Distribution of property in a divorce action
HRS §88-93.5
in effect88-93.5. Distribution of property in a divorce action
(a) As used in this section:
"Alternate payee" means a spouse or
former spouse of a member, a former member who has vested benefit status, or
retirant who is recognized by a domestic relations order as having a right to
receive all or a portion of the benefits payable by the system with respect to
that member, former member with vested benefit status, or retirant.
"Benefits payable with respect to a
member, a former member with vested benefit status, or retirant" means any
payment required to be made to a member, a former member with vested benefit
status, or retirant.
"Domestic relations order" means a
judgment, decree, or order, including approval of a property settlement
agreement, that:
(1) Relates to the provision of marital property
rights to a spouse or former spouse of a member, a former member with vested
benefit status, or retirant; and
(2) Is made pursuant to a domestic relations law of
this State or another state.
"Hawaii domestic relations order"
means a domestic relations order that:
(1) Creates or recognizes the right of an alternate
payee, or assigns to an alternate payee, the right to receive all or a portion
of the benefits payable with respect to a member, a former member with vested
benefit status, or retirant under the system;
(2) Directs the system to disburse benefits to the
alternate payee; and
(3) Meets the requirements of this section.
(b) A Hawaii domestic relations order shall
clearly specify:
(1) The name and last known mailing address, if any,
of the member, former member with vested benefit status, or retirant;
(2) The name and mailing address of the alternate
payee covered by the order;
(3) The amount or percentage of the member's, former
member's with vested benefit status, or retirant's benefits to be paid by the
system to the alternate payee, or the manner in which the amount or percentage
is to be determined; and
(4) That the order applies to the system.
(c) If, pursuant to a Hawaii domestic
relations order, an alternate payee is receiving all or a portion of a
retirant's pension, annuity, or retirement allowance, the alternate payee shall
be entitled to receive a post retirement allowance as provided by section
88-90.
(d) A Hawaii domestic relations order shall
not:
(1) Purport to require the designation by the member,
former member with vested benefit status, or retirant of a particular person as
the recipient of benefits upon the death of the member, former member with
vested benefit status, or retirant;
(2) Purport to require the selection of a particular
benefit payment plan or option or to limit the benefit payment plans or options
from which the member or former member with vested benefit status may select;
(3) Require any action on the part of the system
contrary to its governing laws or plan provisions other than the direct payment
of the benefit awarded to an alternate payee;
(4) Make the award to the alternate payee an interest
that is contingent on any condition other than those conditions resulting in
the liability of the system for payment under its plan provisions;
(5) Purport to give to someone other than a member,
former member with vested benefit status, or retirant the right to designate a
beneficiary or to choose any retirement plan or option available from the
system;
(6) Attach a lien to any part of amounts payable with
respect to a member, former member with vested benefit status, or retirant;
(7) Award an alternate payee a portion of the
benefits payable with respect to a member, former member with vested benefit
status, or retirant under the system and purport to require the system to make
a lump sum payment of the awarded portion of the benefits to the alternate
payee that are not payable in a lump sum;
(8) Purport to require the system, without action by
the member, to terminate a member from membership or employment, to refund
contributions, or to retire a member or former member with vested benefit
status;
(9) Provide any type or form of benefit, or any
option, not otherwise provided by the system;
(10) Provide increased benefits, determined on the
basis of actuarial value; or
(11) Require the system to provide benefits or refunds
to an alternate payee that are required to be paid to another alternate payee
pursuant to an earlier Hawaii domestic relations order.
(e) Upon receipt of a copy of the complaint
for divorce, certified by the clerk of the court in which the complaint was
filed, or a copy of the divorce decree certified by the clerk of the court in
which the divorce decree was filed, and a written request that identifies the
member, former member with vested benefit status, or retirant by name and
social security number and states the date of the marriage, the system shall
provide the spouse or former spouse of a member, former member with vested
benefit status, or retirant with the same information that would be provided to
the member, former member with vested benefit status, or retirant on the
member's, former member's with vested benefit status, or retirant's benefits
that is relevant to the spouse's or former spouse's interest in the member's,
former member's with vested benefit status, or retirant's benefits.
(f) A person who wishes to have the system
review a domestic relations order or a proposed domestic relations order to
establish whether the order or proposed order meets the requirements for a
Hawaii domestic relations order shall submit to the system a written request
for review and a copy of the order or proposed order. If the order has been
entered by a court, the copy of the order shall be certified by the clerk of
the court that entered the order. The order or proposed order shall be
reviewed as provided by this section.
The filing fee in effect at the time that an
order or proposed order is submitted shall be paid before the order or proposed
order is processed or reviewed. In addition, the system shall charge for legal
and actuarial services as provided by subsection (s).
Before any legal or actuarial services are
performed, the system shall notify the person who requested the review of the
order or proposed order that the services will be needed as part of the
review. The notification shall include an estimate of the extent of the
services and the estimated costs relating to those services. The charges for
legal and actuarial services shall be paid before the system may issue
notification of determination on an order or notification whether or not a
proposed order meets the requirements for a Hawaii domestic relations order.
If a domestic relations order is submitted for
review after it has been entered by the court and is thereafter amended with
the intention that it shall be a Hawaii domestic relations order, the member,
former member with vested benefit status, retirant, or the alternate payee
shall submit a certified copy of the amended order to the system. The system
shall review any amended order that it receives according to the same rules
applicable to all other orders.
(g) The system shall review an order or
proposed order for compliance with the requirements imposed by this section.
Upon completion of the review:
(1) The system shall not issue a determination that a
proposed order is or is not a Hawaii domestic relations order but shall notify
the person who submitted the proposed order, in writing, whether the proposed
order meets the requirements for a Hawaii domestic relations order, identifying
any provisions of this section that the proposed order does not meet. The
notification may also be provided to the member, former member with vested
benefit status, retirant, or alternate payee. The system's notification is
advisory, and shall not constitute a determination that a proposed domestic
relations order is or is not a Hawaii domestic relations order; and
(2) If the order has been entered by the court, the
system shall notify the member, former member with vested benefit status, or
retirant and the alternate payee in writing of the determination that the
domestic relations order is or is not a Hawaii domestic relations order,
identifying any provisions of this section that the order does not meet.
(h) During any period not exceeding eighteen
months, beginning on the date on which the first payment would be required to
be made to the alternate payee under the domestic relations order, in which a
domestic relations order is under review to determine whether it is a Hawaii
domestic relations order, or in which a determination that an order is not
qualified is on appeal to the board or to a court, the system shall limit the
member's, former member's with vested benefit status, or retirant's rights in
the member's, former member's with vested benefit status, or retirant's
benefits to the extent the system deems appropriate to protect the largest
amount that would be payable to the proposed alternate payee under the system's
interpretation of the domestic relations order. Any amounts not paid to the
member, former member with vested benefit status, or retirant during this
eighteen-month period shall be separately accounted for. If the domestic relations
order is determined to be a Hawaii domestic relations order before the end of
the eighteen-month period, the system shall pay benefits to the member, former
member with vested benefit status, or retirant and the alternate payee in
accordance with the Hawaii domestic relations order and the terms of the plan,
including any benefits separately accounted for during the period between the
date on which the first payment was to be made under the Hawaii domestic
relations order and the date the determination is made. If the domestic
relations order is finally determined not to be a Hawaii domestic relations
order, or if the eighteen-month period expires without a determination that the
domestic relations order is a Hawaii domestic relations order, none of the
amounts separately accounted for shall be paid to the alternate payee, and the
member, former member with vested benefit status, or retirant shall be entitled
to the member's, former member's with vested benefit status, or retirant's full
benefits in accordance with the terms of this chapter, including any benefits
that had been separately accounted for and withheld from the member, former
member with vested benefit status, or retirant. If the domestic relations
order is determined to be a Hawaii domestic relations order after the end of
the eighteen-month period, or if the system later receives another domestic
relations order that is determined to be a Hawaii domestic relations order, the
Hawaii domestic relations order shall apply prospectively only and shall not
affect benefits already paid to the member, former member with vested benefit
status, or retirant.
(i) Subject to the limitations of applicable
statutes and this section, if a domestic relations order is determined to be a
Hawaii domestic relations order, the system shall pay benefits in accordance
with the order at the time benefits become payable to, or in the case of
contributions or hypothetical account balances, are withdrawn by, the member,
former member with vested benefit status, or retirant. Any determination that
an order is a Hawaii domestic relations order is voidable or subject to modification
if the system determines that the provisions of the order have been changed or
that circumstances relevant to the determination have changed.
(j) If a member or former member with vested
benefit status terminates membership in the system by withdrawal of
contributions or hypothetical account balance, the system shall pay all or a
portion of the amount withdrawn to any alternate payee as directed by a Hawaii
domestic relations order. Payment to any alternate payee pursuant to this
subsection shall be in a lump sum. If after terminating membership in the
system by withdrawal of contributions or hypothetical account balance, the
former member later resumes membership in the system, the system shall pay to
an alternate payee no portion of any benefits that result from the resumption
of membership, even if those benefits result in part from reinstatement of
service credit initially credited during the marriage.
(k) In order to receive credit for all service
represented by withdrawn or refunded contributions, a member, in reinstating
service credit by repaying amounts previously withdrawn or refunded, shall
repay the entire amount withdrawn or refunded, regardless of whether a portion
or all of the amount was paid to an alternate payee.
(l) When the system has not yet begun to make
payment to an alternate payee under this section and is provided with proof of
the death of the alternate payee, benefits payable with respect to the member,
former member with vested benefit status, or retirant shall be paid without
regard to the Hawaii domestic relations order.
(m) When the system receives a certified copy
of a domestic relations order prior to a member's retirement, and if the
domestic relations order is determined to be a Hawaii domestic relations order,
the system, except as provided in subsection (j), shall pay the alternate payee
a portion of the retirement benefit the member or former member with vested
benefit status is expected to receive as follows:
(1) If the alternate payee will be named beneficiary
under any option elected by the retirant at retirement, the benefit to which
the retirant is entitled, without regard to the Hawaii domestic relations
order, shall be apportioned between the retirant and the alternate payee
according to the terms of the Hawaii domestic relations order. Upon the death
of the retirant or the alternate payee, the benefit amount to be paid to the
survivor shall be the amount required under the option elected by the retirant at
retirement, as though no Hawaii domestic relations order had existed; or
(2) If the alternate payee will not be a named
beneficiary under the option elected by the retirant at retirement, the benefit
to which the retirant is entitled without regard to the Hawaii domestic
relations order, shall be apportioned between the retirant and the alternate
payee according to the terms of the Hawaii domestic relations order. If the
retirant predeceases the alternate payee, payments to the alternate payee shall
cease and payments to the retirant's named beneficiary or beneficiaries shall be
made as required under the option elected by the retirant at retirement, as
though no Hawaii domestic relations order had existed. If the alternate payee
predeceases the retirant, the benefit then being paid to the retirant shall be
increased by the amount of the benefit that was being paid to the alternate
payee at time of death.
Payment of the alternate payee's interest under
this subsection shall be effective as of the same date that benefit payments
are effective for the member.
(n) When the system receives a certified copy
of a domestic relations order subsequent to the member's or former member's
with vested benefit status retirement, and if the domestic relations order is
determined to be a Hawaii domestic relations order, the interest awarded to the
alternate payee by the Hawaii domestic relations order shall be paid as a
portion of the retirement benefit the retirant is receiving as follows:
(1) If the alternate payee is already a named
beneficiary under any option elected by the retirant at retirement, the benefit
to which the retirant is entitled, without regard to the Hawaii domestic
relations order, shall be apportioned between the retirant and the alternate
payee according to the terms of the Hawaii domestic relations order. Upon the
death of the retirant or the alternate payee, the benefit amount to be paid to
the survivor shall be the amount required under the option elected by the retirant
at retirement, as though no Hawaii domestic relations order had existed; or
(2) If the alternate payee is not a named beneficiary
under the option elected by the retirant at retirement, the benefit to which
the retirant is entitled without regard to the Hawaii domestic relations order,
shall be apportioned between the retirant and the alternate payee according to
the terms of the Hawaii domestic relations order. If the retirant predeceases
the alternate payee, payments to the alternate payee shall cease and payments
to the retirant's named beneficiary or beneficiaries shall be made as required
under the option elected by the retirant at retirement, as though no Hawaii
domestic relations order had existed. If the alternate payee predeceases the
retirant, the benefit then being paid to the retirant shall be increased by the
amount of the benefit that was being paid to the alternate payee at time of
death.
Payment according to the terms of the Hawaii
domestic relations order under this subsection shall commence as of the first
day of the month following the date upon which the order is determined to be
qualified, unless the parties jointly direct that payment shall commence at a
later date.
(o) If a retirant returns to employment
requiring active membership in the system:
(1) Payments to an alternate payee pursuant to a
Hawaii domestic relations order shall not be suspended; and
(2) The system shall pay to an alternate payee no
portion of any benefits payable to the retirant that result from the resumption
of membership.
(p) For the purpose of calculating earnings
limitations for retirants who have been restored to service, the retirant's
maximum retirement allowance shall be considered to be the amount that would
have been paid if there had not been any Hawaii domestic relations order
applicable to the retirant.
(q) A court does not have jurisdiction over
the system with respect to a divorce or other domestic relations action in
which an alternate payee's right to receive all or a portion of the benefits
payable to a member, former member with vested benefit status, or retirant is
created or established. A determination by the system that a domestic
relations order is not a Hawaii domestic relations order shall be subject to
review as provided in chapter 91 and the system's rules relating to contested
cases. The system shall not be made party to any other judicial proceedings
except as provided in this subsection. A party to any action who attempts to
make the system a party to the action contrary to this subsection shall be
liable to the system for the system's costs and attorney's fees in the action,
including attorneys' fee and costs for obtaining a dismissal.
(r) If a member, former member with vested
benefit status, or retirant, or the beneficiary or estate of any, receives the
amount of any distribution that should have been paid by the system to the
spouse or former spouse of the member, former member with vested benefit
status, or retirant, the recipient shall be designated a constructive trustee
for the amount received and shall immediately transmit that amount to the
person to whom the amount should have been paid. If a spouse or former spouse
of a member, former member with vested benefit status, or retirant, or the
estate, heirs, or legatees of the spouse or former spouse receive any amount of
a distribution that should have been paid to a member, former member with
vested benefit status, or retirant, or the estate, heirs, or legatees of any,
the recipient shall be designated a constructive trustee for the amount
received and shall immediately transmit that amount to the member, former
member with vested benefit status, or retirant or other person to whom the
amount should have been paid. If a member, former member with vested benefit
status, retirant, or the beneficiary, estate, heirs, or legatees of any,
receives any amount that should not have been paid by the system, the recipient
shall be designated a constructive trustee for the amount received and shall
immediately transmit that amount to the system. If an alternate payee or the
estate, heirs, or legatee of the alternate payee, receives any amount that
should not have been paid by the system, the recipient shall be designated a
constructive trustee for the amount received and shall immediately transmit
that amount to the system.
(s) The board shall adopt rules in accordance
with chapter 91, and adopt forms as it deems necessary to effectuate this
section. The board, by motion at a duly noticed meeting of the board, may
establish and revise from time to time:
(1) A filing fee for processing and review of
domestic relations orders and proposed domestic relations orders for the
purposes of this section;
(2) A schedule of charges for legal and actuarial
services incurred by the system in the review and processing of domestic
relations orders and proposed Hawaii domestic relations orders for the purposes
of this section; and
(3) A required form or forms for Hawaii domestic
relations orders.
(t) Payments made to alternate payees
according to the terms of Hawaii domestic relations orders are payments
received by the retirant for purposes of sections 88-83(f) and 88-333(c), and
the benefit that the retirant received for purposes of section 88-283(g).
(u) The priority of Hawaii domestic relations
orders shall be determined by the order in which the certified copies of
domestic relations orders are received by the system for qualification as a
Hawaii domestic relations order, and not by the order in which domestic
relations orders are determined to be Hawaii domestic relations orders, the
order in which the domestic relations orders are entered by the court, the date
the complaint for divorce is filed, the date upon which an order of divorce is
entered, or the date of marriage.
[L 2016, c 263, §2; am L 2018, c 30, §1; am L
2021, c 70, §1]
Source: Hawaii State Legislature (capitol.hawaii.gov), via Internet Archive capturesURL: http://www.capitol.hawaii.gov/hrscurrent/Vol02_Ch0046-0115/HRS0088/HRS_0088-0093_0005.htmFetched: 11/10/2026