H. B. 2854

(By Delegates Staton, Wills, Keener and Webb)

[Introduced March 14, 2001; referred to the

Committee on the Judiciary.]






A BILL to amend chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article two-d, relating to domestic relations actions; division of pensions as marital property; specifying a form order for a qualified domestic relations order; setting forth purposes and legislative findings; setting forth definitions; jurisdiction; preservation of rights; specifying mandatory requirements for a qualified domestic relations order; setting forth form order; administration and effect of form order; setting forth mandatory time period in which to comply with order; notice; opportunity to be heard; bond requirements; legal effect of qualified domestic relations order; contempt; enforcement powers of court; modification of qualified domestic relations orders; and setting forth an effective date.

Be it enacted by the Legislature of West Virginia:
That chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article two-d, to read as follows:
ARTICLE 2D. QUALIFIED DOMESTIC RELATIONS ORDERS.
§48-2D-1. Purposes; legislative findings.
The Legislature hereby finds and declares that many domestic relations actions involve the valuation and equitable distribution of pension and retirement plans of either or both parties. The equitable division of pensions and retirement plans is accomplished by the entry of a qualified domestic relations order by a court of competent jurisdiction. The Legislature finds that the drafting and finalization of Qualified Domestic Relations Orders (Q.D.R.O.) is a complex and highly technical process which is often time consuming and expensive to the litigants in divorce proceedings and therefore often operates to the legal detriment of the citizens of the state of West Virginia. Therefore, the Legislature finds and concludes that a uniform manner for the preparation and entry of Q.D.R.O.s by the courts will promote the general welfare and interests of the citizens of this state by effecting a more efficient and expeditious means by which the domestic party litigants may receive their equitable portions of pensions, retirement accounts and other similar financial investments to which they are legally entitled.
§48-2D-2. Definitions.
As used in this article;
(1) "Action" means a divorce action filed in this state wherein the circuit court in the county in which the action is filed has jurisdiction to hear and determine the case.
(2) "Participant" means the person who is vested in a retirement or pension plan which is deemed a qualified plan under the Internal Revenue Code of 1986.
(3)"Payee" or "Alternate Payee" means and includes the spouse of the plan participant who is entitled to a part of the benefits of the plan by a prior order of a circuit court, or other court in this state having jurisdiction pursuant to article two, section three, of this chapter, which purports to make an equitable distribution of martial property and otherwise meets the definition of section 401 (p) of this Internal Revenue Code.
(4) "Plan" means a retirement, pension or other deferred compensation account which is a qualified plan within the meaning of section 401 et seq. of the Internal Revenue Code of 1986, including, but not limited to, any other such financial investments in which proceeds vest and are payable now or in the future and which accrued during the marriage of the parties.
(5) "Plan Administrator" means the person, firm, corporation or other legal entity employed by the trustees of the plan to supervise the operation of the plan.
(6) "Qualified Domestic Relations Order" (or "Q.D.R.O.") means an order entered by the a circuit court of this state having jurisdiction which meets the definitions set forth in section 414 (p) of the Internal Revenue Code of 1986.
§48-2D-3. Jurisdiction.
(a) The circuit court and courts of record of this state which are empowered to decide domestic relations actions have original and continuing jurisdiction to enter Q.D.R.O.s pursuant to ongoing domestic relations litigation before it, in conjunction with and in conformity with chapter forty-eight, article two, section five of this code.
(b) The circuit court and courts of record of this state shall have specific original and continuing jurisdiction at all times over all firms, corporations, persons, or legal entities entrusted with administering and equitably distributing any pensions or retirement plans.
Those firms, corporations, persons or legal entities include, but are not be limited to, plan administrators, trustees, counsel, and any and all employees, agents, servants and representatives of those firms, corporations, persons or legal entities.
(c) Once a circuit court of this state has exercised jurisdiction by the entry of a Q.D.R.O. or by entry of an order of divorce which effects an equitable distribution of property, including a qualified plan, no other court has jurisdiction with respect to the plan, plan administrator, plan trustees and the parties thereto.
§48-2D-4. Preservation of rights and receipt of Q.D.R.O. proceeds.
All actions, suits or causes of action to value and equitably divide any pension or retirement "plan" shall survive and be specifically preserved to all party litigants as long as the equitable distribution of such plan was specifically addressed or ordered by the final divorce decree order or subsequent order of the circuit court or court of record of this state having competent jurisdiction over domestic relations cases.
§48-2D-5. Mandatory requirements.
Any order entered by a circuit court of this state which states on its face that it is a Qualified Domestic Relations Order shall be legally sufficient in all respects notwithstanding the objections of any plan administrator or trustee if the order contains the following:
(1) A heading stating it is a Qualified Domestic Relations Order;
(2) A statement that it is a Qualified Domestic Relations Order, as defined in 26 U.S. §414(p) and §401(a)(13).
(3) The participant's name, address, social security number and date of birth;
(4) The alternate payees or payee's name, mailing address, social security number and date of birth;
(5) Reference to article two, section thirty-two, of this chapter;
(6) A concise statement of the amount or percentage of the participant's benefits to be paid by the plan to each such alternate payees or the manner in which such amount or percentage's to be determined;
(7) The number of payments or period to which the Q.D.R.O applies;
(8) The name of the plan to which the Q.D.R.O applies;
(9) A statement that the Q.D.R.O does not require the plan to provide any type or form of benefit or any option, not otherwise provided under the plan;
(10) A statement that the Q.D.R.O does not require the plan to provide increased benefits determined on the basis of actual value;
(11) A statement that the Q.D.R.O does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order.
§48-2D-6. Form Qualified Domestic Relations Order.
The body of a Qualified Domestic Relations Order (Q.D.R.O) to be entered by the circuit court or court of record in this state in domestic relations cases shall be drafted in accordance with the provisions of chapter forty-eight, article two, section one of the West Virginia code and shall be drafted in compliance with and in conformity with the following form:
QUALIFIED DOMESTIC RELATIONS ORDER
Pursuant to the final divorce decree dated the day of , (month), (year), this court hereby enters a Domestic Relations Order intended to be a "Qualified Domestic Relations Order" as defined in 26 U.S.C. section 414(p) and 401(a)(13).
For the purpose of this Order:
"Participant" means (name), (address) whose social security number is and date of birth is .
"Alternate payee" means (name) (address) whose social security number is , and date of birth is .
"Plan" means the (exact description of employee's plan), whose plan administrator is (name) and whose address is (full address).
This court, with jurisdiction over the participant and the alternate payee, hereby orders:
1. That the plan pay directly to the alternate payee at the time the participant begins to receive benefits from the (employer's plan) under the terms of the plan for so long as the participant is receiving benefits under the plan, fifty percent (50%) of the participant's pension benefits as vested between (date of marriage), which is the date of marriage of the parties, through and including (date of separation), which is the date of separation of the parties. Any increase in the value of the retirement plan based on the participant's length of service or earnings after (date of separation of the parties) will accrue solely to the benefit of the participant.
2. The order shall apply to the plan. Any reference herein to the plan or to a particular provision of the plan shall be seemed to apply any successor or redesignated plan or provision as well.
3. This assignment of benefits does not require the redesignated plan to provide any type or form of benefit or any option not otherwise provided under the plan. This assignment does not require the plan to provide increased benefits (determined on the basis of actuarial value). This assignment does not require the plan to provide benefits to an alternate payee which are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order.
4. This order is issued pursuant to the laws of the state of West Virginia which relates to the provision of marital property rights, as defined therein between spouses and former spouses in actions for divorce.
5. That this court retains jurisdiction to amend this order only for purpose of establishing or maintaining this order as a qualified domestic relations order; that, further, the court may amend this order to revise or conform its terms so as to effectuate the express provisions of this order, the parties' separation agreement and the judgment for dissolution of marriage, as well as any modification to said agreement and judgment, with due consideration being given to the parties' expressed intent as contained in said agreement and order.
6. It is further ordered that this order shall be treated as a Qualified Domestic Relations Order as that term is defined under sections 401 (2) (13) and 414(p) of the Internal Revenue Code of 1986, 28 (as last amended, and section 206 (d)(3) of the employee retirement income security act of 1974, as amended.
This Qualified Domestic Relations Order is made and entered pursuant to and in conformity with the provisions of chapter forty- eight, article two-b of the West Virginia code as amended.
Entered this day of (Month) , (Year).

_______________________ Judge

§48-2D-7. Administration by employer.

Any employer who does business in this state, or who has any employees residing in this state where such employee or employees have an action for divorce pending before a circuit court in this state, is subject to the provisions of this article when the employer has in effect a plan, as defined in section two of this article. In addition, in any instance where a circuit court has jurisdiction over any person in a cause of action brought under article two of this chapter, the court also has jurisdiction over the qualified plan, plan administrator and its plan trustees to the extent necessary to compel obedience to the Qualified Domestic Relations Order Act entered by the court in accordance with the provisions of this article.

§48-2D-8. Mandatory time period for equitable distribution of pension or retirement plans.

Every firm, corporation, person or legal entity which is ordered by the circuit court and courts of record of this state to effect the equitable distribution of a retirement or pension plan pursuant to the terms of a Qualified Domestic Relations Order of said court, shall take steps to complete the administration and immediate authorization of the division and distribution of said plan accounts to the participant and alternate payee within sixty days following its receipt of written confirmation of the entry of Q.D.R.O. by said court.
§48-2D-9. Notice and opportunity to be heard; bond required; explanation of reasonable delay by employer.

(a) Once written notice of the entry of Q.D.R.O. by a court of competent jurisdiction is received by the plan administrator or other personal representative of the firm, corporation, person or legal entity legally responsible for the equitable division of the plan, he or she shall either:
(i) Administer and finalize the distribution of the plan within sixty days after his or her receipt of written notification of the entry of the Q.D.R.O. by the court; or
(ii) File a written motion before said court, setting forth with specific particularity the specific causes and reasons as to why the final administration and distribution of the plan's proceeds to the parties cannot reasonably be completed within the sixty day time period as mandated by this article, and shall include a specific statement as to each and every objection the plan administrator has regarding the Q.D.R.O.
(b) In the event the plan administrator files the written motion provided for in subsection-a of this section, the court shall require the employee to post a bond in any amount equal to one thousand dollars to ensure its compliance with the court's order.
(c) Prior to a hearing upon the motion of the plan administrator, reasonable notice and an opportunity to be heard shall be given to counsel for both parties by the employer's counsel within seven days prior to the hearing. A hearing upon the plan administrator's motion shall be held within sixty days after the motion is filed with the court, and in all events within ninety days following the entry of the Q.D.R.O., or as soon as is practicable thereafter considering the court's docket. At this hearing evidence may be introduced explaining or justifying the plan administrator's request for seeking an additional period of time in which to administer and distribute the proceeds of said plan to the party litigants.
(d) Following the completion of the motion hearing, the court shall enter a ruling upon the merits of the employer's motion, setting forth the court's specific findings and the basis of its decision. The court may, in its discretion, either deny the motion and order the employer's compliance with the terms of the Q.D.R.O. within fifteen days, or grant such reasonable extension of time as the court deems necessary to attain such compliance: Provided, That, such extension of time shall under no circumstances exceed an additional thirty day period.
§48-2D-10. Legal effect of Q.D.R.O..
A Q.D.R.O. entered by a court of this state which has jurisdiction under this chapter is legally binding upon the party litigants in the underlying domestic relations action and upon the employer, plan administrator and plan trustees. The plan administrator shall fully and timely comply with the terms and conditions of the Q.D.R.O., either within sixty days of entry of the order or as provided in section nie of this article. As to these parties, the Q.D.R.O. is conclusive as to all issues of fact and law unless subsequently modified by a court of competent jurisdiction.
§48-2D-11. Contempt; enforcement powers of court.
(a) The proceeds of the plan shall be timely administered and distributed by the employer as soon as practicable according to the terms and conditions of each such plan.
(b) The administration and distribution by the employer of the proceeds of a plan by means of a Q.D.R.O. entered by the circuit court and courts of record of this state shall be subject to and enforceable by the contempt powers of the court.
(c) Included and implicit in the contempt powers of the court, is the authority to impose sanctions upon the firm, corporation, person or legal entity for failure to comply with the court's directives ordering the timely administration and distribution of the plan's proceeds to the party litigants. Such sanctions include, but are not limited to, compensatory damages to the aggrieved party as determined by the court, monetary fines, an award of attorneys fees and court costs.
§48-2D-12. Modification of Q.D.R.O.
No Q.D.R.O. may be modified under any circumstances except by order of a court of competent jurisdiction. No written agreement by the party litigants, or contractual agreement between the employer, parties or the plan is valid to alter or modify a Q.D.R.O unless the same is specifically mandated by the terms and conditions of the Q.D.R.O. entered by the court exercising jurisdiction over the plan.
§48-2D-13. Certified copies of Q.D.R.O. to affected Parties.
The clerk of the circuit court of this state shall certify and forward a certified copy of the Q.D.R.O. to the party litigants, their legal counsel and to the plan administrator.



NOTE: The purpose of this bill is to set forth a statutory form for a Qualified Domestic Relations Order. The Bill specifies the form of the order and provides for notice and opportunity to be heard on the contents of the order.


This article is new; therefore, strike-throughs and underscoring have been omitted.