CalPERS & Divorce: What You Need to Know about DROs

CalPERS & Divorce: What You Need to Know about DROs

The California Public Employees’ Retirement System (CalPERS) provides benefits to more than 1.6 million people.  If you or your former spouse is a CalPERS member, you should be aware of how CalPERS benefits can be divided due to divorce or legal separation.

CalPERS Community Property and Governing Law

Just like other assets acquired during marriage, California community property law allows CalPERS benefits to be divided upon dissolution or legal separation of a marriage or registered domestic partnership.  Unlike many private retirement plans, CalPERS is not bound by ERISA or Section 414(p) of the Internal Revenue Code; but is instead codified in the California Public Employee’s Retirement Law (PERL).  CalPERS is a defined benefit plan and is divided by filing a Domestic Relations Order (DRO) with the court and providing a certified copy to CalPERS.

First Steps: Notify CalPERS of the Claim & Requesting Information on a Member’s Account

One of the first steps that the nonmember should take to protect his/her interest is to send written notice to CalPERS that he/she will be making a claim for his/her share of the community property in a member’s account.  The written notice most commonly takes the form of a joinder, which is a legal document that joins CalPERS as a party to the dissolution or separation.  This will place a community property hold on the member’s account that can only be removed by submitting a court order or through other formal, written procedures.  This will ensure that CalPERS will release no benefits to an active member until the hold is removed, or will reduce a retired member’s monthly benefit by ½ until the hold is removed.

Legally, a member’s retirement file is confidential and can only be accessed by the member or his/her authorized representative.  However, information can be released to the nonmember and his/her attorney if either i) the member provides written authorization for the release of information, ii) CalPERS has been joined as a party to the legal separation or dissolution, or iii) a valid subpoena duces tecum is served on CalPERS.  Once CalPERS has a valid request for information, they will provide the following information:

  1. A statement of the member’s accumulated contributions and interest for the specific time period requested.
  2. A statement regarding the member’s years of service credit.
  3. A statement showing the member’s classification (i.e. State, local, or safety member) and the benefit formula applicable to the member.
  4. If the member is already retired, the plan will provide information about the option elected at retirement, the beneficiary, the amount of the gross monthly allowance, and details about any death benefit payable.
Methods of Division:  Separation of Account or Time Rule Formula

There are two methods of division for a CalPERS account, i) Separation of Account or ii) Time Rule Formula.  The Separation of Account method can only be used for members who are not yet retired.  The Time Rule Formula can be used by both retired and non-retired members.  Once a member is retired, rather than the time rule, a DRO can specify a flat dollar amount or percentage of the member’s monthly payments that should be payable to the nonmember spouse.  The main differences between the two methods of division are summarized in the chart below:

 Basic   method information  Allows the community property interest in a member’s pension to be separated into 2 accounts – one in the name of the   member and one in the name of the nonmember spouse.  Can only be used by active or inactive   members, not retired members. There will only be one account (in member’s   name) and nonmember spouse receives a lifetime benefit equal to his or her   community property interest.
How   Division of Benefits is Calculated The amount awarded to the nonmember spouse   is usually 50% of the member’s accumulated contributions, interest, and   associated service credit earned during the marriage.  Nonmember’smonthly benefit will be calculated using member’s   salary on the date of dissolution, the nonmember’s age at the date of   retirement, and the amount of service credit awarded to the nonmember spouse. CalPERS will calculate the service credit   earned from the date of marriage to date of separation, and what percentage   of the monthly benefit is payable to the former spouse as his/her community   property interest.  The calculation   will use member’s final compensation at time of retirement.
Nonmember   Spouse’s Benefit Commencement Possible when both parties reach the minimum   retirement age. Nonmember spouse’s interest can only be paid   by CalPERS at the time that benefits become payable (member’s retirement date   or death).
Nonmember   Spouse’s Payment Options Monthly allowance, or withdrawal by nonmeber   refund or rollover. Monthly allowance.  The DRO should also specify that CalPERS   should pay the nonmember spouse “by separate warrant” – otherwise the member   is responsible for paying the nonmember spouse each month.
Optional   Settlement at Retirement No restrictions on member’s election.Nonmember spouse can elect an option for   his/her account and name beneficiaries. Generally, a DRO states that a member must   elect optional settlement 4 and name nonmember spouse as beneficiary to the   extent of his/her community property interest. Parties should also negotiate   about how the cost of the benefit is to be applied, i.e. against the member’s   share, against the nonmember’s share, or equally.
Death   Benefits Member’s death does not affect Nonmember’s   spouse’s separate account.  Nonmember   spouse can designate a beneficiary for a one-time lump sum death benefit. Upon Member’s death Nonmember spouse   receives his/her community property interest in any lump sum or other death   benefits payable by the Plan, and any benefits required by the Option elected   at retirement.Upon Nonmember’s death, his/her share can   either i) stop and revert to the member or ii) be paid to Nonmember’s named   beneficiaries.
CalPERS Health Benefits and Divorce

Although health care can be provided under a CalPERS sponsored health plan, health benefits to a former spouse terminate on the last day of the month in which the marriage terminated.  CalPERS Health benefits are not subject to a Domestic Relations Order or DRO.

Other Concerns: Elective Service Credit, Cost-of-Living Increases, Waiver of Benefits

It is important to address any elective service credit in the DRO.  Elective service credit can be from service prior to membership, a redeposit of refunded contributions, any additional retirement service credit, or military service.  If the Domestic Relations Order does not address elective service credit, later purchases of credit or deposits of credit will be treated as the member’s separate property interest.

Generally a DRO will provide that the nonmember’s interest will increase proportionately with any cost-of-living increase or similar increase.  If this is not the parties’ intent, it should be addressed in their judgment or marital settlement agreement.

If it is the agreement of the parties that the nonmember spouse will forever waive his/her interest in all CalPERS benefits, a written Waiver of Community Property should be completed and given to the plan administrator or a court order or DRO should be filed that awards the entire CalPERS benefit to the Member.

Need Help With Your CalPERS DRO?

If you and your former spouse need assistance with dividing CalPERS benefits, you can email a knowledgeable QDRO lawyer at or call 619-786-QDRO to get started today!

DISCLAIMER: Any legal information on this blog has been prepared by QDRO Helper for informational purposes only and should not be construed as legal advice. The material posted on this website is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Note that sending an e-mail to QDRO Helper does not create an attorney-client relationship, and none will be formed unless there is an express agreement between the firm and the individual.