Divorce and Your Benefits

Submitting a DRO

Divorce and Your Benefits

A proposed Domestic Relations Order (DRO) should be submitted to the Matrimonial Bureau for review and approval prior to being forwarded to the court for signature. If approved by the Retirement System, the proposed DRO must then be signed by a Supreme Court judge and entered as an official court document. The Retirement System requires a certified photocopy of the final order, which we will keep on file. DROs should be submitted to:

Matrimonial Bureau
New York State and Local Retirement System
110 State Street — Mail Drop 7-9
Albany, New York 12244-0001

If the Participant is already receiving a pension benefit at the time the final DRO is submitted, the ex-spouse’s distribution will commence with the next available pension payroll period. If an ex-spouse is entitled to a retroactive distribution, the DRO should clearly state that intent and provide a payment schedule setting forth an additional deduction to be taken from the Participant’s retirement allowance until the ex-spouse’s retroactive payment is satisfied in full.

Retirement System policy requires proof of divorce before implementation of a DRO. Please provide the Retirement System with a certified photocopy of the Judgment of Divorce.

Obtaining Information about a Participant’s Benefits

The Retirement System cannot release certain information regarding a Participant without a signed authorization and release from the Participant. The authorization must:

  1. Specifically be addressed to the New York State and Local Retirement System;
  2. Specifically identify the party(ies) authorized to receive information; and
  3. Specifically identify the information to be released.

The Retirement System will not accept a general release.

Alternatively, the information sought may be obtained by subpoena. In accordance with New York State Civil Practice Law and Rules Section 2307, a Subpoena Duces Tecum to be served on a bureau or department of the State of New York must be “So Ordered” by a Justice of the Supreme Court in the district where the records are located or, for actions within New York State, by a Judge of the Court in which the action is placed on trial. The Retirement System will reject an attorney-issued subpoena.

Additionally, service by mail is not effective without a prior attempt at personal service.

To be effective, a Judicial Subpoena Duces Tecum must be “So Ordered” and personally served on the New York State and Local Retirement System at our offices in Albany or New York City:

New York State and Local Retirement System
110 State Street
Albany, NY 12244-0001

New York State and Local Retirement System
59 Maiden Lane — 31st Floor or 30th Floor*
New York, NY 10038

*Updated 1/19

Avoiding a Rejected DRO

The Retirement System, as a governmental plan, has discretion to reject a DRO. Orders that are vague, contain inconsistent or contradictory provisions, or are contradictory to plan requirements or New York State law, will be rejected. Reasons for rejection may include:

  • Qualified Status — References to a qualified status, the Employee Retirement Income Security Act (ERISA), the Retirement Equity Act of 1984 or the provisions of the Internal Revenue Code (IRC) must be deleted from any proposed or final DRO.
  • Assignment — Retirement System Participants are prohibited from making an assignment of retirement benefits (Retirement and Social Security Law Section 110). A distribution may be made following the specific direction of the court only.
  • Earliest Retirement Age — The earliest date benefits will be paid to a Participant or an ex-spouse is the Participant’s actual date of retirement. Benefits cannot commence at the Participant’s earliest eligible retirement age. The laws of the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (IRC) that provide for pension distributions at the earliest eligibility age are not applicable to governmental plans such as the Retirement System.
  • Lump Sum Distribution — The Retirement System cannot accept references to lump sum distributions. Retirement System benefits are payable on a monthly basis and, unless the Participant is a member of the Police and Fire Retirement System in a Special 20- or 25- Year Plan which allows for a partial lump sum distribution, a lump sum distribution is not possible.
  • Surviving Spouse Language — The Retirement System cannot accept references to treating the ex-spouse as a surviving spouse. The provisions of Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (IRC) that create benefits on behalf of a surviving spouse do not apply to governmental plans such as the Retirement System. Accordingly, we recognize no special interest in the status of “surviving spouse.”
  • Separate Accounts — The Retirement System does not maintain separate accounts for Participants and ex-spouses. All of the assets of the Retirement System are held for investment purposes in the Common Retirement Fund. Upon retirement, a Participant’s retirement benefit is calculated according to his or her retirement plan and the amount necessary to provide for the pension is transferred to the pension reserve fund. The retirement benefit and any distributions taken in favor of the ex-spouse are then paid on a monthly basis from the pension reserve fund. Accordingly, there is no statutory authority to establish a separate account for an ex-spouse.
  • Ex-spouse Beneficiary Designation — An ex-spouse is not permitted to designate a beneficiary or elect a form of payment. There is no provision in the Retirement and Social Security Law for an ex-spouse to designate a beneficiary or to elect a method of payment. The qualifications and rights of membership are established by statute (see Retirement and Social Security Law Article 2, Title 5). There is no authority given to grant the rights and privileges of membership to a third party.
  • Spousal Consent — Unlike private pension plans, governmental plans are not required to obtain a spouse’s consent to the waiver of benefits.
  • Renunciations — The beneficiary under a “pop-up” retirement option election may not renounce his or her beneficiary status as a means to prematurely recalculate the Participant’s retirement benefit to the Single Life Allowance Option.
  • Option Elections — If a Participant is already retired at the time a DRO is submitted to the Retirement System and the Participant’s option election at the time of retirement was not made in violation of a pre-existing court order or agreement, then his or her option election is irrevocable. The Retirement System cannot accept a DRO requiring the Participant to designate the ex-spouse as a beneficiary under another option election.