Updated November 8, 2026. Quick answer: The Employees Retirement System of Texas pays a former spouse only under a valid ERS QDRO, and following the ERS model template means ERS does not need to pre-approve the order. ERS cannot pay the former spouse until the member retires and starts a monthly payment or takes a one-time refund, and the payments end when the member, the member’s surviving beneficiary or the former spouse dies, whichever happens first.
What the order is called and what governs it
ERS says: “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.” On who can be paid: “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”.
The share and the ratio
The ERS FAQ gives the ratio to use: “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.”
When ERS pays
“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;” The legal rule behind the timing: “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.”
If someone dies
On the monthly benefit, ERS says: “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” (the last item is the former spouse’s own death). The model template adds: “All payments to Alternate Payee under this Order shall terminate upon Alternate Payee’s death or at such earlier date as may be required as a result of the retirement option selected by Participant.” On a death benefit: “no portion of such payment is community property, and Alternate Payee shall have no interest in such death benefit.”
What the model order does not allow
“Applicable Texas laws and rules do not currently permit alternate payees to receive any future benefit increases.”
The model template and review
ERS says it 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.” On the outcome of a review, ERS says: “Once we have reviewed the Decree and the QDRO, the parties involved will either receive an ERS QDRO approval letter or an ERS QDRO denial letter.”
Taxes and beneficiary forms
The model order says: “Alternate Payee is ORDERED to report any retirement payments received on any applicable income tax return”. Separately, ERS tells members: “If your divorce decree states you must name a specific person as your retirement and/or life insurance beneficiary, you must complete new beneficiary forms.”
Federal tax on a divorce-order payment
IRS Publication 575 describes the federal rule for a payment under a QDRO: “A spouse or former spouse who receives part of the benefits from a retirement plan under a QDRO reports the payments received as if they were a plan participant”. The Form 5329 instructions list the early-distribution exception for “Qualified retirement plan distributions made to an alternate payee under a qualified domestic relations order (doesn’t apply to IRAs)”. Whether your system’s order is treated as a QDRO for these purposes is a question for a tax preparer; the exception is explained on the Form 5329 exception code 06 page.
What the documents read for this page do not settle
- The text of Chapters 804 and 814 of the Texas Government Code and of ERS’s rules could not be read directly, so the statutes are cited only as ERS describes them.
- The documents read for this page print no ERS fee for reviewing or dividing an order.
- They do not say whether a separate-interest option exists, and they do not address disability retirement.
- The model template read is the one for Groups 1, 2 and 3; the template for members hired on or after September 1, 2022 was not compared.
Common mistakes
- Treating a decree award as self-executing. ERS pays only after it determines the order is a valid ERS QDRO.
- Counting the marriage in days. ERS says to use months of service credit.
- Expecting benefit increases to flow to the former spouse. The model template says Texas law does not currently permit it.
Related: Texas ERS retirement decisions, the QDRO checklist before you sign, and shared interest versus separate interest.
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Answer againSources
- Employees Retirement System of Texas, Qualified Domestic Relations Order (QDRO) FAQ: www.ers.texas.gov
- Employees Retirement System of Texas, ERS QDRO Model Template (Groups 1, 2 and 3): www.ers.texas.gov
- Employees Retirement System of Texas, Preparing for Your Retirement booklet: www.ers.texas.gov
- Employees Retirement System of Texas, Divorce (Active Employees, Life Changes): ers.texas.gov
- Internal Revenue Service, Publication 575, Pension and Annuity Income (for 2025 returns): www.irs.gov
- Internal Revenue Service, Instructions for Form 5329: www.irs.gov
Read from the primary documents linked above on November 8, 2026. General information, not tax advice. Your own facts decide the outcome, and a preparer or the IRS itself is the right place to confirm anything consequential.