The Honorable Keith N. Wood State Representative P.O. Box 1122 Hope, AR 71801-1122
Dear Representative Wood:
This is in response to your request for an opinion regarding Act 1143 of 1993, which is codified at A.C.A. §§ 9-18-101 through -103 (Repl. 1993). This act authorized chancery courts to enter qualified domestic relations orders to reach retirement annuities and benefits of retirement plans. Your specific questions regarding Act 1143 are as follows:
1. In calculating the amount of benefits to be received by an Alternate Payee pursuant to the approved QDRO (Qualified Domestic Relations Order), are the member's accrued annuity benefits calculated using the member's salary as of the date of his actual retirement and the years of service as of the date of divorce; or, are the benefits calculated using the member's salary as of the date of the divorce and his years of service as of the date of divorce?
2. Are increases in the member's salary received after the date of divorce `benefit enhancements' as contemplated by Paragraph V(d) of the model QDRO used by APERS (Arkansas Public Employees Retirement System)?
3. Are cost of living adjustments passed by the Arkansas Legislature the type of `benefit enhancements' contemplated by Paragraph V(d) of the model QDRO?
With regard to your first question, it appears that under the current uniform legal form for use in preparing QDRO orders,1 the alternative payee is paid either a fixed percentage of or a dollar amount from the member's accrued annuity as of the date of the divorce. (A copy of the form is enclosed for your convenience.) Thus the calculation would, in my opinion, be based upon the member's salary and years of service as of the date of the divorce.
The answer to your second question is, in my opinion, "no," based upon the current model language. Subsection V.D. states as follows:
The benefit enhancements provided by the Arkansas legislature for service during the marital relationship which are adopted after the end of the marital relationship apply to the alternate payee's portion of benefits under this Order.
It thus seems clear that "benefits enhancements" are those enhancements "provided by the Arkansas legislature. . . ." I cannot reasonably construe this language to encompass salary increases that are provided by a member's employer.
It appears that the answer to your third question is "yes," because that would be an enhancement "provided by the Arkansas legislature. . . ."
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.
Sincerely,
WINSTON BRYANT Attorney General
WB:EAW/cyh
1 The QDRO form was adopted pursuant to A.C.A. § 9-18-103 (Repl. 1993) which states, under subsection (b), that "[t]he boards of trustees of the retirement systems shall promulgate rules and regulations to implement this section and shall adopt a uniform legal form, as approved by the Legislative Council, for use in preparing qualified domestic relations orders for each retirement plan."