiving proof and certification of active military service, as provided in sub. (3) (d) 3. , and the participant subsequently provides documentation of active military service and the certification on the form prescribed by the department, the department shall divide the military service creditable based on services rendered prior to the decree date between the participant and alternate payee's accounts pursuant to the valid QDRO. Any resulting adjustments to the alternate payee's and participant's benefits shall be made retroactive to the respective benefit effective dates. The participant may not receive creditable military service for any active military service that would have been granted to the alternate payee had the participant submitted timely to the department the certification of active military service as provided in s. 40.02 (48m) (f) , Stats.

(c) Other corrections and adjustments directly affecting benefits. The effect of any other corrections and adjustments to service, contributions, or interest earnings affecting the benefits the participant accrued as of the decree date, including corrections of administrative errors and corrections or adjustments of any factor affecting the calculation of an annuity to be divided, shall be divided between the participant and the alternate pursuant to the valid QDRO. The participant and alternate payee accounts or annuities shall be adjusted accordingly. However, the department shall not adjust benefit amounts if the amount of the adjustment would be less than the thresholds specified in s. 40.08 (7) (a) , Stats.

(d) When a participant's annuity is divided as provided in sub. (5) (b) and retroactive payments are due to an alternate payee, or when an alternate payee's annuity must be increased retroactively for any reason, no interest as specified in s. 40.08 (7) (c) , Stats., is payable to the alternate payee for any monthly payments payable prior to the month in which the department received the valid QDRO.

(10)   Compliance with section 415(b) of the internal revenue code. (a) The aggregate benefits paid to the participant and alternate payee shall not exceed the benefit limits under Section 415 (b) of the Internal Revenue Code. The department shall make any necessary adjustments to the participant's and alternate payee's benefits on an equitable pro rata basis to assure compliance with Section 415 (b) of the Internal Revenue Code. Benefits derived from employee contributions that are actually paid by the employee shall not be subject to the benefit limitations under this subsection.

(b) If the participant's retirement annuity has been divided per a QDRO under s. 40.08 (1m) (b) 2. , Stats., any subsequent adjustments necessary for compliance with Section 415 (b) of the Internal Revenue Code that result from either post-retirement annuity adjustments under s. 40.27 (2) or 40.28 (2) , Stats., or from increases in the compensation limits specified in Section 415 (b) of the Internal Revenue Code, shall be prorated based on the percentage of the participant's account that was awarded to the alternate payee in the QDRO.

(c) If the participant's account is divided as provided in pars. (3) (d) or (5) (a) , any benefit adjustments required under Section 415 (b) of the Internal Revenue Code shall be applied as follows:

1. If the alternate payee's benefit becomes effective prior to the participant's benefit effective date:

a. If the aggregate benefits that would be payable to both the alternate payee and the participant on the alternate payee's benefit effective date do not exceed the maximum benefits that would be payable to the participant under Section 415 (b) of the Internal Revenue Code if the account had not been divided, the alternate payee's benefit will not be reduced.

b. Any subsequent benefit adjustments necessary for compliance with Section 415 (b) of the Internal Revenue Code will be applied solely to the participant's benefits, and shall not affect the benefit amount payable to the alternate payee.

2. If the participant's benefit becomes effective prior to the alternate payee's benefit effective date, or the participant's and alternate payee's benefits become effective on the same date:

a. If the aggregate benefits that would be payable to both the participant and alternate payee on the participant's benefit effective date exceed the maximum benefits that would be payable to the participant under Section 415 (b) of the Internal Revenue Code if the account had not been divided, the adjustment to participant's annuity shall be prorated based on the percentage of the participant's account that was not awarded to the alternate payee in the QDRO.

b. When a benefit is subsequently paid to the alternate payee, the portion of the total adjustment necessary for compliance with Section 415 (b) of the Internal Revenue Code that is applied to the alternate payee's benefits shall be prorated based on the percentage of the participant's account awarded to the alternate payee in the QDRO.

3. If the participant's benefit effective date is on or after the alternate payee's benefit effective date as specified in subd. 2. , and as a result of either post-retirement annuity adjustments under s. 40.27 (2) or 40.28 (2) , Stats., or of increases in the compensation limits specified in Section 415 (b) of the Internal Revenue Code, subsequent benefit adjustments are necessary for compliance with Section 415 (b) of the Internal Revenue Code, such adjustments shall be prorated based on the percentage of the participant's account that was awarded to the alternate payee in the QDRO.

(d) For the purposes of determining the aggregate benefits payable to the participant and alternate payee under par. (b) , the department shall:

1. First calculate the present value of what the participant's benefit would be as of the benefit effective date of the participant's or alternate payee's benefit effective date, whichever is earlier, as though the participant's account had never been divided by a QDRO.

2. If that total aggregate benefit amount is higher than the maximum benefits permitted under Section 415 (b) of the Internal Revenue Code, the department shall reduce the aggregate benefits to the maximum amount payable under Section 415 (b) of the Internal Revenue Code. The present value of that maximum benefit payable shall be divided between the participant and alternate payee in proportion to the percentage of the participant's account that was awarded to the alternate payee. The benefits payable to the participant and alternate payee shall then be adjusted as follows:

a. If the alternate payee has received a lump sum benefit under s. 40.25 (1) or (2) , Stats., the gross amount of the alternate payee's lump sum payment shall be subtracted from the present value of the participant's maximum benefit payable under Section 415 (b) of the Internal Revenue Code calculated under par. (d) . The present value of the benefit paid to the participant shall not exceed the remainder of the present value of that maximum benefit payable under Section 415 (b) of the Internal Revenue Code.

b. If the alternate payee has previously taken a monthly retirement annuity, the present value of the alternate payee's annuity as of the alternate payee's annuity effective date shall be subtracted from the present value of the participant's maximum benefit payable under Section 415 (b) of the Internal Revenue Code. The present value of the benefit paid to the participant shall not exceed the remainder of the present value of that maximum benefit payable under Section 415 (b) of the Internal Revenue Code.

c. If the participant's benefit becomes effective prior to the alternate payee's benefit effective date, the present value of the benefit paid to the participant shall not exceed the maximum aggregate benefit calculated under this paragraph minus the present value of the benefit payable to the alternate payee as of the participant's annuity effective date.

Cr. Register, July, 1999, No. 523 , eff. 8-1-99; CR 07-062 : am. (3) (d) 2. Register June 2008 No. 630 , eff. 7-1-08; CR 11-040 : am. (2) (b) Register July 2012 No. 679 , eff. 8-1-12; CR 11-041 : am. (1) (b), (c), (2), (3) (a), (b), (c) 1. to 3., cr. (c) 5., am. (4) (c) 3., (5), (6), (7) (a), (8) (b), (c), cr. (8) (d), (9), (10) Register July 2012 No. 679 , eff. 8-1-12; CR 14-055 : am. (3) (d) 4., r. (9) Register May 2015 No. 713 , eff. 6-1-15.

Note

See s. ETF 10.82 concerning receipt by the department. Microsoft Windows NT 6.1.7601 Service Pack 1