Chapter 40
us-hi-regs-official-2a5887e99de4795f374aae93e3bb2b1d1180e2c49a4a122268f055e42766f600Chapter 40Regulation
HAWAII ADMINISTRATIVE RULES TITLE 6 DEPARTMENT OF BUDGET AND FINANCE EMPLOYEES’ RETIREMENT SYSTEM CHAPTER 40 HAWAII DOMESTIC RELATIONS ORDERS Subchapter I General Provisions §6-40-] Definitions §6-40-2 Specification of amount or percentage to be paid or the manner in which the amount or percentage is to be determined §6-40-3 Request for information by a spouse or former spouse regarding member, former member with vested benefit status, or retirant §6-40-4 Responsibilities of alternate payecs to the system Subchapter 2 Review of Domestic Relations Orders and Proposed Domestic Relations Orders for Qualification as Hawaii Domestic Relations Orders §6-40-5 Required forms of Hawaii domestic relations orders §6-40-6 Review of proposed domestic relations orders §6-40-7 Review of domestic relations orders for qualification as Hawaii domestic relations orders §6-40-8 Fees and charges for review and processing of domestic relations orders or proposed domestic relations orders 40 I - 3365
Subchapter 3 Payments Pursuant to Hawaii Domestic Relations Orders §6-40-9 Withdrawal of accumulated contributions or hypothetical account balance §6-40-10 Pre-retirement Hawaii domestic relations order §6-40-1 1 Pre-retirement domestic relations orders under review §6-40-12 Post-retirement Hawaii domestic relations orders §6-40-13 Priority of Hawaii domestic relations orders §6-40-14 Effect of payments to alternate payecs upon death benefits §6-40-15 Alternate payee’s claim for payment SUBCHAPTER I GENERAL PROVISIONS §6-40-1 Definitions. Unless a different meaning is plainly required by the context, definitions generally applicable in this chapter are also provided in 88-93.5, HRS, and chapter 88, HRS. As used in this chapter: ‘Benefit the member or former member with vested benefit status is expected to receive” means the benefit the member or former member with vested benefit status is expected to receive without regard to any Hawaii domestic relations order. “Benefit the retirant is receiving” means the benefit the retirant is receiving without regard to any Hawaii domestic relations order. ‘Hawaii domestic relations order” means a domestic relations order that: (1) Creates or recognizes the right of an alternate payee, or assigns to an alternate payee, the right to receive all or a portion of the benefits payable with respect to a member or retirant under the system; (2) Directs the system to disburse benefits to the alternate payee; (3) Clearly specifies: (A) The name and last known mailing address, if any, of the member or retirant: (B) The name and mailing address of the alternate payee covered by the order; 40 2 - 3365
(C) The amount or percentage of the member’s or retirant’s benefits to be paid by the system to the alternate payee, or the manner in which the amount or percentage is to be determined; and (D) That the order applies to the system; and (4) Does not: (A) Purport to require the designation by the member or retirant, of a particular person as the recipient of benefits upon the death of the member or retirant; (B) Purport to require the selection of a particular benefit payment plan or option or to limit the benefit payment plans or options from which the member may select; (C) Require any action on the part of the system contrary to its governing laws or plan provisions other than the direct payment of the benefit awarded to an alternate payee; (D) Make the award to the alternate payee an interest that is contingent on any condition other than those conditions resulting in the liability of the system for payment under its plan provisions; (E) Purport to give to someone other than a member or retirant the right to designate a beneficiary or to choose any retirement plan or option available from the system; (F) Attach a lien to any part of amounts payable with respect to a member or retirant; (G) Award an alternate payee a portion of the benefits payable with respect to a member or retirant under the system and purport to require the system 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; (H) Purport to require the system, without action by the member, to terminate a member from membership or employment, to refund contributions, or to retire a member; (I) Provide any type or form of benefit, or any option, not otherwise provided by the system; (J) Provide increased benefits, determined on the basis of actuarial value; or 40 3 - )365
(K) Require the system to provide benefits or refunds to an alternate payee that are required to be paid to another alternate payee pursuant to an earlier Hawaii domestic relations order; and (5) Meets the other requirements of section 88-93.5, HRS. [Eff ] (Auth: §88-28 and 88-93.5) (Imp: §88-93.5) 01 §6-40-2 Specification of amount or percentage to be paid or the manner in which the amount or percentage is to be determined. (a) A domestic relations order received by the system prior to a member’s or former member’s with vested benefit status retirement and termination of membership in the system. relating to retirement benefits upon retirement pursuant to sections 88-73, 88-75, 88-79, 88-281, 88-284, 88-285. 88-33 1, 88-334 or 88-336, HRS, and/or withdrawal of accumulated contributions or hypothetical account balance benefits upon termination of membership in the system pursuant to section 88-61, HRS, shall clearly specify the amount or percentage of the benefit the member or former member with vested benefit status is expected to receive, to be paid by the system to the alternate payee, or the manner in which the amount or percentage is to be determined, in the manner set forth in the domestic relations order forms adopted by the board, or by specifying: (1) The monthly retirement allowance under the retirement allowance option elected by the member or former member with vested benefit status, as follows: (A) A percentage of the member’s or former member’s with vested benefit status monthly retirement allowance under the retirement allowance option elected by the member or former member with vested benefit status, determined by the following formula: 40 4 - 5365
_________% ____________________ ___________________ ____________________________________ Months of service credits the system determines has been credited to the member or former member with vested benefit from status (date of marriage) through (date of (fractional divorce) marital X property interest) Total months of service credit the system determines has been credited to the member or former member with vested benefit status upon retirement (B) A percentage of the member’s or former member’s with vested benefit status monthly retirement allowance under the retirement allowance option elected by the member or former member with vested benefit status (C) A dollar amount of the member’s or former member’s with vested benefit status monthly retirement allowance under the retirement allowance option elected by the member or former member with vested benefit status; or (D) None; (2) The refund of accumulated contributions under the retirement allowance option providing for the refund of accumulated contributions elected by the member or former member with vested benefit status, if any, as follows: (A) A percentage of the member’s or former member’s with vested benefit status refund of accumulated contributions under the retirement allowance option providing for the refund of accumulated contributions elected by the member or former member with vested benefit status, if any, determined by the following formula: 40 5 - 365
__________% ___________________ _____________________ Months of service credits the system determines has been credited to the member or former member with vested benefit status from (date of marriage) through (date of (fractional divorce) marital X property interest) Total months of service credit the system determines has been credited to the member or former member with vested benefit status upon retirement (B) A percentage of the member’s or former members with vested benefit status refund of accumulated contributions under the retirement allowance option providing for the refund of accumulated contributions elected by the member or former member with vested benefit status, if any; (C) A dollar amount of the member’s or former member’s with vested benefit status refund of accumulated contributions under the retirement allowance option providing for the refund of accumulated contributions elected by the member or former member’s with vested benefit status, if any; or (D) None; (3) The withdrawal of accumulated contributions and/or hypothetical account balance resulting in or upon a member’s or former member’s with vested benefit status termination of membership in the system, if any, as follows: (A) A percentage of the member’s or former member’s with vested benefit status withdrawal of accumulated contributions and/or hypothetical account balance, if any, determined by the following formula: 40 6 - 5365
_________% ____________________ ___________________ __________________________________ Months of service credits the system determines has been credited to the member or former member with vested benefit status from (date of marriage) through (date of (fractional divorce) marital X property interest) Total months of service credit the system determines has been credited to the member or former member with vested benefit status upon termination of membership (B) A percentage of the member’s or former member’s with vested benefit status withdrawal of accumulated contributions and/or hypothetical account balance, if any; (C) A dollar amount of the membefs or former members with vested benefit status withdrawal of accumulated contributions or hypothetical account balance, if any; or (D) None; (4) The amount or percentage of the benefit the member or former member with vested benefit status is expected to receive, to be paid by the system to the alternate payee: (A) Shall not provide any type of or form of benefit, or any option, not otherwise provided by the system; (B) Shall not provide increased benefits, determined on the actuarial value; (C) Shall not provide benefits to the alternate payee required to be paid to another alternate payee pursuant to an earlier Hawaii domestic relations order; (D) Shall be paid in priority pursuant to section 6-40-13; 40 7 - 3365
(E) Shall not exceed the benefit the member or former member with vested benefit status is expected to receive, less benefits required to be paid to another alternate payee pursuant to an earlier Hawaii domestic relations order; (F) Shall, in the case of a member or former member with vested benefit status who terminates membership in the system by withdrawal of contributions or hypothetical account balance and resumes membership in the system, include no portion of any benefits payable to the member or former member with vested benefit status that result from the resumption of membership after the system’s receipt of the certified copy of domestic relations order determined to be a Hawaii domestic relations order, even if those benefits result in part from reinstatement of service credits initially credited during marriage; and (G) Shall, in the case of a member or former member with vested benefit status who retires and returns to employment requiring active membership in the system, include no portion of any benefits payable to the member or former member with vested benefit status that result from the resumption of membership after the system’s receipt of the certified copy of domestic relations order determined to be a Hawaii domestic relations order; and (5) The payment of the filing fee in effect at the time that the order is submitted, and charges for legal and actuarial services, as follows: (A) The filing fee in effect at the time that the order is submitted to the system shall be paid before the order is processed or reviewed by the system; (B) The charges for legal and actuarial services shall be paid before the system may issue notification of determination on an order; (C) The filing fee in effect at the time that the order is submitted, and charges for legal and actuarial services, shall be paid as follows: (i) A percentage to be paid by the member or former member with vested benefit status; and 40 8 - )365 m
(ii) A percentage to be paid by the alternate payee; and (D) The person who requests the review of the order to establish whether the order meets the requirements for a Hawaii domestic relations order shall: (i) Collect and provide payment of filing fees from all parties as stated above, to the system at the time of the request for review of the order is made; and (ii) Collect and provide payment of charges for legal and actuarial services from all parties as stated above, to the system prior to the system’s issuance of a notification of determination on an order. (b) A domestic relations order received by the system after the retirement of a member, former member with vested benefit status, or retirant, relating to retirement benefits following retirement pursuant to sections 88-73, 88-75, 88-79, 88-281, 88-284, 88-285, 88-33 1, 88-334 or 88-336, 1-IRS, shall clearly specify the amount or percentage of the retirement benefit the retirant is receiving, to be paid by the system to the alternate payee, or the manner in which the amount or percentage is to be determined, in the manner set forth in the domestic relations order forms adopted by the board, or by specifying: (1) The amount or percentage of monthly retirement allowance under the retirement allowance option elected by the retirant, if any, as follows: (A) A percentage of the retirant’s monthly retirement allowance under the retirement allowance option elected by the retirant, determined by the following formula: 40 9 - 3365
Months of service credits the system determines has been credited to the retirant from (date of marriage) through (date of % divorce) (fractional marital x property Total months of service credit the interest) system determines has been credited to the retirant upon retirement (B) A percentage of the retirant’s monthly retirement allowance under the retirement allowance option elected by the retirant; (C) A dollar amount of the retirant’s monthly retirement allowance under the retirement allowance option elected by the retirant, not to exceed the total distribution of the retirant’s monthly retirement allowance under the retirement allowance option elected by the retirant; or (D) None; (2) The commencement of payment of the amount or percentage of monthly retirement allowance under the retirement allowance option elected by the retirant, as follows: (A) The commencement date for payment of the amount or percentage of the retirant’s monthly retirement allowance under the retirement allowance option elected by the retirant, not to precede the first day of the month following the date upon which the domestic relations order is determined to be qualified as a Hawaii domestic relations order; or (B) Payment of the amount or percentage of the retirant’s monthly retirement allowance under the retirement allowance option elected by the retirant shall commence on 40-10 3365
the first day of the month following the date upon which the domestic relations order is determined to be qualified as a Hawaii domestic relations order; (3) The amount or percentage of the retirement benefit the retirant is receiving, to be paid by the system to the alternate payee: (A) Shall not provide any type of or form of benefit, or any option, not otherwise provided by the system; (B) Shall not provide increased benefits, determined on the actuarial value; (C) Shall not provide retirement benefits to the alternate payee required to be paid to another alternate payee pursuant to an earlier Hawaii domestic relations order; (D) Shall be paid in priority pursuant to section 6-40-13; (E) Shall not exceed the retirement benefit the retirant is receiving, less retirement benefits required to be paid to another alternate payee pursuant to an earlier Hawaii domestic relations order; and (F) Shall, in the case of a rctirant who returns to employment requiring active membership in the system, include no portion of any benefits payable to the retirant that result from the resumption of membership after the system’s receipt of the certified copy of domestic relations order determined to be a Hawaii domestic relations order; and (4) The payment of the filing fee in effect at the time that the order is submitted, and charges for legal and actuarial services, as follows: (A) The filing fee in effect at the time that the order is submitted to the system shall be paid before the order is processed or reviewed by the system; (B) The charges for legal and actuarial services shall be paid before the system may issue notification of determination on an order; (C) The filing fee in effect at the time that the order is submitted, and charges for legal and actuarial services, shall be paid as follows: (i) A percentage to be paid by the retirant; and (ii) A percentage to be paid by the alternate payee: and 40 11 -
(D) The person who requests the review of the order to establish whether the order meets the requirements for a Hawaii domestic relations order shall: (i) Collect and provide payment of filing fees from all parties as stated above, to the system at the time of the request for review of the order is made; and (ii) Collect and provide payment of charges for legal and actuarial services from all parties as stated above, to the system prior to the system’s issuance of a notification of determination on an order. (c) For the purposes of this chapter, the number of months of service credits the system determines has been credited to a member, former member with vested benefit status, or retirant during a specified period shall be calculated pursuant to chapter 88, HRS, and chapters 6-21 and 6-29, HAR. [Eff JUL d 1 Zü’20 j (Auth: §88-28 and 88-93.5) (Imp: §88-93.5) §6-40-3 Request for information by a spouse or former spouse regarding member, former member with vested benefit status, or retirant. (a) The request for information form provided by the system shall be used by a spouse or former spouse of a member, former members with vested benefits, or retirant, to make a written request for information relevant to a spouse’s or former spouse’s interest in the member’s, former member’s with vested benefits, or retirant’s benefits. The system may reject as noncompliant with the requirements for a request for information, any request for information that is not in a form provided by the system. The system shall make available on the system’s website the required forms of request for information, approved by the system’s board of trustees at a meeting of the board duly noticed as provided by section 92-7, HRS. (b) Upon receipt of the completed request for information form and a copy of the complaint for divorce or divorce decree, certified by the clerk of the court in which the complaint or decree was filed, the system will provide to the spouse or former spouse information relevant to the spouse’s or former spouse’s interest in the member’s, former member’s with vested benefits, or retirant’s benefits, as of the date of the receipt of the form. (c) The system is not required to notify the member, former member with vested status, or retirant of the system’s receipt of a request for information under this section; provided that the system may confirm whether the system has 40 12 - )365
received a request for information if a member, former member with vested status, or retirant asks the system whether the system has received any requests for information under this section. [Eff I (Auth: §88-28 and 88-93.5) (Imp: §88-93.5) I §6-40-4 Responsibilities of alternate payees to the system. The alternate payee shall promptly: (1) Provide the system with a certified copy of the Hawaii domestic relations order and any modifications or amendments to the order; (2) Notify the system in writing of the alternate payee’s address and any change to the alternate payee’s name or address; (3) Submit any claims, applications or forms required by the system to effectuate any provisions of the Hawaii domestic relations order; (4) Comply with all reasonable requests from the system for information and documentation necessary for processing payment of all or any portion of payments to the alternate payees under the Hawaii domestic relations order; and (5) Return to the system any payment received by the alternate payee that should not have been made by the system to the alternate payee and is notpayable to the member, or retirant. [Eff JUL 0 i 22O I (Auth: §88-28 and 88-93.5) (Imp: §88-93.5) SUBCHAPTER 2 REVIEW OF DOMESTIC RELATIONS ORDERS AND PROPOSED DOMESTIC RELATIONS ORDERS FOR QUALIFICATION AS HAWAII DOMESTIC RELATIONS ORDERS §6-40-5 Required forms of Hawaii domestic relations orders. The Hawaii domestic relations order forms provided by the system shall be used by the parties to a domestic relations order, as well as by the court; provided that the system may waive the use of forms provided by the system if a domestic relations order issued by a court of another state otherwise complies with the requirements 40- 13
for a Hawaii domestic relations order. The system may reject as noncompliant with the requirements for a Hawaii domestic relations order any domestic relations order that is not in a form provided by the system. The system shall make available on the system’s website the required forms of Hawaii domestic relations orders, approved by the system’s board of trustees at a meeting of the board duly noticed as provided by section 92-7, HRS. [Eff JUL 0 1 l I (Auth: §88-28 and 88-93.5) (Imp: §88-93.5) §6-40-6 Review of proposed domestic relations orders. (a) A person who wishes to have the system review a proposed domestic relations order to establish whether it meets the requirements for a Hawaii domestic relations order shall complete and submit to the system a request for review form furnished by the system, a copy of the proposed order, and the filing fee. The request for review shall include an address and telephone number at which the person requesting the review may be contacted. If the order has been entered by a court, the order must be certified by the clerk of the court that entered the order. (b) The person requesting review of proposed domestic relations order must be the member, the former member with vested benefit status, the retirant, the spouse or former spouse of the member, former member with vested benefit status, or retirant, or an authorized representative of any of the foregoing. If the spouse or former spouse of a member, former member with vested benefit status, or retirant, or an authorized representative of either of the foregoing is the person requesting review of a proposed domestic relations order, the person requesting the review shall also submit a copy of the complaint for divorce, or divorce decree, certified by the clerk of the court in which the complaint was filed, for the action in which the proposed domestic relations order is proposed to be entered. (c) Upon completion of the system’s review of a proposed domestic relations order, the system shall not issue a determination that a proposed domestic relations order is or is not a Hawaii domestic relations order, but shall issue a notification to the person requesting the review whether or not the proposed order meets the requirements for a Hawaii domestic relations order. (d) The system is not required to notify a member, former member with vested benefit status, or retirant of the system’s receipt of a proposed domestic relations order for review or issuance of notification under this section; provided 40- 14 5365
that the system may confirm whether the system has received a proposed order for review or issued a notification if a member, former member with vested benefit status, or retirant asks the system whether the system has received a proposed domestic relations order for review or issued a notification under this section. (e) The system’s notification whether or not a proposed order meets the requirements for a Hawaii domestic relations order is advisory only and is not a determination by the system that the proposed order is or is not a Hawaii domestic relations order. [Eff ] (Auth: §88-28 and 88-93.5) (Imp: §88-93.5) §6-40-7 Review of domestic relations orders for qualification as Hawaii domestic relations orders. (a) A person who wishes to have the system review a domestic relations order entered by a court to establish whether it meets the requirements for a Hawaii domestic relations order shall complete and submit to the system a request for review form furnished by the system, a copy of the order, certified by clerk of the court that entered the order, and the filing fee. The request for review shall include an address and telephone number at which the person requesting the review may be contacted. (b) The person requesting review of a domestic relations order entered by a court must be the member. the former member with vested benefit status, the retirant, the spouse or former spouse of the member, the former member with vested benefit status, or retirant, or an authorized representative of any of the foregoing. (c) If a domestic relations order is submitted for review after it has been entered by the court and is thereafter amended with the intention that it shall be a Hawaii domestic relations order, the member, retirant, or the alternate payee shall submit a certified copy of the amended order to the system. The system shall review any amended order that it receives according to the same rules applicable to all other orders, including payment of processing fees and costs. (d) Upon completion of the system’s review of a domestic relations order that has been entered by a court, the system shall issue to the member, former member with vested benefit status, or retirant and the alternate payee, a determination, in writing, that the order is or is not a Hawaii domestic relations order, identifying any requirements that the order does not meet. 40-15 5 3 (
