Community Property Rights

New Mexico is a community property state, which means that assets and property acquired during a marriage are considered to be jointly owned by both spouses. In the event of divorce, this applies to retirement benefits under the ERA.

ERB retirement benefits cannot be divided unless ERB receives a copy of an acceptable domestic relations order endorsed by the court (also known as a qualified domestic relations order or a “QDRO”) that directs the ERB on how the member’s retirement benefits will be divided between the member and the member’s former spouse. Even with a QDRO, payments of retirement or disability benefits cannot be made to a former spouse until the benefit payment is due to the member. In other words, if a member is not eligible to retire at the time of divorce, ERB cannot pay the nonmember
spouse his or her interest in the retirement account. No benefits can be divided unless ERB is served with a QDRO and the benefits are eligible for distribution to the ERB member. Orders dividing retirement benefits are subject to review and approval by ERB to ensure the order complies with the law and can be administered. Be sure to provide ERB with a QDRO to avoid a delay benefit payments.

ERB can provide on request, an account statement, history of accumulated quarterly salary and contributions, and beneficiary information to members going through a divorce. Members can download a model order with attorney instructions at the ERB website, www.nmerb.org, to help them draft an acceptable court order in 19compliance with the Educational Retirement Act. Other than through acceptable QDROs, properly prepared court orders for child support or liens from the IRS, member benefits cannot be assigned or attached by any legal process.