ETF 20.35(2)(b)
(b)
Debts of the participant. Any debt, memorandum account or account receivable balance reflecting amounts owed by the participant to the department, the fund or any benefit plan, accrued as of the decree date and still outstanding at the time the account or annuity is divided, shall be divided between the participant and alternate payee in the same proportion as the participant's account or annuity.
ETF 20.35(3)
(3)
Dividing account when participant was not an annuitant on decree date. If the participant was not an annuitant on the decree date, the department shall divide the participant's account as provided in s.
40.08 (1m) (b) 1.,
(c),
(d) and
(f) 1., Stats., and as follows:
ETF 20.35(3)(a)
(a)
Creditable service. Creditable service which the participant has been granted as of the decree date is a part of the Wisconsin retirement system account of a participant and shall be divided in the same ratio as other account balances. The creditable service and amounts awarded to the alternate payee shall be in a separate account in the fund for the benefit of the alternate payee. After the division under this section, the alternate payee may apply for a separation benefit under s.
40.25 (2), Stats., provided the application is received by the department prior to the date on which the participant would have met the minimum age requirement for a retirement annuity under s.
40.23, Stats., or after the date on which the participant has met the minimum age requirement but is not vested, and payment of a separation benefit would comply with all provisions of the internal revenue code. After the date the participant reaches or would have reached the minimum retirement age, and is vested, the alternate payee may only apply for retirement benefits under s.
40.23,
40.24, or
40.25 (1), Stats.
ETF 20.35(3)(b)
(b)
DRO received after participant had become an annuitant. The participant shall retain the remainder in his or her separate account under s.
40.04 (4) (a), Stats., unless the participant is an annuitant at the time of the division. If the participant is an annuitant when the division occurs, the participant's creditable service and account as of the decree date shall be reduced by the percentage awarded to the alternate payee. The balances shall then be brought forward to the effective date of the current annuity, including any contributions and service for periods after the decree date, and the annuity option chosen by the participant shall be recalculated. The amount by which the monthly annuity payments previously made to the participant exceed the participant's recalculated monthly entitlement for the same period shall be a balance due from the participant. This balance due shall be due from the participant and may be collected as provided in s.
40.08 (4), Stats., including by a reduction of the present value of the participant's annuity as reduced by the division, resulting in a recalculation and reduction of the participant's monthly annuity.
ETF 20.35(3)(c)
(c)
Purchased service credits. Previously purchased service shall be divided in the same proportion as the other portions of the participant's account and creditable service. If an application to purchase creditable service is received prior to the decree date, as defined by s.
40.02 (18f), Stats., then service for which payment is made shall be included in the division. The department shall pay any refund due only to the participant and shall bill only the participant for any supplemental payment due for such purchased service. No refund shall be due to the participant from the department for the portion of any excess payment withdrawn from the public employee trust fund by the alternate payee. Credit for service purchased by an application received after the decree date shall not be divided by the qualified domestic relations order regardless of the source of the funds for the purchase or when the services were actually rendered.
ETF 20.35(3)(d)
(d)
Creditable military service. If the participant has active military service, the alternate payee shall be granted the percentage specified in the QDRO of the military service for which the participant would be eligible as of the decree date, based on the participant's total creditable service as of the decree date, regardless of when the participant requests the crediting or provides satisfactory documentation. If a participant does not provide to the department proof of active military service and the certification of active military service on the form prescribed by the department, the department shall nevertheless divide the participant's account without the military service provided the court order is otherwise a QDRO.
ETF 20.35(3)(e)1.
1. The actuarial reduction applied to the participant's and alternate payee's annuities as provided in s.
40.23 (2m) (f) and
(fm), Stats., shall be calculated based on the participant's and alternate payee's actual ages on his or her respective annuity effective dates, using the creditable service that would otherwise have been credited to the participant's account on the respective annuity effective dates if the participant's creditable service had not been reduced per a QDRO.
ETF 20.35(3)(e)2.
2. For the purposes of determining the amount of service used to calculate the alternate payee's actuarial reduction for early retirement under the provisions of s.
40.23 (2m) (fm), Stats., if the participant has part-time service in at least five of the ten annual earnings periods immediately preceding the annual earnings period in which the alternate payee's retirement benefit becomes effective or the date on which the participant terminated covered employment, whichever is earlier, the provisions of s.
40.23 (2m) (fm), Stats., shall apply. If the decree date is prior to July 1, 2009, the provisions of s.
40.23 (2m) (fm), Stats., in effect prior to that date shall apply.
ETF 20.35(4)
(4)
Dividing account when participant was an annuitant on decree date. ETF 20.35(4)(a)
(a)
Annuity division. Except as provided in par.
(b), if the participant was an annuitant on the decree date, the department shall divide the present value of the annuity as provided in s.
40.08 (1m) (b) 2.,
(c),
(d) and
(f) 2., Stats., and sub.
(3) (e), and as follows, and pay separate annuities to the participant and alternate payee, respectively. An annuity shall be divided so that the actuarial present value of the undivided annuity is equal to the aggregate actuarial present values of the 2 separate annuities resulting from the division as of the effective date of the division.
ETF 20.35(4)(b)
(b)
Zero percent QDRO. If the participant's annuity is a joint and survivor annuity with the alternate payee as the named survivor, and the percentage awarded to the alternate payee in the QDRO is zero percent (0%), then the alternate payee may not receive any Wisconsin retirement system annuity based on the QDRO and the participant's annuity shall be recalculated as a straight life annuity payable to the participant, with no change in the remaining guarantee period, if any.
ETF 20.35(4)(c)
(c)
Division of accelerated annuity option. If the participant selected an accelerated payment option as provided in s.
40.24 (1) (e), Stats., or s.
ETF 20.04 (3), and the participant's temporary annuity is still in force as of the effective date of the annuity division, then the department shall calculate the present value of both the temporary and life annuities using the actuarial tables in effect on the effective date of the annuity division. The department shall then divide the total present value based on the percentages specified in the QDRO and calculate separate annuities for the participant and alternate payee as specified in s.
40.08 (1m) (f) 2., Stats. If the participant or alternate payee provides a projection of his or her social security benefits at age 62 from the social security administration, the department shall use that projected social security amount to calculate the amount of the temporary annuity for that person. If no projection is supplied, then notwithstanding s.
ETF 20.03 (2), the department shall assume that person's projected social security benefits at age 62 equals that person's prorated portion of the participant's temporary annuity amount as of the effective date of the annuity division, calculated based on the respective percentages of the annuity being awarded to the participant and alternate payee. If the reduced annuity payable for life to the alternate payee or participant is below the threshold specified by s.
ETF 20.05 (1), then that person shall receive an annuity in the same optional form originally selected by the participant, except that the temporary annuity option provided in s.
40.24 (1) (e), Stats., or s.
ETF 20.04 (3) is not available.
ETF 20.35(4)(d)
(d)
Disability annuities. Upon division of a disability annuity calculated under the provisions of s.
40.63 (1) or
(4), Stats., the alternate payee's annuity shall consist of a portion based on the participant's actual service and a portion based on the assumed service used to calculate the participant's disability annuity. The portion of the alternate payee's annuity based on the participant's assumed service and age shall cease upon the death of the alternate payee. Benefits payable upon the death of the alternate payee shall be based on the guaranteed portion of the alternate payee's annuity only. Once the participant's disability annuity has been divided, the termination or suspension of the participant's disability annuity or the death of the participant has no effect on the alternate payee's annuity. If the participant's disability annuity is subsequently terminated and the participant's account restored under the provisions of s.
40.63 (9) and
(10), Stats., the contributions and service credited to the restored account shall be reduced by the same percentage awarded to the alternate payee by the QDRO.
ETF 20.35(4)(e)
(e)
Rehired annuitant with suspended account. The suspended payments in the participant's memorandum account are converted into a monthly annuity as of the decree date. This monthly amount consists of the increase that is attributable to the suspended payments from the participant's original annuity. This increase is added to the monthly annuity as of the decree date, and the annuity division is based on this amount.
ETF 20.35(5)(a)(a)
Rejection and notice. The department may not honor any order to divide Wisconsin retirement system benefits which it determines is not a QDRO as defined in s.
40.02 (48m), Stats. The department shall send written notice of its rejection of an order to the person submitting the order and to the participant and alternate payee if those persons' current names and addresses are stated in the order or are readily determinable from department records.
ETF 20.35(5)(b)
(b)
Participant's account already closed. A QDRO or order to vacate received after the participant's account was closed by payment of a lump sum benefit on or after the decree date has no effect, regardless of whether the participant returned to participating employment after the decree date. If the participant's account to which the QDRO applies is subsequently restored under the provisions of s.
40.25 (5), Stats., because the benefit was paid in error, or under an agreement approved by the department where the full amount of the benefit paid plus monthly interest at the assumed rate has been paid to the department, the restored account shall be divided according to the QDRO.
ETF 20.35(5)(c)
(c)
Alternate payee's account already closed. An order to vacate or an amended DRO received after the alternate payee's account was closed by payment of a lump sum benefit has no effect.
ETF 20.35(5)(d)
(d)
Participant or alternate payee deceased. A QDRO received after the participant's or alternate payee's date of death has no effect on the participant's account or annuity.
ETF 20.35(6)
(6)
Limited grace period to correct specified errors. ETF 20.35(6)(a)(a) If the department rejects an order for the division of a participant's account and subsequently receives an otherwise acceptable application from the participant for a benefit which would close the participant's account due to payment of a lump sum benefit, the department shall delay payment of the lump sum benefit until 30 days after the date the order for division was rejected. This paragraph applies only if the basis for the rejection was one or more of the following:
ETF 20.35(6)(a)2.
2. The order received by the department was not a certified copy or was not signed by the judge or a duly authorized family court commissioner.
ETF 20.35(6)(b)
(b) If the department has not received a second QDRO within 30 days after the rejection, then the department shall complete processing the application for benefits and sub.
(5) (b) shall apply.
ETF 20.35(7)
(7)
Effect of post-decree date corrections and adjustments. ETF 20.35(7)(a)(a)
Service purchased after decree date. Credit for service purchased by the participant after the decree date in a QDRO may not be affected by that QDRO.
ETF 20.35(7)(b)
(b)
Active military service. If the department divided a participant's account per a QDRO without first receiving proof and certification of active military service, as provided in sub.
(3) (d), and the participant subsequently provides documentation of active military service and the certification on the form prescribed by the department, the department shall divide the military service creditable based on services rendered prior to the decree date between the participant and alternate payee's accounts pursuant to the QDRO. Any resulting adjustments to the alternate payee's and participant's benefits shall be made retroactive to the respective benefit effective dates. The participant may not receive creditable military service for any active military service that would have been granted to the alternate payee had the participant submitted timely to the department the certification of active military service as provided in s.
40.02 (48m) (f), Stats.
ETF 20.35(7)(c)
(c)
Other corrections and adjustments directly affecting benefits. The effect of any other corrections and adjustments to service, contributions, or interest earnings affecting the benefits the participant accrued as of the decree date, including corrections of administrative errors and corrections or adjustments of any factor affecting the calculation of an annuity to be divided, shall be divided between the participant and the alternate pursuant to the QDRO. The participant and alternate payee accounts or annuities shall be adjusted accordingly. However, the department shall not adjust benefit amounts if the amount of the adjustment would be less than the thresholds specified in s.
40.08 (7) (a), Stats.
ETF 20.35(7)(d)
(d)
Interest. When a participant's annuity is divided as provided in sub.
(4) and retroactive payments are due to an alternate payee, or when an alternate payee's annuity must be increased retroactively for any reason, no interest as specified in s.
40.08 (7) (c), Stats., is payable to the alternate payee for any monthly payments payable prior to the month in which the department received the QDRO.
ETF 20.35(8)
(8)
compliance with section 415 (b) of the internal revenue code. ETF 20.35(8)(a)(a) The aggregate benefits paid to the participant and alternate payee shall not exceed the benefit limits under Section
415 (b) of the Internal Revenue Code. The department shall make any necessary adjustments to the participant's and alternate payee's benefits on an equitable pro rata basis to assure compliance with Section
415 (b) of the Internal Revenue Code. Benefits derived from employee contributions that are actually paid by the employee shall not be subject to the benefit limitations under this subsection.
ETF 20.35(8)(b)
(b) If the participant's retirement annuity has been divided per a QDRO under s.
40.08 (1m) (b) 2., Stats., any subsequent adjustments necessary for compliance with Section
415 (b) of the Internal Revenue Code that result from either post-retirement annuity adjustments under s.
40.27 (2) or
40.28 (2), Stats., or from increases in the compensation limits specified in Section
415 (b) of the Internal Revenue Code, shall be prorated based on the percentage of the participant's account that was awarded to the alternate payee in the QDRO.
ETF 20.35(8)(c)
(c) If the participant's account is divided as provided in sub.
(3), any benefit adjustments required under Section
415 (b) of the Internal Revenue Code shall be applied as follows:
ETF 20.35(8)(c)1.
1. If the alternate payee's benefit becomes effective prior to the participant's benefit effective date:
ETF 20.35(8)(c)1.a.
a. If the aggregate benefits that would be payable to both the alternate payee and the participant on the alternate payee's benefit effective date do not exceed the maximum benefits that would be payable to the participant under Section
415 (b) of the Internal Revenue Code if the account had not been divided, the alternate payee's benefit will not be reduced.
ETF 20.35(8)(c)1.b.
b. Any subsequent benefit adjustments necessary for compliance with Section
415 (b) of the Internal Revenue Code will be applied solely to the participant's benefits and shall not affect the benefit amount payable to the alternate payee.
ETF 20.35(8)(c)2.
2. If the participant's benefit becomes effective prior to the alternate payee's benefit effective date, or the participant's and alternate payee's benefits become effective on the same date:
ETF 20.35(8)(c)2.a.
a. If the aggregate benefits that would be payable to both the participant and alternate payee on the participant's benefit effective date exceed the maximum benefits that would be payable to the participant under Section
415 (b) of the Internal Revenue Code if the account had not been divided, the adjustment to participant's annuity shall be prorated based on the percentage of the participant's account that was not awarded to the alternate payee in the QDRO.
ETF 20.35(8)(c)2.b.
b. When a benefit is subsequently paid to the alternate payee, the portion of the total adjustment necessary for compliance with Section
415 (b) of the Internal Revenue Code that is applied to the alternate payee's benefits shall be prorated based on the percentage of the participant's account awarded to the alternate payee in the QDRO.
ETF 20.35(8)(c)3.
3. If the participant's benefit effective date is on or after the alternate payee's benefit effective date as specified in subd.
2., and as a result of either post-retirement annuity adjustments under s.
40.27 (2) or
40.28 (2), Stats., or of increases in the compensation limits specified in Section
415 (b) of the Internal Revenue Code, subsequent benefit adjustments are necessary for compliance with Section
415 (b) of the Internal Revenue Code, such adjustments shall be prorated based on the percentage of the participant's account that was awarded to the alternate payee in the QDRO.
ETF 20.35(8)(d)
(d) For the purposes of determining the aggregate benefits payable to the participant and alternate payee under par.
(b), the department shall:
ETF 20.35(8)(d)1.
1. First calculate the present value of what the participant's benefit would be as of the benefit effective date of the participant's or alternate payee's benefit effective date, whichever is earlier, as though the participant's account had never been divided by a QDRO.
ETF 20.35(8)(d)2.
2. If that total aggregate benefit amount is higher than the maximum benefits permitted under Section
415 (b) of the Internal Revenue Code, the department shall reduce the aggregate benefits to the maximum amount payable under Section
415 (b) of the Internal Revenue Code. The present value of that maximum benefit payable shall be divided between the participant and alternate payee in proportion to the percentage of the participant's account that was awarded to the alternate payee. The benefits payable to the participant and alternate payee shall then be adjusted as follows:
ETF 20.35(8)(d)2.a.
a. If the alternate payee has received a lump sum benefit under s.
40.25 (1) or
(2), Stats., the gross amount of the alternate payee's lump sum payment shall be subtracted from the present value of the participant's maximum benefit payable under Section
415 (b) of the Internal Revenue Code calculated under par.
(d). The present value of the benefit paid to the participant shall not exceed the remainder of the present value of that maximum benefit payable under Section
415 (b) of the Internal Revenue Code.
ETF 20.35(8)(d)2.b.
b. If the alternate payee has previously taken a monthly retirement annuity, the present value of the alternate payee's annuity as of the alternate payee's annuity effective date shall be subtracted from the present value of the participant's maximum benefit payable under Section
415 (b) of the Internal Revenue Code. The present value of the benefit paid to the participant shall not exceed the remainder of the present value of that maximum benefit payable under Section
415 (b) of the Internal Revenue Code.
ETF 20.35(8)(d)2.c.
c. If the participant's benefit becomes effective prior to the alternate payee's benefit effective date, the present value of the benefit paid to the participant shall not exceed the maximum aggregate benefit calculated under this paragraph minus the present value of the benefit payable to the alternate payee as of the participant's annuity effective date.
ETF 20.35 History
History: Cr.
Register, July, 1999, No. 523, eff. 8-1-99;
CR 07-062: am. (3) (d) 2.
Register June 2008 No. 630, eff. 7-1-08;
CR 11-040: am. (2) (b)
Register July 2012 No. 679, eff. 8-1-12;
CR 11-041: am. (1) (b), (c), (2), (3) (a), (b), (c) 1. to 3., cr. (c) 5., am. (4) (c) 3., (5), (6), (7) (a), (8) (b), (c), cr. (8) (d), (9), (10)
Register July 2012 No. 679, eff. 8-1-12;
CR 14-055: am. (3) (d) 4., r. (9)
Register May 2015 No. 713, eff. 6-1-15;
CR 19-126: r. and recr.
Register May 2021 No. 785, eff. 6-1-21; correction in (1) (c) made under s.
35.17, Stats., and correction in (3) (b) made under s.
13.92 (4) (b) 7., Stats.,
Register May 2021 No. 785.
ETF 20.37(1)(1)
Termination prior to death. If employment with a participating employer actually terminated prior to the death of the participant, then the participant may not be treated as a participating employee for purposes of s.
40.71, Stats., regardless of when notice of the termination is filed with the department.
ETF 20.37 Note
Note: If the termination of employment occurs on the last day on which the employee actually performs services for the employer, and the death occurs on the same day, the participant will be treated as an employee through the end of that day, as provided by s.
40.02 (25), Stats.
ETF 20.37(2)
(2) For purposes of applying s.
40.74 (6), Stats., when determining beneficiaries of a death benefit, reasonable efforts to locate a potential beneficiary of a participant shall consist of all of the following actions:
ETF 20.37(2)(a)
(a) Search on the department's internal information technology systems for information regarding the participant and any potential beneficiary.
ETF 20.37(2)(b)
(b) Utilize an appropriate Internet program for locating people.
ETF 20.37(2)(c)
(c) Contact a person who may be a beneficiary, if the department learns the name of that person.
ETF 20.37(2)(d)
(d) Contact the employer of a person who may be a beneficiary, if the department learns the name of the employer.
ETF 20.37 Note
Note: 2007 Wisconsin Act 131 created s.
40.74 (6), Stats. This provision allows the department, when determining beneficiaries of a death benefit, to presume that a beneficiary who cannot be located within 12 months actually died before the participant. The language in the statute is permissive. This rule (
CR 09-057) establishes what will be considered to be reasonable efforts by the department to locate the potential beneficiary.
ETF 20.39
ETF 20.39 Delinquent state tax obligations. ETF 20.39(1)(1)
Payments subject to attachment. As provided by s.
40.08 (1r), Stats., in order to satisfy delinquent tax obligation of a person, the Wisconsin department of revenue may attach any one of the following types of payment being made by the Wisconsin retirement system to that person:
ETF 20.39(1)(c)
(c) The continued monthly annuity payments of a joint-and-survivor annuity that are paid to a named survivor after the death of the annuitant, regardless of whether the annuity is a regular annuity under s.
40.23 or
40.24, Stats., or a disability annuity under s.
40.63, Stats.
ETF 20.39(1)(d)
(d) Monthly payments of an annuity from the annuitant's additional contributions.
ETF 20.39(1)(e)
(e) A lump sum paid in lieu of an annuity under s.
40.25, Stats., regardless of whether the payment is required or is made at the request of the participant.
ETF 20.39(2)
(2)
Limitations and WRS payments not subject to attachment. ETF 20.39(2)(a)(a) Attachment under s.
40.08 (1r), Stats., and this section applies only to benefits in pay status. The department of revenue may not compel the payment of benefits for which a person has not applied or apply for benefits on behalf of any person.
ETF 20.39(2)(b)
(b) Section
40.08 (1r), Stats., and sub.
(1) do not apply to lump sum payments of additional contributions made under s.
40.25 (4), Stats., or to death benefits paid under s.
40.73, Stats., including but not limited to remaining guaranteed monthly annuity payments, regardless of whether the death benefits are paid in the form of an annuity.
ETF 20.39(3)
(3)
Notice and continued withholding from annuities. ETF 20.39(3)(a)(a) The department shall transmit amounts withheld under s.
40.08 (1r), Stats., to the department of revenue and notify the payee of the amount withheld.
ETF 20.39(3)(b)
(b) The withholding from annuity payments subject to sub.
(1) shall continue until the earlier of the following:
ETF 20.39(3)(b)1.
1. The department has withheld the total amount the department of revenue identified as attached to satisfy a delinquent tax obligation.
ETF 20.39(3)(b)2.
2. The department is instructed otherwise by the department of revenue or a court of competent jurisdiction.
ETF 20.39 Note
Note: 2007 Wis. Act 131 moved the authorization for the department of revenue to attach benefits for delinquent state tax obligations from s.
40.08 (1), Stats., into a new s.
40.08 (1r), Stats. The authorization was also amended to limit the authority of the department of revenue to attaching only lump sum payments and annuities paid under ss.
40.23,
40.24,
40.25 (1) or
(2), or
40.63, Stats. This rule (
CR 09-057) therefore states that a tax attachment does apply to joint-and-survivor annuities being paid to a named survivor but does not apply to certain lump sum benefits and death benefits payable under statutes not cited in the new s.
40.08 (1r), Stats. The rule would also state that the attachment of an annuity will result in continued monthly withholding until the entire delinquent tax amount has been withheld, or the department is instructed to stop withholding. The rule also provides that the statutory authority to attach a payment does not confer any right for the department of revenue to ask the department of employee trust funds to pay out a benefit for which the person has not applied.
ETF 20.39 History
History: CR 09-057: cr.
Register May 2010 No. 653, eff. 6-1-10; correction in numbering of (3) (b) made under s.
13.92 (1) (b) 1., Stats.,
Register May 2010 No. 653.
