Colorado § 24-51-212 - Funds not subject to legal process.

§ 24-51-212. Funds not subject to legal process.

(1) Except for federal tax liens on distributions payable by the association, for Colorado tax distraints and liens pursuant to section 39-21-114, C.R.S., on distributions payable by the association, for assignments for child support purposes as provided for in sections 14-10-118 (1) and 14-14-107, C.R.S., as they existed prior to July 1, 1996, for income assignments for child support purposes pursuant to section 14-14-111.5, C.R.S., for writs of garnishment that are the result of a judgment taken for arrearages for child support or for child support debt, for payments from the association in compliance with a properly executed court order approving a written agreement entered into pursuant to section 14-10-113 (6), C.R.S., and for restitution that is required to be paid for the theft, embezzlement, misappropriation, or wrongful conversion of public property or in the event of a judgment for a willful and intentional violation of fiduciary duties pursuant to section 24-51-207 where the offender or a related party received direct financial gain, none of the moneys, trust funds, reserves, accounts, contributions pursuant to parts 4, 5, 14, 15, 16, and 17 of this article, or benefits referred to in this article shall be assignable either in law or in equity or be subject to execution, levy, attachment, garnishment, bankruptcy proceedings, or other legal process. Member contributions are subject to garnishment resulting from a judgment taken for arrearages for child support or for child support debt, for restitution that is required to be paid for the theft, embezzlement, misappropriation, or wrongful conversion of public property or in the event of a judgment for a willful and intentional violation of fiduciary duties pursuant to section 24-51-207 where the offender or a related party received direct financial gain, only if the membership has terminated and the member is not vested.

(2) Notwithstanding the provisions of this section, upon service to the association of orders, injunctions, or warrants issued pursuant to sections 18-17-105 and 18-17-106 or section 16-3-301, C.R.S., applicable to a member contribution account based upon allegations of theft, embezzlement, misappropriation, or wrongful conversion of public property, a member who terminates membership is prohibited from receiving a refund of the member's contribution account and matching employer contributions pursuant to section 24-51-405 or a refund of member contributions pursuant to part 17 of this article, until a court order or the issuing authority releases the member contribution account from said orders, injunctions, or warrants.

Source: L. 87: Entire article R&RE, p. 1051, § 1, effective July 1; entire section amended, p. 596, § 28, effective July 1. L. 91: Entire section amended, p. 826, § 2, effective April 9. L. 96: Entire section amended, p. 622, § 34, effective July 1; entire section amended, p. 1460, § 3, effective January 1, 1997. L. 97: Entire section amended, p. 66, § 11, effective July 1. L. 2004: Entire section amended, p. 1940, § 8, effective January 1, 2006. L. 2005: Entire section amended, pp. 72, 73, §§ 5, 6, effective August 8. L. 2008: Entire section amended, p. 63, § 1, effective August 5. L. 2009: (1) amended, (SB 09-066), ch. 73, p. 246, § 1, effective March 31; entire section amended, (SB 09-282), ch. 288, p. 1337, § 11, effective January 1, 2010.

Editor's note: (1) This section is similar to former §§ 24-51-120, 24-51-219, and 24-51-613.5 as they existed prior to 1987. For a detailed comparison, see the comparative tables located in the back of the index.

(2) Amendments to this section by Senate Bill 96-002 and Senate Bill 96-204 were harmonized.

(3) Amendments to subsection (1) by Senate Bill 09-066 and Senate Bill 09-282 were harmonized.

ANNOTATION

Annotator's note. Since § 24-51-212 is similar to §§ 24-51-120 and 24-51-219 as they existed prior to the 1987 repeal and reenactment of this article, relevant cases construing those provisions have been included in the annotations to this section.

Language of this section is clear and unambiguous, and, therefore, construction is unnecessary. Pueblo Reg'l Planning Comm'n v. Spytek, 36 Colo. App. 406, 542 P.2d 88 (1975).

Funds not subject to legal process. Funds accumulated in the retirement fund to the credit of a state employee may not be assigned, or subjected to execution, attachment, garnishment, or other legal process. Pub. Employees' Retirement Ass'n v. Johnson, 153 Colo. 239, 385 P.2d 415 (1963).

Accumulated deductions in a PERA member's contribution account are not subject to assignment for payment of future child support obligations. In re Riggs, 786 P.2d 504 (Colo. App. 1989).

Status of funds controls. This section is addressed to the funds held by the public employees' retirement association and their disbursement, and it is not the relationship of the parties, but rather the status of the funds, which controls. Pueblo Reg'l Planning Comm'n v. Spytek, 36 Colo. App. 406, 542 P.2d 88 (1975).

As moneys, not individuals, protected. Under this section, it is the "moneys" and the "benefits" which are protected, not the individuals. Pueblo Reg'l Planning Comm'n v. Spytek, 36 Colo. App. 406, 542 P.2d 88 (1975).

Right to receive refund of accumulated deductions protected. The right to receive a refund of accumulated deductions on the termination of one's employment is a statutory benefit, and, as such, is protected by this section. Pueblo Reg'l Planning Comm'n v. Spytek, 36 Colo. App. 406, 542 P.2d 88 (1975).

Power of attorney cannot vest any interest in fund and is revocable. Pub. Employees' Retirement Ass'n v. Johnson, 153 Colo. 239, 385 P.2d 415 (1963).

Payment out of fund after power of attorney is revoked is void. Pub. Employees' Retirement Ass'n v. Johnson, 153 Colo. 239, 385 P.2d 415 (1963).

Vested right not impaired by divorce decree. Where the trial court does not divide fund accumulations between the parties in a divorce proceeding, but merely considers the amount in determining the amount of other marital property to be retained by each, and no rights to this fund become vested in the wife in any manner, this treatment of the public employees' retirement association assets by the trial court is neither analogous to an assignment nor to a garnishment. In re Pope, 37 Colo. App. 237, 544 P.2d 639 (1975).