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Unofficial Opinion 98-13

Unofficial Opinion 98-13

November 2, 1998
To: 

Judge, Superior Courts
Ocmulgee Judicial Circuit

Re: 

A superior court judge who was a member of the Superior Court Judges Retirement System and who paid the requisite contribution to obtain spousal benefits under that system may not recoup those spousal contributions if she subsequently chooses to reject spousal benefits under the new Georgia Judicial Retirement System.

You have asked whether a superior court judge’s spousal contributions to the Superior Court Judges Retirement System are forfeited if the judge later rejects spousal benefits under the Georgia Judicial Retirement System, which took effect July 1, 1998. The short answer is yes. Under both the Superior Court Judges Retirement System and the new Georgia Judicial Retirement System, a member is permitted to obtain spousal benefits, but is warned that “[w]hen a member ceases to make such employee contributions, there shall be no return of such contributions previously made by such member.” O.C.G.A. § 47-9-73(i) (repealed 1998); O.C.G.A. § 47-23-105(c).

There are two statutory provisions pertinent to your inquiry: 1) the provisions in Chapter 9 of Title 47 (known as the Superior Court Judges Retirement System) that governed prior to July 1, 1998, and 2) Chapter 23 of Title 47 (known as the Georgia Judicial Retirement System) that became effective July 1, 1998. Under either statute, you may not recoup the contributions that you have made for spousal benefits. In fact, if it were not for the new statute, you would be legally obligated to continue paying the 2 1/2% spousal contributions for 16 years, unless your spouse died or you “ceas[ed] to be married[.]” See O.C.G.A. § 47-9-73(h) (“When a member elects to obtain spouses benefits . . . such member shall continue to make employee contributions required under this Code section for spouses benefits until such time as such member attains 16 years of creditable service for the purpose of spouses benefits.”) (Emphasis added); O.C.G.A. § 47-9-73(i) (“If the spouse of a member dies or if a member ceases to be married, then such member who has elected to obtain spouses benefits . . . may cease making the employee contributions for spouses benefits.”).

There is no other provision in the Judges Retirement System that allows a member to stop paying spousal benefit contributions once the member selects such benefits. Furthermore, even when a spouse dies or the member and spouse divorce, contributions are not refunded. See O.C.G.A. § 47-9-73(i) (“When a member ceases to make such employee contributions, there shall be no return of such contributions previously made by such member.”).

The new retirement system provides a member with no greater rights in this regard. “When a member ceases to make such employee contributions, there shall be no return of such contributions previously made by such member.” O.C.G.A. § 47-23-105(c).

Accordingly, based on a careful review of the statutes applicable to the Superior Court Judges Retirement System and the Georgia Judicial Retirement System, it is my unofficial opinion that a superior court judge may not recoup spousal benefit contributions that she paid into the Superior Court Judges Retirement System if she later rejects spousal benefits under the Georgia Judicial Retirement System.

Prepared by:

MELANIE D. WILSON
Assistant Attorney General