1. Does the employee have a divisible account balance?
An employee does not have a divisible "account balance" with respect to any specific period of time, such as the period of the marriage, or as of any given date, such as the date of divorce. Therefore, it is impossible to establish a separate account for the share awarded to a spouse or former spouse or to segregate the share awarded.
2. What happens to a partitioned annuity upon the death of the employee or the spouse or former spouse?
Previously, partition payments terminated upon the death of either party, whichever occurred first. Section 14 of the RRA has been amended to allow for the continued payment of a partition award after the employee's death, and not terminate until the death of the spouse or former spouse, unless the decree or order provides for termination at an earlier date. The continued payment will be in the amount of the employee annuity net tier II benefit component that was payable to a former spouse as of the month prior to the month of the employee's death, as well as other divisible annuity components included in the partition awarded the former spouse (e.g., supplemental annuity, vested dual benefit) except for the overall minimum increase, which is not payable after the employee's death. Cost-of-living adjustments will be made to the partition award after the death of the employee in those cases where the partition is calculated as a percentage of the employee's divisible benefits.
If the spouse or former spouse dies first, payment of the amount that the spouse or former spouse was receiving, or could receive under the order, reverts to the employee as his or her property and does not become the property of the estate of the spouse or former spouse. The spouse or former spouse may qualify for payment of a survivor annuity under the RRA upon the death of the employee. The estimated amount of this annuity is equal to the tier I annuity component minus any social security benefit to which the surviving divorced spouse may be eligible to receive. Any state court determination as to who is surviving divorced spouse will be disregarded by the RRB.
In addition to the above, The Worker, Retiree, and Employer Recovery Act of 2008 (Public Law 110-458), eliminated the requirement that an employee be entitled to an annuity in order for a partition to be paid, and furthermore, now allows payment of a partition award beyond the employee's death to all partition recipients. However, these payments may not begin before the month in which the following three conditions are met: 1) the employee has completed 10 years of railroad service (or 5 years of railroad service after December 31, 1995); 2) the former spouse is age 62; and 3) the employee also is 62, or if deceased, would have been 62.
3. What is the maximum amount that can be awarded in a state court order partitioning the employee's benefits?
The RRA does not set or limit the amount that a court may award to a spouse or former spouse as his or her share of the employee's divisible benefits, except that an amount greater than the amount of the divisible benefits may not be awarded. Rather, the court sets the award by applying relevant state domestic relations law or by approving the provisions of a property settlement agreement between the parties.
4. Can the RRB be joined as a party to a divorce action?
No. The RRB cannot be joined as a party to any action for divorce, separation, or annulment. As an agency of the Federal government, the RRB is immune from suit in state domestic relations actions and the records it maintains are not subject to subpoena by the court.
5. Can the RRB report whether an employee has a profit sharing plan, 401(k) plan, or other similar monetary asset through his or her railroad employer?
No. The RRB does not maintain any such information. Questions about stock options, deferred savings plans, employee stock ownership plans, life insurance, etc., should be directed to the employee's railroad employer. The only information the RRB can supply is information about the employee's actual or potential right to receive an annuity under the RRA. The amount of any actual or estimated annuity payments under the RRA may also be reported in connection with a state court action for divorce, legal separation or annulment.
6. Does remarriage of the former spouse affect payment of the amount of the partition?
Remarriage would have no effect unless the court order that granted the partition requires termination of payment upon remarriage. Since the partitioned amount is an “award of property” and not a “benefit” that could be affected by remarriage, the partition payment is ordinarily payable regardless of the marital status of either party.
7. Does an employee's marriage have to last at least 10 years before a court can order a partition of his or her annuity?
No. While the length of marriage of the parties may be relevant to the court in distributing the marital property, it is not relevant as to whether the divisible components of an employee's annuity are subject to division by the court. (As explained in Appendix D, the length of marriage of the parties is relevant to whether a divorced spouse is eligible for a divorced spouse annuity under the RRA.)
8. What is the difference between a divorced spouse annuity and a partition award?
Under the RRA the former spouse of an employee may become eligible for a divorced spouse annuity in his or her own right. The divorced spouse annuity is a matter of Federal law and causes no reduction in the retirement annuity payable to the railroad employee. In addition, no state court may determine the entitlement of a person to a divorced spouse annuity. In order to be eligible for a divorced spouse annuity, the former spouse must meet certain statutory requirements that are detailed in Appendix D. The divorced spouse annuity is not payable if the former spouse is married. The divorced spouse annuity may be payable even though the employee is not yet entitled to an annuity under the RRA, or is entitled but the employee's annuity is not payable due to work or earnings.
A partition award is a specified payment of a portion of the employee's divisible components of his or her annuity pursuant to a court order, which results in a reduction in the annuity paid to the employee. A partition award is not payable for any month in which payment of the employee's annuity is suspended due to work, earnings or to recover an overpayment.
9. Can a spouse or former spouse or surviving divorced spouse receive both a partition award and an annuity based on his or her relationship to the employee?
Yes. The spouse, divorced spouse or surviving divorced spouse annuity is payable to qualified individuals based upon the provisions of the RRA, and a court cannot affect entitlement to such annuity. The partition award is payable according to the terms of a valid court decree or order and is not affected by the payment of an annuity under the RRA to the spouse or former spouse.
10. Will the RRB "pre-approve" a draft court order dividing an employee's annuity under the RRA?
Yes, the Office of General Counsel will review draft orders. Such orders may be mailed to:
|Office of General Counsel
U.S. Railroad Retirement Board
844 North Rush Street
Chicago, IL 60611-1275
While final orders may be submitted via fax, a certified copy of the document must follow in order for the RRB to be properly served.(20 CFR 295.3(d)).
11. What is the difference between a surviving divorced spouse annuity and a partition payable after the employee's death?
A surviving divorced spouse annuity is a monthly benefit payable to a surviving former spouse based on the provisions of the RRA, with the eligibility requirements found in 20 CFR 216.62. Eligibility for a surviving divorced spouse annuity, like all survivor annuity eligibility under the RRA, requires that the employee have a current connection with the railroad industry at the time of his or her death. (Current connection requirements are explained in 20 CFR Part 216, Subpart B.)
The Worker, Retiree, and Employer Recovery Act of 2008 (Public Law 110-458) eliminated the requirement that an employee be entitled to an annuity in order for a partition to be paid, and furthermore, now allows payment of a partition award beyond the employee's death to all partition recipients. However, these payments may not begin before the month in which the following three conditions are met: 1) the employee has completed 10 years of railroad service (or 5 years of railroad service after December 31, 1995); 2) the former spouse is age 62; and 3) the employee also is 62, or if deceased, would have been 62.