Qualified Domestic Relations Order (QDRO)

A QDRO is a legal order subsequent to a divorce or legal separation that splits and changes ownership of a retirement plan to give the divorced spouse his or her share of the asset. ERS must receive a photocopy of the divorce decree and the original certified copy of the QDRO for review and approval by ERS' general counsel. Benefits are payable to an alternate payee only if ERS determines the order to be a valid ERS QDRO.

NOTE: By statute, ERS may not pay benefits to an alternate payee before the retirement of the member, the distribution of a withdrawal of contributions to the member or other distribution required by law.

Once ERS has a copy of the divorce decree and approves the original certified copy of the QDRO, ERS cannot issue payments to the alternate payee until the member either:
  • retires and starts receiving a monthly payment, in which case the alternate payee will receive a portion of the payment each month;
  • quits working for the state and takes a one-time refund of their ERS retirement account, in which case, the alternate payee will receive a one-time portion of the refund;
  • passes away and the ERS account becomes a payable death benefit, in which case the alternate payee will receive a portion of what the estate/beneficiary(ies) will receive; or
  • takes another distribution required by law, in which case payment amounts and disbursement to the alternate payee depend on the payment option chosen by the member.

Once one of the actions listed above has occurred, ERS will contact the alternate payee, in writing, to provide the amount and the steps to claim the payment(s).

Follow steps A through E below to submit a QDRO to ERS: 

NOTE: Both the divorce decree/child support order and QDRO must be signed and dated by a judge, and the certified copy of the QDRO must be the actual copy stamped and certified by the county clerk (not a photocopy).

  1. Use the ERS QDRO model as a guide.
  2. A QDRO by itself is not complete. The QDRO must be consistent with the signed divorce decree or signed child support order.
    • ERS does not “pre-approve” unsigned QDRO drafts. However, if you follow the ERS QDRO model template, ERS’ pre-approval of a QDRO is not needed.
    • ERS created its QDRO model by closely following the terms of Chapter 804 of the Texas Government Code, along with special QDRO administration rules developed by the ERS Board of Trustees at Title 34, Texas Administrative Code, Chapter 74.
  3. Get the QDRO signed and dated by the judge who is exercising jurisdiction over the divorce or child support lawsuit.
  4. Have the original QDRO certified by the county clerk in the county where the divorce was granted, and ask for a certified copy.
    • The county courthouse will keep the original QDRO.
    • The county clerk should stamp, sign and the date a certified copy, as a true and correct copy of the original QDRO.
  5. Mail the certified copy of the QDRO and a photocopy of the final decree of divorce to one of the addresses below.
Mailing Address Physical Address
P.O. Box 13207 200 E. 18th St.
Austin, TX 78711-3207 Austin, TX 78701-1400

Changes in the family relationship are the only circumstances in which a court can order a redirection of ERS retirement benefits. In other words, the law only allows ERS to pay retirement benefits to a person other than an ERS member or the member's designated beneficiary in the case of divorce or child support, and never in any other circumstances.

The special language that has to be in the ERS QDRO model is described in state law in Chapter 804 of the Texas Government Code. A QDRO for ERS retirement purposes has to have special language that is not found in other versions of QDROs for other retirement plans. Unlike private employers, ERS is expressly exempt from certain federal QDRO laws like the Employees Retirement Income Security Act (ERISA) or Section 414 of the IRS Code. Therefore, a QDRO that makes references to these laws will not be acceptable to ERS. Separate QDROs will be required by other retirement systems.

A state employee is not allowed to withdraw or "cash out" retirement contributions while still employed by the state. Because an active state employee can't cash out retirement contributions from their ERS retirement account, neither can an alternate payee, as a matter of law.

Therefore, the law strictly forbids any sort of immediate distribution of retirement contributions to the alternate payee. If the ERS member quits working for the state and then asks for a refund of contributions, the alternate payee would get a share of those contributions. However, the law does not allow an alternate payee to dictate whether a former state employee withdraws ERS contributions or not.

This means ERS cannot pay the alternate payee until we have an approved QDRO on file and the member either:

  • retires and starts to receive a monthly payment,
  • quits and takes a refund of their ERS retirement account or
  • passes away and the account becomes a payable death benefit to the estate and/or designated beneficiary(ies).

You cannot pass this benefit on to your children because the payments will not continue after the death of the member (or, if applicable, the death of his/her surviving beneficiary) or your death, whichever comes first, as a matter of law. If you ever receive any retirement benefit through an approved ERS QDRO as an alternate payee, that benefit will end upon one of the following, whichever happens first:

  • the death of the ERS member;
  • the death of the member’s surviving beneficiary, if the member designated a beneficiary to receive annuity payments after his/her death and died before that beneficiary; or
  • your death.

In fact, if your ex-spouse is still working and you die before they retire, you and your estate will not receive any payment(s) based upon the approved QDRO. This is a matter of statutory law that has withstood court challenge. It is different from the federal law that applies to private employers.

The ERS retirement plan is a defined benefit plan. In other words, the amount of money that a member puts into the system bears no direct relationship to the amount of retirement benefits that the person will receive. Do not use the member’s ERS retirement account balance or contribution amount as a gauge for a property settlement in a divorce unless you expect that the ERS member will withdraw the account balance. The ERS member cannot be ordered or forced by the QDRO to withdraw their ERS account balance.

Also, because the ERS plan is a defined benefit plan, it is inappropriate and misleading to use member payroll contribution levels to calculate the community property share of the retirement interest. Instead, to calculate the community property interest, you should always use the ratio of service credit (in months, not days) accumulated during marriage divided by the total service credit (in months) accumulated up to divorce.

NOTE: ERS will not provide any actuarial valuations.

No. ERS is not your attorney and cannot advise you as to what you should do in your divorce. Any questions outside the scope of QDRO approval should be directed to your attorney.

The editorial staff of the State Bar Family Law Practice Manual publishes a QDRO form for state governmental plans. However, this form includes wording that is not specifically coordinated with ERS requirements, and its use risks our rejection if submitted without necessary changes. Therefore, we recommend that you use the ERS QDRO model. This assures you are using the language that ERS considers the most up-to-date and acceptable.