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| What do I do if my Spouse and I are getting divorced? |
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Going through divorce is one of the most difficult times in a person’s life. We at the San Antonio Fire & Police Pension Fund (SAFPPF) understand that and we are here to help guide you through the process as it affects your retirement benefits. In doing so, we hope to make the process as smooth as reasonably possible. However, please understand that we cannot give legal advice to individual members and this document shall not be interpreted as rendering legal advice or establishing any attorney-client relationship.
Contact SAFPPF As Soon as Possible
If you file a petition for divorce or you discover your spouse has done so, please contact us as soon as possible in order that we might assist you. We can help you understand your accrued benefits and also provide important documents which are better considered at the beginning of the process rather than at the end.
Pension Benefits are Property
Pension benefits which accrued while you are not married are considered your separate property and the court will typically award all of those benefits to you. The pension benefits you accrued during the marriage are, under most circumstances, considered community property and, unless otherwise agreed (discussed below), are divided equally by the court in a divorce proceeding. Please understand that the court divides property according to the community property laws of the State of Texas. The San Antonio Fire and Police Pension Fund does not make any determinations about property. Agreement between the spouses carries a great deal of weight with the court.
The Divorce Process is Slow
Even under the best of circumstances, when the divorce is amicable and there are no significant disputes between you and your spouse (such as a disagreement over child custody), the divorce process is slow. Texas law provides that, with few exceptions, a final divorce may not be granted until expiration of a period of 60 days from the time a formal petition is filed at the courthouse. During this “cooling off” period, there is usually plenty of time for you and your spouse to try to agree about how to divide your community property. You and your spouse may of course wish to be represented by counsel during this process. Since important legal rights are involved, SAFPPF encourages you consult with your attorney. Some couples agree that the member’s pension benefits are not to be divided (for example, if both parties have retirement plans of comparable value or if the SAFPPF member “gives up” some other asset of similar value in order to be able to keep the entire amount of his or her SAFPPF benefits). Especially in circumstances where there were only a few years of service during the marriage and it is expected that the member is many years away from retirement, both parties may benefit from a settlement such as this.
Divorce Decrees Don’t Have to Divide Your Pension Benefits
The divorce decree is the actual court order effectively dissolving the marriage. If the accrued pension benefits are not divided, you may not need anything further. The divorce decree should specifically address the fact that all benefits are awarded to the member. If you and your spouse agree to allow the retirement benefits to be awarded exclusively to the member, please let us know.
Divorce Decrees Dividing Property Need Special Treatment at SAFPPF through Domestic Relations Orders (DRO)
If in its decree the court divides your pension benefits and the parties want SAFPPF to make direct payments to the spouse (alternate payee), the court also signs a separate order either at the time of divorce or later, depending on the preferences of the parties getting divorced. This order is referred to as a “Domestic Relations Order.” Since the division of benefits must be one that SAFPPF can effectively administer and also must be compatible with the SAFPPF plan, it is important that the Domestic Relations Order be acceptable to SAFPPF in how it is written for various legal concerns. If it is not acceptable, SAFPPF will reject it. This is unfortunate in that it will cost you and your spouse time and money because rejection will require that the Domestic Relations Order be corrected and resubmitted to the court for signature. Because many courts and attorneys are not familiar with the SAFPPF plan, it has been difficult for them to prepare Domestic Relations Orders that meet SAFPPF requirements.
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Get Help From SAFPPF Early On with a Qualified Domestic Relations Order
To help our members avoid rejection of DROs, the SAFPPF has developed a Domestic Relations Order form for your use. Domestic Relations Orders that meet the requirements of state law and SAFPPF requirements are considered “qualified” and the Domestic Relations Order is considered a Qualified Domestic Relations Order or “QDRO” for short (usually pronounced “qua-drow”).
We strongly encourage you to involve SAFPPF staff early-on in the process, to help make sure the Domestic Relations Order is in proper form and that the calculations relied upon for the Domestic Relations Order (and the divorce decree) are accurate. If you file a petition for divorce or you discover your spouse has done so, please contact us as soon as possible in order that we might assist you.
Filing a QDRO or DRO with SAFPPF
Hopefully SAFPPF has already seen a draft Domestic Relations Order before the judge signs it, as described above. However, once the judge has signed the Domestic Relations Order, one of the parties or their attorneys should send a certified copy of the Domestic Relations Order to SAFPPF, along with a regular, (not certified) copy of the divorce decree (if it has not previously been provided). A certified copy of the Domestic Relations Order must be obtained directly from the clerk of the court that granted the divorce. Be sure to send a certified copy bearing the original certification of the clerk indicating that the clerk has reviewed the original order and certified that the copy is a true and correct copy. Please do not just send a copy of the certified copy.
SAFPPF Review of DROs
When SAFPPF staff receives the certified copy of the Domestic Relations Order, staff will review the order to determine whether it meets all criteria established by law and the SAFPPF plan and whether it should be considered “qualified”, as discussed above. The law requires this review, even if you use our Qualified Domestic Relations Order form (just because the form is titled “Qualified Domestic Relations Order” does not mean it is automatically considered “qualified” – it still must pass scrutiny). SAFPPF staff will notify both parties and their attorneys in writing of the determination. Again, this is why SAFPPF should be involved early-on in the divorce process.
Although we will make every effort to try to promptly determine whether a Domestic Relations Order is qualified, there are times when it takes a little longer (especially when our form QDRO is not used). During this period, any amounts which would be payable to an alternate payee according to and as though the Domestic Relations Order constitutes a QDRO shall not be paid to the member but shall be separately accounted for pending determination of qualified status. If the Domestic Relations Order is determined to be a QDRO, those benefits separately accounted for shall be paid to the alternate payee.
Special Circumstances – Remarriage and Multiple Divorces
A couple of other items of note: (1) If a QDRO is in effect, it remains in effect until the court dissolves it - even if you and your former spouse remarry. If you and your spouse remarry, don’t forget to dissolve the QDRO (unless you don’t want to for some reason – but you should seek legal advice); (2) If you are involved in more than one divorce, SAFPPF can administer more than one QDRO provided the subsequent Domestic Relations Order does not attempt to require SAFPPF to pay benefits to the second alternate payee that are required to be paid to the first alternate payee. You should follow the process described above for each Domestic Relations Order.
If you or your attorney has any questions or need calculations or the form QDRO, call or e-mail Gail Jensen, General Counsel (gjensen@safppf.org), with the understanding that we will help as much as possible but cannot give legal advice to either you or your spouse.
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