How Can a Property Division Affect My Retirement Account?

Last Updated February 2018
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When you divorce or legally separate, a court might divide your retirement account between you and your ex-spouse or former registered domestic partner (ex-partner). It would do this through a property division order. The order can tell the Department of Retirement Systems (DRS) to take one of the following actions:

  • Award an interest in your account to your ex-spouse or ex-partner
  • If you are vested, split your account into two separate accounts — one for you and one for your ex-spouse or ex-partner

If you are in the process of a divorce or legal separation and you have questions about property division orders that aren’t covered in this publication, contact DRS. To view the RCWs and WACs referenced in this publication, select them in this file or visit the Office of the Code Reviser website.

How do I access my retirement account information?

DRS can provide specific information for the preparation of a property division order after receiving one of the following:

  • Member’s request
  • Member’s written authorization to release information
  • Subpoena to produce evidence
  • Public disclosure request

Is it OK to send DRS a draft of the property division order?

Yes. DRS can review any draft property division order and tell you whether we can approve it as written. We might offer suggestions about how to include the required language. However, we can’t suggest how your retirement account should be divided or provide any legal advice. If you want legal advice, please talk with a lawyer.

When the order is filed, what should I give DRS?

You must submit a “conformed copy” of the order to DRS. A conformed copy is the property division order that the judge or commissioner has signed and that has been filed with the court. Once DRS receives the conformed copy, we will send you a letter to let you know we received it. The letter will also state whether DRS can comply with the terms of the order.

What if I belong to more than one system?

If you are a member of more than one DRS-administered retirement system and an interest in your account is being awarded to your ex-spouse or ex-partner, your property division order must include a separate provision for each system.

That means the required language must be repeated in the order. Each time it’s used, it must name the retirement system and plan it applies to.

Awarding an interest in an account

If a property division order awards an interest in your account to your ex-spouse or former registered domestic partner, your ex-spouse or ex-partner will have the legal right to a portion of any retirement payments you receive. No payment will be made to your ex until you retire, withdraw contributions or die. At that time, DRS will make payment directly to your ex-spouse or ex-partner.

The property division order must contain the provisions and language the law requires. For more information, review:

Can the court award an interest in my retirement account?

Yes. A court can approve a property division order that awards an interest in your account to your ex-spouse or ex-partner if you are a member of any retirement system DRS administers. That includes:

  • Public Employees’ Retirement System (PERS)
  • Teachers’ Retirement System (TRS)
  • School Employees’ Retirement System (SERS)
  • Public Safety Employees’ Retirement System (PSERS)
  • Law Enforcement Officers’ and Fire Fighters’ Retirement System (LEOFF)
  • Washington State Patrol Retirement System (WSPRS)
  • Judicial Retirement System (JRS)
  • Judges’ Retirement Fund (JRF)

Does the property division order need to use specific language?

Yes. The exact language, however, depends on which retirement plan you’re in and when the property division order is filed with and signed by the court and accepted by DRS.

Plan 1 and Plan 2: The order must use the language cited in WAC 415-02-510(2). The section requires two paragraphs be included:

  1. One paragraph must provide payment to your ex-spouse or ex-partner of a portion of your monthly retirement benefit.
  2. The other paragraph must provide payment to your ex-spouse or ex-partner of a portion of any contribution withdrawal you become eligible for. The paragraph must state either a specific dollar amount or a percentage. It can’t state both.

Because the monthly benefit and contributions are payment options for the same retirement account, both paragraphs must be in the order before DRS can accept it. If DRS can’t accept an order because it doesn’t meet these requirements, then a new order will need to be drafted.

Plan 3: A Plan 3 account consists of a defined benefit portion you receive beginning at retirement and a defined contribution portion you receive any time after you separate from employment with your DRS-covered employer.

Since Plan 3 consists of both defined benefit and defined contribution portions, the order can divide one portion without affecting the other.

For the defined benefit portion, the order must contain the language in WAC 415-02-530(2). The order must state either a specific dollar amount or a percentage. It can’t state both.

For the defined contribution portion, the order must contain the language in WAC 415-02-530(12). The order must state a specific dollar amount. It can’t state a percentage.

Even though the defined contributions will be transferred to your ex-spouse or ex-partner, your ex won’t be able to receive a payment until you leave employment and request payment from your defined contributions.

Can the court order require my ex be named as survivor?

The property division order could require that your ex-spouse or ex-partner be named as your survivor when you retire. If it does and you name someone else, DRS must override your choice to comply with the property division order. To learn more, review RCW 41.50.790(1).

If the property division order doesn’t require you to name your ex, you can name anyone you choose as your survivor when you retire. The calculation for your ex will still be based on the unreduced benefit amount before you named a survivor.

LEOFF Plan 1 and WSPRS Plan 1: Exceptions apply. Please contact DRS to learn more.

Can I name both my ex and current spouse or partner as survivor?

Yes. RCW 41.50.790(3) allows a survivor benefit to be divided between a current spouse and an ex-spouse or ex-partner. The order would need to:

  • Name your ex as a survivor
  • State that the benefit is to be divided
  • List the amount to be paid to each person by name

You, your ex and the judge must all sign the property division order.

How much of my monthly benefit can my ex be awarded?

A property division order can require DRS to pay up to 75% of your monthly retirement benefit to your ex-spouse or ex-partner. For more information, read RCW 41.50.670(4).

When will my ex-spouse or ex-partner receive payment?

When you receive payment from your retirement account, so will your ex-spouse or ex-partner. This can occur when:

  • You retire and begin receiving your monthly retirement benefit
  • You are in Plan 1 or Plan 2 and request a withdrawal of your accumulated contributions
  • You are in Plan 3 and request payment of your defined contributions
  • Your estate receives payment after your death

What salary will be used to calculate my monthly benefit?

Your monthly benefit is determined at the time you retire. You can review the formula that determines your monthly benefit in your member handbook, available on the DRS website: DRS Home>Members>your retirement system>Handbook (under plan).

If your property division order awards a percentage of your monthly benefit to your ex-spouse or ex-partner, your ex will receive the named percentage of your monthly benefit. This is true even if your salary at the time your relationship ended was lower than your salary at the time you retire.

If your property division order awards a specific dollar amount to your ex, the specified amount will be deducted from your monthly benefit at retirement.

Can the amount awarded be limited to how much I earned during our relationship?

Maybe. How the property division order is written states what portion of your monthly retirement benefit will be awarded to your ex.

If the order uses the formula specified in WAC 415-02-500(15), then the order can limit your ex-spouse’s or ex-partner’s share to a percentage of the service credit earned during the period of your marriage or registered domestic partnership.

Example 1
Share of benefit earned during marriage or partnership

Marcel earned 300 months of service credit while married. He has a total of 400 months of service credit when he retires. His monthly benefit before applying the terms of the order is $4,000.

The order awards 50% of his benefit to his ex-spouse and uses the formula in WAC 415-02-500(15) to limit the ex-spouse’s share to the service credit earned during their marriage. The ex-spouse’s monthly benefit is calculated as follows:
300 ÷ 400 x 0.5 x 4,000 = $1,500

If the order doesn’t use this formula, your ex-spouse or ex-partner will be awarded a percentage of your total benefit.

Example 2
Percentage of total benefit

Aisha earned 250 months of service while in a registered domestic partnership. She has a total of 367 months of service credit when she retires. Her monthly benefit before applying the terms of the order is $3,400.

The order awards 50% of her benefit to her ex-partner and doesn’t limit the ex’s share to what was earned during their relationship. The ex-partner’s benefit is calculated as follows:
0.5 x 3,400 = $1,700

Can I revoke the survivor benefit option I chose when I retired?

If you named your then-spouse or then-partner as your survivor at retirement, two ways exist to revoke that choice.

  1. You can return to work and reestablish membership in your plan. When you retire again, depending on the rules of your DRS-administered retirement plan, you might be able to change your survivor option. (See WAC 415-02-520 for more information.) However, retiring again won’t affect the terms of your property division order.
  2. You can obtain an amended court order to split your account. See the question “Can I amend an existing order to split my account into two?” for details.

An order that awards all of your monthly benefit to you and none to your ex doesn’t revoke any survivor option you might have chosen when you retired. To revoke the survivor option, you must take No. 2 described above.

Can monthly payments be made for a limited period of time?

Yes. A property division order can limit your obligation to a certain period of time.

If the order doesn’t specify a time limit, payment will continue until you or your ex-spouse or ex-partner dies, whichever occurs first.

Example
Limited period of time

Karim is a member of the Public Employees’ Retirement System (PERS). Karim and Jayden have filed for divorce.

To provide Jayden with $1,500 monthly from Karim’s monthly retirement benefit from April 1, 2018, through March 31, 2027, the first paragraph of the required two paragraphs discussed in “Does the property division order need to use specific language?” must use the following highlighted language:
“If Karim Benzema (the obligor) receives periodic retirement payments as defined in RCW 41.50.500, the Department of Retirement Systems shall pay to Jayden Benzema (the obligee) $1,500 from April 1, 2018, through March 31, 2027, to be paid in dollars from such payments or N/A percent of such payments. If the obligor’s debt is expressed as a percentage of his or her periodic retirement payments and the obligee does not have a survivorship interest in the obligor’s benefit, the amount received by the obligee shall be the percentage of the periodic retirement payment that the obligor would have received had he or she selected a standard allowance.”

LEOFF Plan 1 only: If the order doesn’t specify a time limit, payment will continue until your ex-spouse’s or ex-partner’s death.

If I receive a COLA, will my ex receive the adjustment also?

Maybe. Your monthly benefit might include annual Cost-of-Living Adjustments (COLAs). If it does and your property division order awards your ex-spouse or ex-partner a percentage of your monthly benefit, your ex’s payment will also be adjusted each time you receive a COLA.

However, if your property division order awards your ex-spouse or ex-partner a specific dollar amount, your ex’s payment will remain the same unless the property division order includes specific language that awards a portion of any COLA you receive to your ex.

Example
Providing a COLA to an ex

Morgan is a member of the Teachers’ Retirement System (TRS). Morgan and Renata have filed for divorce. To provide Renata with $750 from each of Morgan’s monthly benefit payments plus a portion of any future COLAs, the first paragraph of the required two paragraphs discussed in “Does the property division order need to use specific language?” must use the following highlighted language:
“If Morgan Antov (the obligor) receives periodic retirement payments as defined in RCW 41.50.500, the Department of Retirement Systems shall pay to Renata Cuoco (the obligee) $750 plus any applicable Cost-of-Living Adjustments granted after retirement to be paid in dollars from such payments or N/A percent of such payments. If the obligor’s debt is expressed as a percentage of his or her periodic retirement payments and the obligee does not have a survivorship interest in the obligor’s benefit, the amount received by the obligee shall be the percentage of the periodic retirement payment that the obligor would have received had he or she selected a standard allowance.”

What happens if I return to work after retiring from my position?

If you return to work with a DRS-covered employer after you retire, your benefit could be affected, depending on the position and number of hours you work.

In certain circumstances, you might be required to become a member of and pay contributions to another retirement system. You might be able to work limited hours with no impact to your benefit.

If returning to work affects your monthly benefit, it will affect your ex’s monthly property division payments as well. If it results in an overpayment of your benefit, both you and your ex will have to repay the overpayment amount.

If you are considering returning to work after retirement and would like more information about the possible impacts on your monthly benefit, contact DRS.

What happens if my ex-spouse or ex-partner dies before I do?

The potential impact of an ex-spouse’s or ex-partner’s death on your account depends on which retirement plan you’re in. Plans 1 and 2 are defined benefit plans. Plan 3 is a hybrid plan composed of both a defined benefit portion and a defined contribution portion. Read below to see how the death of your ex would impact each.

Defined benefit (Plan 1, Plan 2 and Plan 3): If your ex-spouse or ex-partner dies before you retire, the property division order will no longer apply and you will receive a full benefit when you retire. If your ex was your survivor and dies after you retire, your monthly payment will return to the full amount.

Defined contribution (Plan 3): If your ex-spouse or ex-partner dies before receiving payment of any funds from your retirement account, the funds become payable to your ex’s designated beneficiary or estate.

What happens if I die before my ex does?

The potential impact of your death on your retirement account depends on which retirement plan you’re in. Plans 1 and 2 are defined benefit plans. Plan 3 is a hybrid plan composed of both a defined benefit portion and a defined contribution portion.

LEOFF Plan 1 only: If you have retired and die before your ex-spouse or ex-partner does, payments will continue to your ex for your ex’s lifetime. If you haven’t retired before your death, you ex will receive a lump sum payment.

Defined benefit (all other Plan 1, Plan 2 and Plan 3): If you have retired, your monthly retirement benefit ceases. For more information on account payouts after death, call 360-664-7000. Accordingly, payments to your ex-spouse or ex-partner also cease unless you named your then-spouse or then-partner as your survivor.

For the month of your death, your monthly benefit will be prorated for the number of days you were living during the month. The prorated payment will be divided between your beneficiary or estate and your ex.

If you haven’t retired, your named beneficiary will receive your portion of your account and your ex-spouse or ex-partner will receive the portion of your benefit that was awarded to your ex.

Defined contribution (Plan 3): If a property division order awards an interest in your defined contribution account to your ex-spouse or ex-partner, your death will have no impact on your ex’s account.

However, your ex must begin taking payments from this account if not already doing so.

Definitions

Awarding an interest:
A court awards another party the right to receive payment of a portion of a monthly benefit and/or withdrawn contributions.
Dissolution order:
Any judgment, decree or order of spousal maintenance, property division or court-approved property settlement as part of a decree of divorce, dissolution, invalidity or legal separation. If you are in a relationship that isn’t legally binding, a dissolution order can’t divide your property.
Ex-spouse or ex-partner:
The person you have a legal relationship with that is ending; a party to a dissolution order.
RCW:
Revised Code of Washington, a source of state law.
WAC:
Washington Administrative Code, a source of state law.

Splitting an account into separate accounts

If a property division order splits your retirement account into two separate accounts — one for you and one for your ex-spouse or former registered domestic partner — the accounts become independent of each other. You can withdraw contributions after leaving employment or, once meeting age and service requirements, retire and receive a monthly benefit. Your ex can withdraw contributions or, once meeting age requirements, retire and receive a monthly benefit.

The property division order must contain the provisions and language the law requires. For more information, review:

Can the court split my retirement account?

If you are vested, yes. A court can approve a property division order to split your account into two separate accounts if you are vested in one or more of the following retirement plans:

  • Public Employees’ Retirement System (PERS) Plans 1, 2 and 3
  • Teachers’ Retirement System (TRS) Plans 1, 2 and 3
  • School Employees’ Retirement System (SERS) Plans 2 and 3
  • Public Safety Employees’ Retirement System (PSERS) Plan 2
  • Law Enforcement Officers’ and Fire Fighters’ Retirement System (LEOFF) Plan 2
  • Washington State Patrol Retirement System (WSPRS) Plan 2

LEOFF Plan 1 and WSPRS Plan 1 only: The awarding an interest section above applies to you. Splitting your account isn’t an option.

Does the property division order need to use specific language?

Yes. The exact language, however, depends on which retirement plan you’re in and when the property division order is filed with and signed by the court and accepted by DRS.

Before retirement
Plan 1 and Plan 2: The order must use the language cited in WAC 415-02-520(6). It also must specify the exact dollar amount of your ex’s monthly benefit and any lump sum amount. The order can’t use a formula or percentage.

If DRS can’t accept an order because it fails to meet these requirements, then a new order will need to be drafted.

Plan 3: A Plan 3 account consists of a defined benefit portion you receive at retirement and a defined contribution portion you can receive any time after you separate from your DRS-covered employment.

Because these are two separate parts to your retirement account, you can split one part without affecting the other. For example, if you were to split your defined contributions, you wouldn’t have to also split your defined benefit.

For the defined benefit portion, the order must contain the language in WAC 415-02-540(5).

For the defined contribution portion, the order must contain the language in WAC 415-02-540(9).

After retirement
Unless in LEOFF Plan 1 or WSPRS Plan 1, your account can be split after retirement only if you chose one of the survivor options for your then-spouse or then-partner at the time you retired.

Plan 1 and Plan 2: The order must use the language in WAC 415-02-520(9). It also must say the exact dollar amount of your ex’s monthly benefit. It can’t use a formula or percentage.

Plan 3: A Plan 3 account consists of a defined benefit portion you receive at retirement and a defined contribution portion you can receive any time after you separate from employment with your DRS-covered employer.

For the defined benefit portion, the order must contain the language in WAC 415-02-540(13).

For the defined contribution portion, any funds in your account can be split when the property division order is finalized, according to the provisions in WAC 415-02-540(9).

How much of my monthly benefit can my ex be awarded?

Plan 1 and Plan 2: A property division order can require DRS to pay up to 75% of your monthly retirement benefit to your ex-spouse or ex-partner. For more information, read RCW 41.50.670(4).

The ratio of the contributions awarded can’t be greater than the percentage of the monthly benefit. For example, if 50% of your monthly benefit is awarded, the contributions would also have to be 50%.

Example
Your ex’s awarded portion

During the marriage, you earned a $1,000 monthly benefit and $50,000 of accumulated contributions. If 50% is to be awarded, your property division order would need to specify a $500 monthly benefit or a $25,000 one-time payment of contributions.

Plan 3: Since Plan 3 consists of both defined benefit and defined contribution portions, the property division order can divide one portion without affecting the other.

An order can require DRS to pay up to 75% of your monthly retirement benefit to your ex-spouse or ex-partner. For more information, read RCW 41.50.670(4).

The court can also award up to 100% of your contributions to your ex-spouse or ex-partner. For more information, read WAC 415-02-540.

How do I know how much to specify for my ex in the order?

If you are drafting a property division order to split your account, please contact DRS. A Retirement Specialist can give you your account information. A specialist can also explain how the ending of your legal relationship might impact your retirement account.

You and your lawyer can use this information to decide the amount to award to your ex-spouse or ex-partner. DRS team members can offer guidance regarding the language. However, we can’t offer any legal counsel.

Can I amend an existing order to split my account into two?

In some cases, yes.

Before retirement
Once vested, you can split your account and amend an existing property division order. To do so, you need to get a court amendment of the initial order. An amended order must use the language in WAC 415-02-520 (Plan 1 or 2) or WAC 415-02-540 (Plan 3).

After retirement
You can amend an existing property division order only if you named your then-spouse or then-partner as your survivor when you retired. When the amended order is filed with and signed by the court and accepted by DRS, it will replace the prior order. That means your ex will no longer be your survivor.

If applicable, you can then name a new spouse or registered domestic partner as your survivor between the first and second anniversaries of your postretirement legal marriage or partnership.

If your existing order awards you 100% of the retirement benefit and you named your then-spouse or then-partner as your survivor when you retired, you still must file an amended order with DRS to split your account to remove your ex-spouse or ex-partner as survivor.

Doing so will increase your retirement benefit. The amended order must specify that you are to receive all of the split benefit and your ex is to receive zero dollars. See WAC 415-02-520(9) (Plan 1 or 2) or WAC 415-02-540(13) (Plan 3).

When will my ex receive payment or a monthly benefit?

Monthly benefit
Plans 1, 2 and 3: Your ex will receive a monthly benefit beginning the first month after:

  • The property division order is filed with and signed by the court
  • DRS accepts the order
  • Your ex reaches retirement age for your plan

The monthly benefit will be payable over your ex’s lifetime. Your ex can’t choose a survivor option for the monthly benefit but can name a beneficiary to receive any final payment that might be due after your ex’s death.

Withdrawal of contributions
Plan 1 and Plan 2: Your ex-spouse or ex-partner can choose to withdraw the contributions instead of collecting a monthly benefit. That means that making this choice cancels any right to a future monthly benefit.

Plan 3: If awarded a monthly benefit, your ex will receive it when your ex reaches age 65. For your defined contributions, once the split is transferred into an account for your ex-spouse or ex-partner, your ex can begin taking payments immediately. For more information on a withdrawal timeline, call Empower Retirement at 888-327-5596.

What happens to my account if the order is filed before I retire?

Once the order is filed with and signed by the court and accepted by DRS, we create a separate account for your ex. That separate account uses your ex’s Social Security number, not yours. You and your ex each control your accounts independent of each other.

My account options
If you meet the age and service credit requirements for retirement, you can retire and receive a monthly benefit for the rest of your life. Your monthly benefit will have been permanently reduced by the amount awarded to your ex-spouse or ex-partner in the property division order.

If you’re married or in a registered domestic partnership at the time you retire, you can choose a survivor option for your spouse or partner. Your ex’s payment choice won’t have any impact on your monthly benefit.

Plan 1 or Plan 2: If you quit working for your DRS-covered employer, you can withdraw your accumulated contributions. If you do, you give up your right to a future monthly benefit.

Plan 3: If you quit working for your DRS-covered employer, you can withdraw your contributions at any time. You will still receive your lifetime monthly benefit.

TRS Plan 1 only: Your benefit at retirement might include a lump sum cash-out of contributions as well as an ongoing reduced monthly benefit.

Your ex’s account options
Once your account is split, your ex has the same payment options you do except your ex must meet normal retirement age (see “Definitions”) for your retirement plan. Your ex’s payment choice won’t change your reduction amount specified in the order.

After your account has been split, your ex can withdraw the accumulated contributions.

Plan 1 or Plan 2: Taking this option means your ex gives up any right to a future monthly benefit.

Plan 3: If your ex-spouse or ex-partner is awarded a monthly benefit and meets the age requirements for your retirement plan, your ex can apply for retirement and receive a monthly lifetime benefit. Your ex-spouse or ex-partner can’t choose a survivor benefit option for a current spouse or partner but can name a beneficiary to receive any final payment that might be due.

The monthly benefit for your ex doesn’t have either a disability or early retirement option.

TRS Plan 1 only: Your ex’s benefit at retirement might include a lump sum cash-out of contributions as well as an ongoing reduced monthly benefit.

What happens to my account if the order is filed after I retire?

Once the order is filed with and signed by the court and accepted by DRS, we create a separate account for your ex-spouse or ex-partner. That separate account uses your ex’s Social Security number, not yours. You and your ex each control your accounts independent of each other.

An order can split your account only if you chose a survivor option when you retired. If you didn’t, the order can only award an interest in your account to your ex.

My account
Your lifetime monthly benefit will be recalculated according to WAC 415-02-520(7). Once your ex has been removed, you might be able to choose a new survivor or beneficiary to receive any final payment that might be due after your death. Please update your beneficiary choice through your online account or using the Beneficiary Designation form.

If you want to name your current spouse or partner as your new survivor, you must do so between your first and second anniversaries. If you are in LEOFF Plan 2, you must do so between your second and third anniversaries.

What happens if I return to work after retiring from my position?

If you return to public service in Washington state after you retire, your benefit could be affected, depending on the position and number of hours you work.

In certain circumstances, you might be required to become a member of and pay contributions to another retirement system. You might be able to work limited hours with no impact to your benefit.

Once your account is split, your choice regarding whether to return to work won’t have any impact on your ex’s account.

If you are considering returning to work after retirement and would like more information about the possible impacts on your monthly benefit, contact DRS.

What happens when my death or my ex’s death occurs?

Once your account is split, your death won’t affect your ex’s account and your ex’s death won’t affect yours.

If you chose a survivor benefit option when you retired, a monthly payment will go to your survivor after your death. If you didn’t choose a survivor option, a final payment might be made to your beneficiary or estate.

When your ex dies, a final payment might be made to your ex's beneficiary.


This document is a summary. It is not a complete description of how a property division can affect your retirement account. State retirement laws govern your benefit. If a conflict exists between the information in this document and what is contained in current law, the law governs.

Definitions

Dissolution order:
Any judgment, decree or order of spousal maintenance, property division or court-approved property settlement as part of a decree of divorce, dissolution, invalidity or legal separation. If you are in a relationship that isn’t legally binding, a dissolution order can’t divide your property.
Ex-spouse or ex-partner:

The person you have a legal relationship with that is ending; a party to a dissolution order.

Normal retirement age: The age at which you can retire with a full benefit:

  • PERS and TRS Plan 1: 60
  • PERS, SERS and TRS Plans 2 and 3: 65
  • LEOFF Plan 2: 53
  • WSPRS Plan 2: 55
RCW:
Revised Code of Washington, a source of state law.
Splitting an account:
A court awards a right to a separate retirement account that is created by dividing up your retirement account.
Vested:
A member has earned enough service credit to be eligible for a service retirement once meeting the applicable age requirements.
WAC:
Washington Administrative Code, a source of state law.


DCP

If you’re a Deferred Compensation Program (DCP) participant who wants to find out how legal actions might impact your DCP account, contact us by phone at 360-664-7966 or by email at RSA3@drs.wa.gov.

Other legal actions

Other legal actions can affect a retirement benefit as well. To learn more, read Can Legal Action Affect My Retirement Account?