38-910

38-910. Domestic relations orders; procedures;
payments

A. Notwithstanding any other law, in a judicial proceeding for annulment,
dissolution of marriage or legal separation that provides for the distribution of
community property, or in any judicial proceeding to amend or enforce such a property
distribution, a court in this state may issue a domestic relations order that provides
that all or any part of a participant's benefit or refund in the plan that would
otherwise be payable to that participant shall instead be paid by the plan to an
alternate payee.

B. A domestic relations order is not effective against the plan unless the domestic
relations order is approved by the plan and qualifies as a plan approved domestic
relations order. To qualify as a plan approved domestic relations order, a domestic
relations order shall comply with any policies or procedures adopted pursuant to
subsection K and shall also meet all of the following requirements:

1. The domestic relations order shall state the name and the last known mailing
address of the participant and the name and last known mailing address of the alternate
payee that is covered by the domestic relations order.

2. The domestic relations order shall clearly state the amount or percentage of the
participant's benefits that is payable by the plan to the alternate payee or the precise
manner in which the amount or percentage is to be determined.

3. The domestic relations order shall state the number of payments or periods to
which the domestic relations order applies, if applicable.

4. The domestic relations order shall state that the domestic relations order
applies to the plan.

5. The domestic relations order shall not require the plan to provide any type or
form of benefit or any option not otherwise provided by this article.

6. The domestic relations order shall not require the plan to provide increased
benefits determined on the basis of actuarial value.

7. The domestic relations order shall not require the payment of benefits to an
alternate payee if the benefits are required to be paid to another alternate payee under
a separate plan approved domestic relations order.

C. On receipt by the plan of a certified copy of a domestic relations order and a
written request for a determination that the domestic relations order is a plan approved
domestic relations order, the plan shall promptly issue a written notice of receipt
stating that the domestic relations order and request were received to the participant
and alternate payee at the addresses on file, if any.

D. The plan has a determination period to issue a written determination indicating
whether a domestic relations order qualifies as a plan approved domestic relations order.
If the participant is receiving benefits during the determination period, and if the plan
can determine the amount of the benefits that currently would be payable to the alternate
payee if the domestic relations order were a plan approved domestic relations order, the
plan shall hold the segregated funds and shall pay the remaining portion of the benefits
to the participant. If the plan determines the domestic relations order is a plan
approved domestic relations order, the plan shall pay the participant and alternate payee
pursuant to the plan approved domestic relations order in the month following the month
in which the determination was issued, or in the month following the month in which a
benefit is payable under the plan approved domestic relations order, whichever is later.
If the plan determines the domestic relations order fails to qualify as a plan approved
domestic relations order, the plan shall specify in its determination how the domestic
relations order is deficient and how it may be amended to qualify as a plan approved
domestic relations order. If the participant is currently receiving benefits, and if the
plan can determine the amount of segregated funds that would be payable to the alternate
payee if the domestic relations order were a plan approved domestic relations order, the
plan shall hold the segregated funds during the cure period to allow the parties to
submit a certified copy of an amended domestic relations order and a written request for
a determination that the amended domestic relations order is a plan approved domestic
relations order. During the cure period, the plan shall pay the participant's portion to
the participant. At the end of the cure period, if the issue of whether an amended
domestic relations order qualifies as a plan approved domestic relations order remains
undetermined or if an amended domestic relations order is determined not to be a plan
approved domestic relations order, the plan shall pay the segregated funds and the
participant's portion to the participant. The participant shall hold the segregated funds
in trust for the alternate payee as provided in subsection J. If an amended domestic
relations order that is submitted after the expiration of the cure period is determined
to be a plan approved domestic relations order, the plan shall make payments to an
alternate payee under the plan approved domestic relations order only prospectively. A
determination by the plan that a domestic relations order is not a plan approved domestic
relations order does not prohibit a participant or alternate payee from submitting an
amended domestic relations order to the plan.

E. Each participant and alternate payee is responsible for maintaining a current
mailing address on file with the plan. The plan has no duty to attempt to locate any
participant or alternate payee. The plan has no duty to provide a notice of receipt or
determination or pay benefits by means other than mailing the notice or payments to the
participant or alternate payee at the last known address that is on file with the plan.
If the address of an alternate payee is unknown to the plan, but benefits are payable to
the alternate payee pursuant to a plan approved domestic relations order, the plan shall
either:

1. Hold the alternate payee's portion until such a time as the alternate payee
provides the plan with a current address. Once the plan is notified of the alternate
payee's current address, the plan shall prospectively pay the alternate payee's portion
to the alternate payee.

2. Pay the alternate payee's portion to the participant, who shall hold the
alternate payee's portion in trust as provided in subsection J, until such a time as the
alternate payee is located. At that time the participant shall pay the alternate payee's
portion directly to the alternate payee.

F. If the address of a participant is unknown to the plan, but benefits are payable
to the participant pursuant to a plan approved domestic relations order, the plan shall
hold the participant's portion until the participant provides the plan with a current
address.

G. If the alternate payee identified in a plan approved domestic relations order
predeceases the participant and the plan approved domestic relations order does not
otherwise provide for the disposition of the alternate payee's interest the plan shall
pay the alternate payee's portion to the personal representative of the deceased
alternate payee pursuant to this subsection. The personal representative is responsible
for maintaining a current mailing address on file with the plan. The plan has no duty to
attempt to locate any personal representative. The plan is not responsible for making
benefit payments to a personal representative until the personal representative has both:

1. Persuaded the plan that the personal representative is authorized to receive
payments designated for the deceased alternate payee.

2. Provided the plan with an address to which the payments should be sent.

H. If, within thirty days after the date the plan verifies an alternate payee's
death, a personal representative does not make demand on the plan for the alternate
payee's portion, the plan shall either:

1. Hold the alternate payee's portion until the time a personal representative
makes a proper demand for payment of the alternate payee's portion.

2. Remit the alternate payee's portion to the participant, who shall hold the
amounts in trust for the estate of the alternate payee until the personal representative
is identified. At that time the participant shall pay the alternate payee's portion paid
by the plan to the participant to the personal representative.

Thereafter, the plan shall prospectively pay the alternate payee's portion to the
personal representative.

I. Amounts held or paid pursuant to this section shall not accrue interest unless
otherwise prescribed by this article.

J. The plan is not liable to the participant, the alternate payee, any personal
representative of the estate of an alternate payee or any other person for any amount
paid, withheld or disbursed by the plan pursuant to this section. If one or more payments
are made by the plan to a person not otherwise entitled to receive the payments, the
recipient of the payment is designated a constructive trustee for the payment received
and, together with the marital community, if any, is the sole party against whom an
action may be brought to recover the payment.

K. The plan may adopt policies and procedures that govern the implementation of
this section.