A Handbook for
Attorneys on
Court-ordered
Retirement, Health
Benefits and Life
Insurance Under the
• Civil Service Retirement Benefits
• Federal Employees Retirement Benefits
• Federal Employees Health Benefits
• Federal Employees Group Life Insurance Program
United States
Office of Retirement and
Personnel Insurance
Management Service
RI 38-116
Revised July 1997
Blank Page
Table of Contents
Table of Contents
Introduction ........................................................ 1
Retirement ......................................................... 5
Preparing a Court Order .............................................. 6
Exemption from ERISA ............................................. 6
Benefits payable .................................................. 6
Information Available From the Federal Government ............................ 7
Information available on current employees ................................ 7
Information on retirees and former employees .............................. 8
Information Not Available From the Government .............................. 8
CSRS Statutory Provisions ............................................. 11
§ 8346. Exemption from legal process; recovery of payments ....................... 11
§ 8345. Payment of benefits; commencement, termination, and waiver of annuity .......... 12
8341. Survivor annuities ............................................. 13 §
§ 8342. Lump-sum benefits; designation of beneficiary; order of precedence ............. 16
FERS Statutory Provisions ............................................. 17
§ 8470. Exemption from legal process; recovery of payments ....................... 17
8467. Court orders ................................................. 17 §
§ 8445. Rights of a former spouse ........................................ 18
8401. Definitions .................................................. 21 §
§ 8424. Lump-sum Benefits; designation of beneficiary; order of precedence ............. 21
Retirement Regulations ................................................ 23
How the Regulations Are Organized ....................................... 23
Table of Contents
Subpart A--Court Orders Generally ...................................... 30
ii
Table of Contents
ORGANIZATION AND STRUCTURE OF REGULATIONS ON COURT ORDERS ....... 30
§ 838.101 Purpose and scope. ...................................... 30
§ 838.102 Regulatory structure. ..................................... 31
838.103 Definitions. ........................................... 32 §
Civil Service Retirement System ................................... 32
Court order ................................................ 32
Court order acceptable for processing ................................ 32
Employee .................................................. 32
Employee annuity ............................................ 32
ERISA ................................................... 33
Federal Employees Retirement System or FERS ......................... 33
Former spouse .............................................. 33
Former spouse survivor annuity ................................... 33
Gross annuity ............................................... 33
Member ................................................... 33
Net annuity ................................................. 33
Reduction to provide survivor benefits ............................... 34
Refund of employee contributions .................................. 34
Separated employee ........................................... 34
STATUTORY LIMIT ON COURT'S AUTHORITY .......................... 34
§ 838.111 Exemption from legal process except as authorized by Federal law. ....... 34
DIVISION OF RESPONSIBILITIES .................................... 35
§ 838.121 OPM's responsibilities. .................................... 35
§ 838.122 State courts' responsibilities. ................................ 35
§ 838.123 Claimants' responsibilities. ................................. 35
§ 838.124 Employees' and retirees' responsibilities. ........................ 36
PROCEDURES APPLICABLE TO ALL COURT ORDERS ..................... 36
§ 838.131 Computation of time. ..................................... 36
§ 838.132 Payment schedules. ...................................... 36
838.133 Minimum awards. ....................................... 37 §
§ 838.134 Receipt of multiple court orders. .............................. 37
838.135 Settlements. ........................................... 38 §
§ 838.136 Administrative appeal rights. ................................ 38
ADDRESS FOR FILING COURT ORDERS WITH OPM ...................... 39
Appendix A to Subpart A of Part 838--Addresses for Serving Court Orders Affecting
CSRS or FERS Benefits. ........................................ 39
Subpart B--Procedures for Processing Court Orders Affecting Employee Annuities ..... 40
REGULATORY STRUCTURE ........................................ 40
§ 838.201 Purpose and scope. ...................................... 40
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Table of Contents
AVAILABILITY OF FUNDS ......................................... 40
§ 838.211 Amounts subject to court orders. ............................. 40
APPLICATION AND PROCESSING PROCEDURES ........................ 41
§ 838.221 Application requirements. .................................. 41
§ 838.222 OPM action on receipt of a court order acceptable for processing. ........ 42
§ 838.223 OPM action on receipt of a court order not acceptable for processing. ..... 44
§ 838.224 Contesting the validity of court orders. .......................... 45
§ 838.225 Processing amended court orders. ............................. 45
PAYMENT PROCEDURES ......................................... 46
§ 838.231 Commencing date of payments. .............................. 46
§ 838.232 Suspension of payments. ................................... 46
§ 838.233 Termination of payments. .................................. 46
§ 838.234 Collection of arrearages. ................................... 47
§ 838.235 Payment of lump-sum awards. ............................... 47
§ 838.236 Court orders barring payment of annuities. ....................... 47
§ 838.237 Death of the former spouse. ................................. 48
PROCEDURES FOR COMPUTING THE AMOUNT PAYABLE ................. 48
§ 838.241 Cost-of-living adjustments. ................................. 48
§ 838.242 Computing lengths of service. ............................... 49
§ 838.243 Minimum amount of awards. ................................ 49
Subpart C-- Requirements for Court Orders Affecting Employee Annuities ........... 50
§ 838.301 Purpose and scope. ...................................... 50
§ 838.302 Language not acceptable for processing. ......................... 50
Qualifying Domestic Relations Orders. ............................... 50
Benefits for the lifetime of the former spouse. .......................... 51
§ 838.303 Expressly dividing employee annuity. .......................... 51
§ 838.304 Providing for payment to the former spouse. ...................... 51
§ 838.305 OPM computation of formulas. .............................. 52
§ 838.306 Specifying type of annuity for application of formula, percentage or fraction. . 54
Subpart D--Procedures for Processing Court Orders Affecting Refunds of Employee
Contributions ................................................... 55
REGULATORY STRUCTURE ........................................ 55
§ 838.401 Purpose and scope. ...................................... 55
AVAILABILITY OF FUNDS ......................................... 56
§ 838.411 Amounts subject to court orders. ............................. 56
APPLICATION AND PROCESSING PROCEDURES ........................ 56
§ 838.421 Application requirements. .................................. 56
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Table of Contents
§ 838.422 Timeliness of application. .................................. 57
§ 838.423 OPM action on receipt of a court order acceptable for processing. ........ 57
§ 838.424 OPM action on receipt of a court order not acceptable for processing. ..... 59
§ 838.425 Contesting the validity of court orders. .......................... 59
PAYMENT PROCEDURES ......................................... 60
§ 838.431 Correcting failures to provide required spousal notification. ............ 60
§ 838.432 Court orders barring payment of refunds. ........................ 60
PROCEDURES FOR COMPUTING THE AMOUNT PAYABLE ................. 61
§ 838.441 Computing lengths of service. ............................... 61
Subpart E-- Requirements for Court Orders Affecting Refunds of Employee
Contributions ................................................... 62
§ 838.501 Purpose and scope. ...................................... 62
§ 838.502 Expressly dividing a refund of employee contributions. ............... 62
§ 838.503 Providing for payment to the former spouse. ...................... 63
§ 838.504 OPM computation of formulas. .............................. 63
§ 838.505 Barring payment of refunds. ................................ 64
Subpart F--Terminology Used in Court Orders Affecting Employee Annuities or Refunds
of Employee Contributions .......................................... 65
REGULATORY STRUCTURE ........................................ 65
§ 838.601 Purpose and scope. ...................................... 65
IDENTIFICATION OF BENEFITS ..................................... 66
§ 838.611 Identifying the retirement system. ............................. 66
§ 838.612 Distinguishing between annuities and contributions. .................. 66
COMPUTATION OF BENEFITS ...................................... 67
838.621 Prorata share. .......................................... 67 §
§ 838.622 Cost-of-living and salary adjustments. .......................... 68
§ 838.623 Computing lengths of service. ............................... 69
§ 838.624 Distinguishing between formulas and fixed amounts. ................. 71
§ 838.625 Types of annuity. ....................................... 71
MODEL PARAGRAPHS ........................................... 72
Appendix A to Subpart F of Part 838--Recommended Language for Court Orders
Dividing Employee Annuities. .................................... 72
TABLE OF CONTENTS .......................................... 73
000 Series--Special Technical Provisions. ............................ 74
¶001 Language required in Qualified Domestic Relations Orders. ........... 74
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Table of Contents
100 Series--Identification of the benefits and instructions that OPM pay the
former spouse. ......................................... 74
¶101 Identifying retirement benefits and directing OPM to pay the former spouse. 74
¶111 Protecting a former spouse entitled to military retired pay. ............ 75
200 Series--Computing the amount of the former spouse's benefit. ........... 75
¶201 Award of a fixed monthly amount. ........................... 75
¶202 Award of a percentage. ................................... 76
¶203 Award of a fraction. .................................... 76
¶204 Award of a prorata share. ................................. 76
¶211 Award based on a stated formula. ............................ 77
¶231 Awarding COLA's on fixed monthly amounts. .................... 78
¶232 Excluding COLA's on awards other than fixed monthly amounts. ........ 78
300 Series--Type of annuity. ..................................... 79
¶301 Awards based on benefits actually paid. ........................ 79
¶311 Awards of earned annuity in cases where the actual annuity is based on
disability. ............................................. 79
400 Series--Refunds of employee contributions. ........................ 80
¶401 Barring payment of a refund of employee contributions. .............. 81
¶402 Dividing a refund of employee contributions. ..................... 81
500 Series--Death of the former spouse. ............................. 81
¶501 Full annuity restored to the retiree. ........................... 81
¶502 Former spouse share paid to children. ......................... 81
¶503 Former spouse share paid to the court. ......................... 82
Subpart G--Procedures for Processing Court Orders Awarding Former Spouse Survivor
Annuities ...................................................... 83
REGULATORY STRUCTURE ........................................ 83
§ 838.701 Purpose and scope. ...................................... 83
LIMITATIONS ON SURVIVOR ANNUITIES ............................. 84
§ 838.711 Maximum former spouse survivor annuity. ....................... 84
APPLICATION AND PROCESSING PROCEDURES ........................ 84
§ 838.721 Application requirements. .................................. 84
§ 838.722 OPM action on receipt of a court order acceptable for processing. ..... 85
§ 838.723 OPM action on receipt of a court order not acceptable for processing. ..... 88
§ 838.724 Contesting the validity of court orders. .......................... 88
§ 838.725 Effect on employee and retiree election rights. ..................... 89
PAYMENT PROCEDURES ......................................... 89
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Table of Contents
§ 838.731 Commencing date of payments. .............................. 89
§ 838.732 Termination of entitlement. ................................. 89
§ 838.733 Rights of current and other former spouses after termination of a former
spouse's entitlement. ........................................... 90
§ 838.734 Payment of lump-sum awards by survivor annuity. .................. 91
§ 838.735 Cost-of-living adjustments. ................................. 91
Subpart H-- Requirements for Court Orders Awarding Former Spouse Survivor Annuities
............................................................ 93
§ 838.801 Purpose and scope. ...................................... 93
§ 838.804 Court orders must expressly award a former spouse survivor annuity or
expressly direct an employee or retiree to elect to provide a former spouse survivor
838.802 CSRS limitations. ....................................... 93 §
§ 838.803 Language not acceptable for processing. ......................... 93
Qualifying Domestic Relations Orders. ............................... 93
Employee annuity cannot continue after the death of the retiree. ............... 94
annuity. ................................................... 94
§ 838.805 OPM computation of formulas in computing the designated base. ......... 95
838.806 Amended court orders. .................................... 95 §
§ 838.807 Cost must be paid by annuity reduction. ......................... 97
Subpart I--Terminology Used in Court Orders Awarding Former Spouse Survivor
Annuities ...................................................... 99
REGULATORY STRUCTURE ........................................ 99
§ 838.901 Purpose and scope. ...................................... 99
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Table of Contents
IDENTIFICATION OF BENEFITS ..................................... 100
§ 838.911 Identifying the retirement system. ............................. 100
§ 838.912 Specifying an award of a former spouse survivor annuity. ............. 101
COMPUTATION OF BENEFIT ....................................... 102
§ 838.921 Determining the amount of a former spouse survivor annuity. ........... 102
838.922 Prorata share defined. .................................... 103 §
§ 838.923 Cost-of-living adjustment before the death of a retiree. ............... 104
MISCELLANEOUS PROVISIONS ..................................... 104
§ 838.931 Court orders that provide temporary awards of former spouse survivor
§ 838.932 Court orders that permit the former spouse to elect to receive a former spouse
annuities. .................................................. 104
survivor annuity. ............................................. 105
MODEL PARAGRAPHS ........................................... 107
Appendix A to Subpart I of Part 838-- Recommended Language for Court Orders
Awarding Former Spouse Survivor Annuities. ........................ 107
TABLE OF CONTENTS .......................................... 109
700 Series--Computing the amount of the former spouse's benefit. ........... 110
¶751 Changing amount of former spouse survivor annuity based on remarriage
¶752 Changing amount of former spouse survivor annuity based on remarriage
¶701 Award of the maximum survivor annuity. ....................... 110
¶702 Award that continues the pre-divorce survivor annuity benefits. ......... 111
¶703 Award of a prorata share. ................................. 111
¶704 Award of a fixed monthly amount. ........................... 111
¶711 Award of a percentage or fraction of the employee annuity. ........... 112
¶712 Award based on a stated formula as a share of employee annuity. ....... 112
¶721 Award of a percentage or fraction of the maximum survivor annuity. ..... 113
¶722 Award based on a stated formula as a share of maximum survivor annuity. . 113
before retirement. ........................................ 114
after retirement. ......................................... 114
800 Series--Paying the cost of a former spouse survivor annuity. ............ 115
¶801 Costs to be paid from the employee annuity. ..................... 115
¶802 Costs to be paid from former spouse's share of the employee
annuity. ............................................... 115
900 Series--Refunds of employee contributions. ........................ 116
¶901 Barring payment of a refund of employee contributions. .............. 116
¶902 Dividing a refund of employee contributions. ..................... 116
viii
Table of Contents
Former Spouse Health Benefits Coverage
................................. 119
FEHB Statutory Provisions ............................................. 121
§ 8901. Definitions .................................................. 121
§ 8905. Election of Coverage ........................................... 123
Health Benefits Regulations ............................................ 125
Subpart H--Benefits for Former Spouses .................................. 125
890.801 Introduction. ............................................. 125 §
890.802 Definition. .............................................. 125 §
§ 890.803 Who may enroll. .......................................... 125
§ 890.804 Coverage. ............................................... 126
Type of enrollment. ............................................. 126
Proof of dependency. ............................................ 126
Exclusions from coverage. ......................................... 127
Child incapable of self-support. ...................................... 127
Meaning of unmarried child. ....................................... 127
§ 890.805 Application time limitations. .................................. 127
§ 890.806 Effective dates of coverage. ................................... 128
Generally. ................................................... 128
Change required because of insufficient annuity. ........................... 129
890.807 Termination of enrollment. ................................... 129 §
Coverage of members of the family. .................................. 130
Cancellation. .................................................. 130
§ 890.808 Employing Office Responsibilities. .............................. 131
Application for benefits. .......................................... 131
Administration of the enrollment process. ............................... 131
Qualifying court order. ........................................... 132
Premium payments. ............................................. 132
Withholding from annuity. ......................................... 133
Life Insurance ....................................................... 135
Assignment of Life Insurance Coverage ..................................... 137
FEGLI Statutory Provisions ............................................ 141
§8706. Termination of Insurance; Assignment of Ownership ...................... 141
ix
Court Orders Affecting
Civil Service Retirement Benefits
Federal Employees Retirement Benefits
Federal Employees Health Benefits
and
Federal Employees Group Life Insurance Benefits
Statutes and Regulations
Introduction
This publication contains the Federal statutes
and regulations applicable to court orders affecting
retirement benefits under the Civil Service
Retirement System (CSRS) and the Federal
Employees Retirement System (FERS). The
United States Office of Personnel Management
(OPM) administers both of these retirement
systems. CSRS covers most employees first hired
before 1984. FERS generally covers employees
This publication is for attorneys
and others who are involved in the
preparation of divorce and
separation agreements that involve
a current or former employee of
the Federal Government.
first hired by the Federal Government after 1983,
plus other Federal employees who elected to
transfer from CSRS to FERS. The publication
also includes the statutes and regulations describing
the conditions under which a former spouse's
Federal Employees Health Benefits (FEHB)
coverage may be continued after a divorce, as well
as the statute under which an employee or former
employee may make an irrevocable assignment of
his or her Federal Employees' Group Life
Insurance (FEGLI) coverage.
This publication is for attorneys and others
who are involved in the preparation of divorce and
separation agreements that involve a current or
former employee, including an annuitant, of the
Federal Government who is or was covered by the
CSRS or FERS.
Introduction
The pocket at the end of this publication
contains a 3.5 inch diskette containing the model
language that may be used in drafting court orders.
The diskette contains three files with the model
language in three common word processor
formats. COMODEL.WP is in WordPerfect
format. COMODEL.WRD is in Word format.
COMODEL.GEN is in a generic word processor
format.
Note: Certain individuals who may be covered by
other retirement systems (such as the Foreign
Service Retirement System) still participate in the
FEHB and FEGLI programs. The rules
concerning continuation of FEHB coverage for
former spouses after divorce and assignment of
FEGLI coverage to a former spouse also apply to
this group of individuals.
2
RETIREMENT
Retirement
OPM published revised regulations on court
orders affecting retirement benefits in the Federal
Register on July 29, 1992. These regulations
synthesize our experience in processing court
orders since 1978. They are designed to make it
easier for parties in a divorce to ensure that court
orders will be acceptable to OPM for processing,
and that OPM will divide CSRS or FERS benefits,
or provide a survivor benefit, in accordance with
their wishes.
The new regulations, which are reproduced
in this document, are very detailed as to what
constitutes a court order that is acceptable for
processing, and as to the exact meaning of court
order terminology. The definitions in these
Appendices to the regulations
contain model paragraphs that
attorneys can use to ensure that, in
drafting orders, the language they
select will both produce the
intended result and meet OPM's
processing requirements.
regulations are designed to give the most
commonly-used meaning to words most often
encountered in court orders. This will allow OPM
to accept as many court orders as possible rather
than rejecting orders, which would require the
parties to return to State court. To further
facilitate preparation of acceptable orders,
The regulations . . . apply to court
orders that OPM receives on or
after January 1, 1993.
appendices to the regulations contain model
paragraphs that attorneys can use to ensure that, in
drafting orders, the language they select will both
produce the intended result and meet OPM's
processing requirements. While the regulations
themselves apply to court orders that OPM
receives on or after January 1, 1993, a court order
prepared using them also will be acceptable under
the regulations that apply to orders that OPM
receives before January 1, 1993. In addition,
OPM strongly encourages use of the model
language to ensure that a court order will be
acceptable for processing by OPM.
OPM's role is ministerial, rather
than that of a mediator in marital
property disputes.
OPM's role is ministerial, rather than that of
a mediator in marital property disputes. This latter
role belongs to the State courts. If a court order
is so flawed that it is not sufficiently clear to satisfy
our requirements, the appropriate action is for the
parties to return to the State court to correct the
problem. Likewise, if a party contends that the
court intended its order to have a different meaning
than the clear meaning it has under these
regulations, the proper forum for the individual's
complaint is the State court. OPM will require
employees and former spouses to settle disputes in
the State courts where they belong, not in Federal
proceedings. The courts issuing the orders are in
the best position to determine the meaning of their
own orders.
Please note that this publication does not
contain information on garnishment of pay or
annuity of an employee or annuitant for alimony or
child support. OPM's regulations governing
garnishments may be found in Part 581 of title 5 of
the Code of Federal Regulations.
Preparing a Court Order
Exemption from ERISA
A substantial number of State court orders
are drafted under the mistaken belief that the
Employee Retirement Income Security Act
(ERISA) (29 U.S.C. 1001 et seq.) applies to CSRS
or FERS benefits. Sections 1003(b)(1) and 1051
of title 29, United States Code, exempt CSRS and
Retirement
FERS from ERISA, because CSRS and FERS are
"governmental plans" as defined in section
1001(23) of title 29, United States Code.
ERISA created the term "qualified domestic
relations order" (QDRO) to describe a court order
that summarizes the division of retirement benefits
under ERISA plans. QDRO's are not acceptable
to affect CSRS or FERS benefits. OPM has seen
from experience that attorneys prepare these
orders on the assumption that they can provide any
benefits available under ERISA to CSRS and
FERS. (For example, the most important
difference between ERISA plans and CSRS and
FERS is that under ERISA the former spouse's
share of the benefit can begin when the employee
An order labelled as a QDRO is
not acceptable.
reaches the minimum retirement age, even if the
employee is still working. However, this benefit
is not available under CSRS or FERS. The
availability of this early benefit, or lack of
availability, can seriously alter negotiations over a
settlement agreement.)
Since CSRS and FERS are exempt from
ERISA, some provisions that ERISA plans must
honor do not apply to CSRS and FERS. For OPM
to be able to process court orders in the way
intended by the parties, OPM and the court must
be speaking the same language. To assure that the
court has used our terminology, rather than
ERISA's terminology, an order labelled as a
QDRO is not acceptable. However, this
prohibition against labelling the order as a QDRO
does not apply if court orders also expressly state
that they are written in conformity with OPM's
regulations. This exception will guarantee that the
purpose of the ban--that the court understands that
we are exempt from ERISA and that the court is
using the terminology as provided in the
regulations--is satisfied by requiring that any
QDRO mention the regulations. Model paragraph
¶001 in appendix A to subpart F of the regulations
provides the required language. (See page 74.)
A substantial number of State
court orders are drafted under the
mistaken belief that the Employee
Retirement Income Security Act
(ERISA) (29 U.S.C. 1001 et seq.)
applies to CSRS or FERS benefits.
Sections 1003(b)(1) and 1051 of
title 29, United States Code,
exempt CSRS and FERS from
ERISA.
Benefits payable
A court order may affect any of three types
In preparing a court order,
attorneys should keep in mind that
we consider each of the three types
of awards as separate and
independent of the other two, and
should exercise great care in each
type of benefit they intend to
affect.
of retirement benefits paid by OPM. The
regulations treat each of the three--employee
annuities, refunds of employee contributions, and
survivor annuities--independently. In preparing a
court order, attorneys should keep in mind that we
consider each of the three types of awards as
separate and independent of the other two, and
should exercise great care in each type of benefit
5
Retirement
they intend to affect. Our requirement that the State court orders cannot affect several types
award of each type of benefit be independent does of benefits payable under CSRS and FERS. OPM
not mean that the court award of one type of must pay any accrued annuity that is not paid
benefit cannot affect another. For example, before a retiree's death and any unexpended
awarding a former spouse survivor annuity balance of an employee's retirement contributions
requires a reduction in the employee annuity. If that are paid as a death benefit in accordance with
the former spouse has also been awarded a portion the order of precedence established by Federal
of the gross or net employee annuity, the former law. Similarly, eligibility for children's survivor
spouse's portion of the employee annuity will be benefits is governed entirely by Federal law and
affected. cannot be affected by State court orders.
A complete court order requires
three separate provisions--one
addressing each type of benefit
that the court can affect.
The employing agency is the
proper source for employment and
pay information about a current
employee's service with that
agency.
A complete court order requires three
separate provisions--one addressing each type of
benefit that the court can affect. However,
frequently, courts intend to award only a portion of
the employee annuity or a survivor annuity, rather
than a complete retirement package. A court that
intends only to divide an employee annuity needs
to consider only subparts A, B, C, and F of these
regulations. Similarly, if the court intends to
award only a survivor annuity, only subparts A, G,
H, and I of these regulations apply. To provide a
former spouse with a share of an employee annuity
or refund of employee contributions and a survivor
annuity, the order must include the language
required by the appropriate subparts and,
preferably, the model language appendices. Note
that if the employee receives a refund of retirement
contributions, the former spouse's future annuity
entitlement will be voided. The court may wish to
prevent payment of the refund of retirement
contributions or award the former spouse a portion
of the refund. Subparts A, D, E, and F apply to
refunds of retirement contributions. Paragraph
401 in appendix A to subpart F contains language
that may be used to prevent a refund of retirement
contributions. (See pages 80-81.) The complete
regulatory structure is addressed in section 838.102
of regulations. (See page 31.)
Information Available From the
Federal Government
Information available on current
employees
The employing agency is the proper source
for employment and pay information about a
current employee's service with that agency.
OPM does not receive records until after an
employee leaves an agency's employment. With
regard to requests for an individual's employment
and pay records, agency personnel must comply
with Privacy Act rules and applicable regulations
before disclosing the information.
However, if a current employee has previous
employment with a different Federal agency (for
example, someone who currently is a civilian
employee with the Department of the Army, but
who previously worked for the U.S. Postal
Service), information about the employee's
contributions to the Retirement Fund during the
prior service is only available from OPM.
6
Retirement
Commonly requested information, which
agencies can provide in response to a subpoena
signed by a judge or a release signed by the
employee, includes a statement of retirement
system coverage (CSRS or FERS), the amount of
money withheld by that agency to the employee's
credit in the retirement fund, and an annuity
estimate using the employee's service history to
date. The exact requirements for obtaining
information vary among agencies. Information
about the agency's procedures for obtaining such
information should be obtained from the agency
involved. If an agency provides an annuity
estimate--as agencies generally do for employees
at or near retirement--that benefit calculation is
only an estimate, and is not binding on the
Government. Agencies should not provide
estimates that would require speculation about
future promotions, program changes, or any other
non-factual information and should avoid giving
annuity estimates for employees who are not close
to retirement. Official computations are made by
OPM only at the time benefits become payable.
Information on retirees and former
employees
OPM is the proper source of
information about retirees and
former employees.
OPM is the proper source of information
about retirees and former employees. OPM has
information available on former employees and
retirees similar to the information, described in the
previous paragraph, available from agencies on
current employees. In addition, OPM has annuity
rate information on retirees. OPM can release this
information only in response to a subpoena signed
by a judge or a release signed by the retiree or
former employee. The subpoena or release should
be sent to:
Associate Director for
Retirement and Insurance
U.S. Office of Personnel
Management
Post Office Box 16
Washington, DC 20044-0016
Please note that a different agency, the
Federal Retirement Thrift Investment Board (the
Board) administers the Thrift Savings Plan for
Federal employees. The Board's regulations
governing court orders are in subparts G and I of
part 1650 of Title 5, Code of Federal Regulations.
Questions about an individual's thrift account or
the Board's rules governing court orders should be
directed to the
Office of General Counsel
Federal Retirement Thrift
Investment Board
805 15th Street, NW
Washington, DC 20005-2207
Information Not Available From
the Government
Federal agency personnel do not advise an
employee, an employee's spouse, or an attorney
about how to draft a court order to award CSRS or
FERS benefits. This is the task of the attorneys
involved. The requirements that must be satisfied
for OPM to honor a court order are set out in the
law and regulations provided in this publication.
The regulations contain two appendices that
provides model language recommended for use in
court orders. An agency's efforts to advise
individuals in legal matters involving domestic
disputes can, despite good intentions, harm more
than help.
It is not appropriate for agency personnel to
attempt a "present value" computation of an
employee's future benefits. Also, agencies should
not attempt to determine the proper division of
benefits between the employee and spouse.
Present value computations should be prepared by
a qualified private actuary. Such computations of
the total actuarial value of retirement benefits
require application of various economic and
7
Retirement
mortality assumptions, and are beyond the scope of
an employing agency's or OPM's responsibility.
8
CSRS Statutory Provisions
Section 8346(a) of title 5, United States Code, exempts CSRS benefits from most State court
proceedings. It provides:
§ 8346. Exemption from
legal process; recovery of
payments
§ 8346. Exemption from legal process; recovery of payments
(a) The money mentioned by this subchapter is not assignable,
either in law or equity, except under the provisions of subsection (h)
and (j) of section 8345 of this title, or subject to execution, levy,
attachment, garnishment, or other legal process, except as otherwise
may be provided by Federal laws.
* * * * *
CSRS Statutory Provisions
Section 8345(j) of title 5, United States Code, permits State courts to award a former spouse certain
CSRS benefits. Only benefits that would otherwise be payable to the employee and that are based on the
employee's service may be awarded under this provision. Section 8345(j) provides:
§ 8345. Payment of § 8345. Payment of benefits; commencement, termination, and
benefits; commencement, waiver of annuity
termination, and waiver of
annuity
* * * * *
(j)(1) Payments under this subchapter which would otherwise
be made to an employee, Member, or annuitant based upon his
service shall be paid (in whole or in part) by the Office to another
person if and to the extent expressly provided for in the terms of any
court decree of divorce, annulment, or legal separation, or the terms
of any court order or court-approved property settlement agreement
incident to any court decree of divorce, annulment, or legal
separation. Any payment under this paragraph to a person bars
recovery by any other person.
(2) Paragraph (1) shall only apply to payments made
by the Office under this subchapter after the date of
receipt in the Office of written notice of such decree,
order, or agreement, and such additional information
and documentation as the Office may prescribe.
(3) As used in this subsection, "court" means any
court of any State, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, the Northern
Mariana Islands, or the Virgin Islands, and any Indian
court.
10
CSRS Statutory Provisions
Section 8341(h) of title 5, United States Code, permits State courts to award a former spouse
entitlement to a survivor annuity in the event that the employee predeceases the former spouse. Special
attention should be given to the restriction on modifications provided in paragraph (h)(4). Section 8341(h)
provides:
§ 8341. Survivor annuities § 8341. Survivor annuities
* * * * *
(h)(1) Subject to paragraphs (2) through (5) of this subsection, a
former spouse of a deceased employee, Member, annuitant, or
former Member who was separated from the service with title to a
deferred annuity under section 8338(b) of this title is entitled to a
survivor annuity under this subsection, if and to the extent expressly
provided for in an election under section 8339(j)(3) of this title, or
in the terms of any decree of divorce or annulment or any court
order or court-approved property settlement agreement incident to
such decree.
(2)(A) The annuity payable to a former spouse under this
subsection may not exceed the difference between--
(i) the amount applicable in the case of such former spouse,
as determined under subparagraph (B) of this paragraph, and
(ii) the amount of any annuity payable under this subsection to
any other former spouse of the employee, Member, or annuitant,
based on an election previously made under section 8339(j)(3) of
this title, or a court order previously issued.
(B) The applicable amount, for purposes of subparagraph(A)(i)
of this paragraph in the case of a former spouse, is the amount
which would be applicable--
(i) under subsection (b)(4)(A) of this section in the case of a
widow or widower, if the deceased was an employee or Member
who died after retirement;
(ii) under subparagraph(A) of subsection (d) of this section in
the case of a widow or widower, if the deceased was an
employee or Member described in this first sentence of such
subsection; or
(iii) under subparagraph(A) of subsection (f) of this section in
the case of a surviving spouse, if the deceased was a Member
described in the first sentence of such subsection.
11
CSRS Statutory Provisions
(3) The commencement and termination of an annuity payable
under this subsection shall be governed by the terms of the
applicable order, decree, agreement, or election, as the case may
be, except that any such annuity--
(A) shall not commence before--
(i) the day after the employee, Member, or annuitant dies,
or
(ii) the first day of the second month beginning after the
date on which the Office received written notice of the order,
decree, agreement, or election, as the case may be, together
with such additional information or documentation as the
Office may prescribe,
whichever is later, and
(B) shall terminate--
(i) in the case of an annuity computed by reference to
clause (i) or (ii) of paragraph (2)(B) of this subsection, no
later than the last day of the month before the former spouse
remarries before becoming 55 years of age or dies; or
(ii) in the case of an annuity computed by reference to
clause (iii) of such paragraph, no later than the last day of the
month before the former spouse remarries or dies.
(4) For purposes of this subchapter, a modification in a decree,
order, agreement, or election referred to in paragraph (1) of this
subsection shall not be effective--
(A) if such modification is made after the retirement or death
of the employee or Member concerned, and
(B) to the extent that such modification involves an annuity
under this subsection.
(5) For purposes of this subchapter, a decree, order, agreement,
or election referred to in paragraph (1) of this subsection shall not
be effective, in the case of a former spouse, to the extent that it is
inconsistent with any joint designation or waiver previously executed
with respect to such former spouse under section 8339(j)(1) of this
title or a similar prior provision of law.
12
CSRS Statutory Provisions
(6) Any payment under this subsection to a person bars recovery
by any other person.
(7) As used in this subsection, "court" means any court of any
State, the District of Columbia, and Commonwealth of Puerto Rico,
Guam, the Northern Mariana Islands, or the Virgin Islands, and any
Indian court.
13
CSRS Statutory Provisions
Section 8342(j)(1)(B) of title 5, United States Code, permits State courts to block payments of
refunds of employee contributions but only if a former spouse has been awarded a portion of the employee
annuity or a survivor annuity. Section 8342(j)(1)(B) provides:
§ 8342. Lump-sum
benefits; designation of
beneficiary; order of
precedence
§ 8342. Lump-sum benefits; designation of beneficiary; order of
precedence
* * * * *
(j)(1) Payment of the lump-sum credit under subsection (a) of
this section--
* * * * *
(B) shall be subject to the terms of a court decree of divorce,
annulment, or legal separation or any court order or court
approved property settlement agreement incident to such decree
if--
(i) the decree, order, or agreement expressly relates to
any portion of the lump-sum credit involved; and
(ii) payment of the lump-sum credit would extinguish
entitlement of the employee's or Member's spouse or former
spouse to a survivor annuity under section 8341(h) of this title
or to any portion of an annuity under section 8345(j) of this
title.
* * * * *
14
FERS Statutory Provisions
FERS Statutory Provisions
Section 8470(a) of title 5, United States Code, exempts FERS benefits from most State court
proceedings. It provides:
§ 8470. Exemption from
legal process; recovery of
payments
§ 8470. Exemption from legal process; recovery of payments
(a) An amount payable under subchapter II, IV, and V of this
chapter is not assignable, either in law or equity, except under the
provisions of section 8465 or 8467, or subject to execution, levy,
attachment, garnishment or other legal process, except as otherwise
may be provided by Federal laws.
* * * * *
Section 8467 of title 5, United States Code, permits State courts to award a former spouse certain
FERS benefits. Only benefits that would otherwise be payable to the employee and that are based on the
employee's service may be awarded under this provision. Section 8467 provides:
§ 8467. Court orders § 8467. Court orders
(a) Payments under this chapter which would otherwise be made
to an employee, Member, or annuitant (including an employee,
Member, or annuitant as defined under section 8331) based on the
service of that individual shall be paid (in whole or in part) by the
Office or the Executive Director (as the case may be), to another
person if and to the extent that the terms of any court decree of
divorce, annulment, or legal separation, or the terms of any court
order or court-approved property settlement agreement incident to
any court decree of divorce, annulment, or legal separation
expressly provide. Any payment under this subsection to a person
bars recovery by any other person.
(b) Subsection (a) shall apply only to payments made by the
Office or the Executive Director under this chapter after the date on
which the Office or the Executive Director (as the case may be)
receives written notice of such decree, order, or agreement, and
such additional information and documentation as the Office or the
Executive Director may require.
15
FERS Statutory Provisions
Section 8445 of title 5, United States Code, permits State courts to award a former spouse entitlement
to a survivor annuity in the event that the employee predeceases the former spouse. Special attention
should be given to the restriction on modifications provided in paragraph (d). Section 8445 provides:
§ 8445. Rights of a former § 8445. Rights of a former spouse
spouse
(a) Subject to subsections (b) through (e), a former spouse of a
deceased employee, Member, or annuitant (or of a former employee
or Member who dies after having separated from the service with
title to a deferred annuity under section 8413 but before having
established a valid claim for annuity) is entitled to an annuity under
this section, if and to the extent expressly provided for in an election
under section 8417(b), or in the terms of any decree of divorce or
annulment or any court order or court-approved property settlement
agreement incident to such decree.
(b)(1) The annuity payable to a former spouse under this section
may not exceed the difference between--
(A) the amount applicable in the case of such former spouse,
as determined under paragraph (2); and
(B) the amount of any annuity payable under this section to
any other former spouse of the employee, Member, or annuitant,
or former employee or Member, based on an election previously
made under section 8417(b), or a court order previously issued
or agreement previously entered into as described in subsection
(a).
(2) The applicable amount, for purposes of paragraph (1)(A) in
the case of a former spouse, is the amount of the annuity which
would be payable under the provisions of section 8442 (including
subsection (f) of such section, but without regard to subsection (h) of
such section) if such former spouse were a widow or widower
entitled to an annuity under such provisions based on the service of
the deceased employee, Member, or annuitant, or former employee
or Member.
(c) The commencement and termination of an annuity payable
under this section shall be governed by the terms of the applicable
order, decree, agreement, or election, as the case may be, except
that any such annuity--
16
FERS Statutory Provisions
(1) shall not commence before--
(A) the day after the employee, Member, or annuitant, or
former employee or Member, dies; or
(B) the first day of the second month beginning after the
date on which the Office received written notice of the order,
decree, agreement, or election as the case may be together
with such additional information or documentation as the
Office may prescribe;
whichever is later, and
(2) shall terminate no later than the last day of the month
before the former spouse remarries before becoming 55 years of
age or dies.
(d) For purposes of this chapter, a modification in a decree,
order, agreement, or election referred to in subsection (a) shall not
be effective--
(1) if such modification is made after the retirement or death
of the employee, Member, or annuitant, or former employee or
Member, concerned; and
(2) to the extent that such modification involves an annuity
under this section.
(e) For purposes of this chapter, a decree, order, agreement, or
election referred to in subsection (a) shall not be effective, in the
case of a former spouse, to the extent that it is inconsistent with any
joint waiver previously executed with respect to such former spouse
under section 8416(a).
(f)(1) Any amount under section 8442(b)(1)(A) which would
otherwise be payable to a widow or widower based on the service of
another individual shall be paid (in whole or in part) by the Office to
a former spouse of such individual if and to the extent expressly
provided for in the terms of a court decree of divorce, annulment,
or legal separation, or the terms of a court order or court-approved
property settlement incident to any decree of divorce, annulment, or
legal separation.
17
FERS Statutory Provisions
(2) Paragraph (1) shall apply only to payments made by the
Office after the date of receipt in the Office of written notice of such
decree, order, or agreement, and such additional information and
documentation as the Office may prescribe.
(g) Any payment under this section to a person bars recovery by
any other person.
18
FERS Statutory Provisions
Section 8401(7) defines the term "court" as that term is used in FERS. It provides:
§ 8401. Definitions § 8401. Definitions
* * * * *
(7) [T]he term "court" means any court of any State, the District
of Columbia, the Commonwealth of Puerto Rico, Guam, the
Northern Mariana Islands, or the Virgin Islands, and any Indian
court[.]
* * * * *
Section 8424(b)(1)(B) of title 5, United States Code, permits State courts to block payments of
refunds of employee contributions but only if a former spouse has been awarded a portion of the employee
annuity or a survivor annuity. Section 8424(b)(1)(B) provides:
§ 8424. Lump-sum
Benefits; designation of
beneficiary; order of
precedence
§ 8424. Lump-sum Benefits; designation of beneficiary; order of
precedence
* * * * *
(b)(1) Payment of the lump-sum credit under subsection (a)--
* * * * *
(B) in any case in which there is a former spouse, shall be
subject to the terms of a court decree of divorce, annulment, or
legal separation issued with respect to such former spouse if--
(i) the decree expressly relates to any portion of the lump-
sum credit involved; and
(ii) payment of the lump-sum credit would affect any right
or interest of the former spouse with respect to a survivor
annuity under section 8445, or to any portion of an annuity
under section 8467.
19
How the Regulations Are Organized
Subpart A of the regulations contains
definitions and other material of significance to all
types of court orders affecting CSRS or FERS.
The rest of the regulations are divided into three
major units depending on whether the court order
applies to employee annuities, refunds of employee
contributions, or former spouse survivor annuities.
For each unit, separate subparts cover procedures
for processing, requirements that court orders must
satisfy, and definitions of terms frequently used in
court orders. (The terminology section for
employee annuities and refunds of employee
contributions are combined to avoid excessive
duplication.)
The subparts (B, D and G) regulating
procedures contain rules relating to former spouse
filing requirements and to our actions upon receipt
of court orders. In addition, they contain rules and
limitations that the State court cannot change such
as when benefits are paid. The subparts (C, E,
and H) regulating requirements that court orders
must satisfy contain rules pertaining to the
requirements that a court order must meet to be
acceptable for processing. The subparts (F and I)
defining terms explain our understanding of the
meaning of terms commonly used in court orders.
By choosing the correct term, the State court can
tell us exactly what to do. We assume that State
courts are familiar with our assigned meanings of
these terms and have used them in the way that
they are defined in these subparts.
Paragraphs (b) through (i) of section 838.102
contain cross references to other regulations
concerning court orders or former spouse benefits.
This information may assist in identifying areas in
which research may be necessary.
Retirement Regulations
Table of Contents
PART 838--COURT
ORDERS AFFECTING
RETIREMENT BENEFITS
PART 838--COURT ORDERS AFFECTING RETIREMENT BENEFITS
Subpart A--Court Orders
Generally
Subpart A--Court Orders Generally
ORGANIZATION AND STRUCTURE OF REGULATIONS ON
COURT ORDERS
Sec.
838.101 Purpose and scope.
838.102 Regulatory structure.
838.103 Definitions.
STATUTORY LIMIT ON COURT'S AUTHORITY
838.111 Exemption from legal process except as authorized by Federal
law.
DIVISION OF RESPONSIBILITIES
838.121 OPM's responsibilities.
838.122 State courts' responsibilities.
838.123 Claimants' responsibilities.
838.124 Employees' and retirees' responsibilities.
PROCEDURES APPLICABLE TO ALL COURT ORDERS
838.131 Computation of time.
838.132 Payment schedules.
838.133 Minimum awards.
838.134 Receipt of multiple court orders.
838.135 Settlements.
838.136 Administrative appeal rights.
ADDRESS FOR FILING COURT ORDERS WITH OPM
Appendix A to Subpart A of Part 838--Addresses for Serving Court
Orders Affecting CSRS or FERS Benefits.
21
Retirement Regulations
Table of Contents
Subpart B--Procedures
for Processing Court
Orders Affecting
Employee Annuities
Subpart B--Procedures for Processing Court Orders Affecting
Employee Annuities
REGULATORY STRUCTURE
838.201 Purpose and scope.
AVAILABILITY OF FUNDS
838.211 Amounts subject to court orders.
APPLICATION AND PROCESSING PROCEDURES
838.221 Application requirements.
838.222 OPM action on receipt of a court order acceptable for
processing.
838.223 OPM action on receipt of a court order not acceptable for
processing.
838.224 Contesting the validity of court orders.
838.225 Processing amended court orders.
PAYMENT PROCEDURES
838.231 Commencing date of payments.
838.232 Suspension of payments.
838.233 Termination of payments.
838.234 Collection of arrearage.
838.235 Payment of lump-sum awards.
838.236 Court orders barring payment of annuities.
838.237 Death of the former spouse.
PROCEDURES FOR COMPUTING THE AMOUNT PAYABLE
838.241 Cost-of-living adjustments.
838.242 Computing lengths of service.
838.243 Minimum amount of awards.
Subpart C--
Requirements for Court
Orders Affecting
Employee Annuities
Subpart C--Requirements for Court Orders Affecting Employee
Annuities
838.301 Purpose and scope.
838.302 Language not acceptable for processing.
838.303 Expressly dividing employee annuity.
838.304 Providing for payment to the former spouse.
22
Retirement Regulations
Table of Contents
Subpart D--Procedures
for Processing Court
Orders Affecting Refunds
of Employee
Contributions
Subpart E--
Requirements for Court
Orders Affecting Refunds
of Employee
Contributions
838.305 OPM computation of formulas.
838.306 Specifying type of annuity for application of formula,
percentage or fraction.
Subpart D--Procedures for Processing Court Orders Affecting
Refunds of Employee Contributions
REGULATORY STRUCTURE
838.401 Purpose and scope.
AVAILABILITY OF FUNDS
838.411 Amounts subject to court orders.
APPLICATION AND PROCESSING PROCEDURES
838.421 Application requirements.
838.422 Timeliness of application.
838.423 OPM action on receipt of a court order acceptable for
processing.
838.424 OPM action on receipt of a court order not acceptable for
processing.
838.425 Contesting the validity of court orders.
PAYMENT PROCEDURES
838.431 Correcting failures to provide required spousal notification.
838.432 Court orders barring payment of refunds.
PROCEDURES FOR COMPUTING THE AMOUNT PAYABLE
838.441 Computing lengths of service.
Subpart E--Requirements for Court Orders Affecting Refunds of
Employee Contributions
838.501 Purpose and scope.
838.502 Expressly dividing a refund of employee contributions.
838.503 Providing for payment to the former spouse.
838.504 OPM computation of formulas.
838.505 Barring payment of refunds.
23
Retirement Regulations
Table of Contents
Subpart F--Terminology
Used in Court Orders
Affecting Employee
Annuities or Refunds of
Subpart F--Terminology Used in Court Orders Affecting Employee
Annuities or Refunds of Employee Contributions
REGULATORY STRUCTURE
Employee Contributions
838.601 Purpose and scope.
IDENTIFICATION OF BENEFITS
838.611 Identifying the retirement system.
838.612 Distinguishing between annuities and contributions.
COMPUTATION OF BENEFITS
838.621 Prorata share.
838.622 Cost-of-living and salary adjustments.
838.623 Computing lengths of service.
838.624 Distinguishing between formulas and fixed amounts.
838.625 Types of annuity.
MODEL PARAGRAPHS
Appendix A to Subpart F of Part 838--Recommended Language for Court
Orders Dividing Employee Annuities.
Subpart G--Procedures
for Processing Court
Orders Awarding Former
Spouse Survivor
Annuities
Subpart G--Procedures for Processing Court Orders Awarding
Former Spouse Survivor Annuities
REGULATORY STRUCTURE
838.701 Purpose and scope.
LIMITATIONS ON SURVIVOR ANNUITIES
838.711 Maximum former spouse survivor annuity.
APPLICATION AND PROCESSING PROCEDURES
838.721 Application requirements.
838.722 OPM action on receipt of a court order acceptable for
processing.
838.723 OPM action on receipt of a court order not acceptable for
processing.
838.724 Contesting the validity of court orders.
838.725 Effect on employee and retiree election rights.
24
Retirement Regulations
Table of Contents
Subpart H--
Requirements for Court
Orders Awarding Former
Spouse Survivor
Annuities
Subpart I--Terminology
Used in Court Orders
Awarding Former Spouse
Survivor Annuities
PAYMENT PROCEDURES
838.731 Commencing date of payments.
838.732 Termination of entitlement.
838.733 Rights of current and other former spouses after termination of
a former spouse's entitlement.
838.734 Payment of lump-sum awards by survivor annuity.
838.735 Cost-of-living adjustments.
Subpart H--Requirements for Court Orders Awarding Former
Spouse Survivor Annuities
838.801 Purpose and scope.
838.802 CSRS limitations.
838.803 Language not acceptable for processing.
838.804 Court orders must expressly award a former spouse survivor
annuity or expressly direct an employee or retiree to elect to provide
a former spouse survivor annuity.
838.805 OPM computation of formulas in computing the designated
base.
838.806 Amended court orders.
838.807 Cost must be paid by annuity reduction.
Subpart I--Terminology Used in Court Orders Awarding Former
Spouse Survivor Annuities
REGULATORY STRUCTURE
838.901 Purpose and scope.
IDENTIFICATION OF BENEFITS
838.911 Identifying the retirement system.
838.912 Specifying an award of a former spouse survivor annuity.
COMPUTATION OF BENEFIT
838.921 Determining the amount of a former spouse survivor annuity.
838.922 Prorata share defined.
838.923 Cost-of-living adjustment before the death of a retiree.
25
Retirement Regulations
Table of Contents
MISCELLANEOUS PROVISIONS
838.931 Court orders that provide temporary awards of former spouse
survivor annuities.
838.932 Court orders that permit the former spouse to elect to receive a
former spouse survivor annuity.
838.933 Payment of the cost of a former spouse survivor annuity.
MODEL PARAGRAPHS
Appendix A to Subpart I of Part 838--Recommended Language for Court
Orders Awarding Former Spouse Survivor Annuities.
Subpart J--Court Orders
Received Before
January 1, 1993
Subpart J--Court Orders Received Before January 1, 1993
[Omitted.]
Authority: 5 U.S.C. 8347(a) and 8461(g). Subparts B, C, D, E,
and J also issued under 5 U.S.C. 8345(j)(2) and
8467(b). Sections 838.221, 838.422, and 838.721 also
issued under 5 U.S.C. 8347(b).
26
Retirement Regulations
Court Orders Generally
Subpart A--Court Orders
Generally
Subpart A--Court Orders Generally
ORGANIZATION AND ORGANIZATION AND STRUCTURE OF REGULATIONS ON
STRUCTURE OF COURT ORDERS
REGULATIONS ON
COURT ORDERS
§ 838.101 Purpose and § 838.101 Purpose and scope.
scope.
(a)(1) This part regulates the Office of Personnel Management's
handling of court orders affecting the Civil Service Retirement System
(CSRS) or the Federal Employees Retirement System (FERS), both of
which are administered by the Office of Personnel Management (OPM).
Generally, OPM must comply with court orders, decrees, or
court-approved property settlement agreements in connection with
divorces, annulments of marriage, or legal separations of employees,
Members, or retirees that award a portion of the former employee's or
Member's retirement benefits or a survivor annuity to a former spouse.
(2) In executing court orders under this part, OPM must honor the
clear instructions of the court. Instructions must be specific and
unambiguous. OPM will not supply missing provisions, interpret
ambiguous language, or clarify the court's intent by researching
individual State laws. In carrying out the court's instructions, OPM
performs purely ministerial actions in accordance with these regulations.
Disagreement between the parties concerning the validity or the
provisions of any court order must be resolved by the court.
(b) This part prescribes--
(1) The requirements that a court order must meet to be acceptable
for processing under this part;
(2) The procedures that a former spouse must follow when applying
for benefits based on a court order under sections 8341(h), 8345(j), 8445
or 8467 of title 5, United States Code;
(3) The procedures that OPM will follow in honoring court orders
and in making payments to the former spouse; and
(4) The effect of certain words and phrases commonly used in court
orders affecting retirement benefits.
(c)(1) Subparts A through I of this part apply only to court orders
received by OPM on or after January 1, 1993.
27
Retirement Regulations
Court Orders Generally
§ 838.102 Regulatory
structure.
(2) Subpart J of this part applies only to court orders received by
OPM before January 1, 1993.
(d) This part has no application to the Thrift Savings Plan described
in subchapter III of chapter 84 of title 5, United States Code.
S)))))))))))))))))))))))))))
§ 838.102 Regulatory structure.
(a) This part is organized as follows:
(1) Subpart A contains information and rules of general application
to all court orders directed at CSRS or FERS retirement benefits.
(2) Subparts B and C of this part contain information about court
orders directed at ongoing employee annuity payments.
(3) Subparts D and E of this part contain information about court
orders directed at refunds of employee contributions.
(4) Subpart F of this part contains information about the effect of
words and phrases commonly used in court orders affecting ongoing
employee annuity payments and refunds of employee contributions.
(5) Subparts G, H, and I of this part contain information about court
orders awarding former spouse survivor annuities.
(6) Subpart J of this part contains the rules applicable to court orders
filed under procedures in effect prior to the implementation of this part.
These rules continue to apply to court orders received by OPM before
January 1, 1993.
(b) Part 890 of this chapter contains information about coverage
under the Federal Employees Health Benefits Program.
(c) Part 581 of this chapter contains information about garnishment
of Government payments including salary and CSRS and FERS
retirement benefits.
(d) Parts 294 and 297 of this chapter and sections 831.106 and
841.108 contain information about disclosure of information from OPM
records.
(e) Subpart V of part 831 of this chapter and subpart G of part 842
of this chapter contain information about how court orders affect
eligibility to make an alternative form of annuity election.
28
Retirement Regulations
Court Orders Generally
(f) Part 1600 of this title contains information about court orders
affecting the Federal Employees Thrift Savings Plan.
(g) Subpart F of part 831 of this chapter, subpart F of part 841 of
this chapter, and part 843 of this chapter contain information about
entitlement to survivor annuities.
(h) Subpart T of part 831 of this chapter and subpart B of part 843
of this chapter contain information about refunds of employee
contributions and lump-sum death benefits.
(i) Parts 870, 871, 872, and 873 of this chapter contain information
about the Federal Employees Group Life Insurance Program.
S))))))))))))))))))))))))))))
§ 838.103 Definitions. § 838.103 Definitions.
In this part (except subpart J)--
Civil Service Retirement
System
"Civil Service Retirement System" or "CSRS" means the retirement
system for Federal employees described in subchapter III of chapter 83 of
title 5, United States Code.
Court order "Court order" means any judgment or property settlement issued by
or approved by any court of any State, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, The Northern Mariana Islands, or
the Virgin Islands, or any Indian court in connection with, or incident to,
the divorce, annulment of marriage, or legal separation of a Federal
employee or retiree.
Court order acceptable for
processing
"Court order acceptable for processing" means a court order as
defined in this section that meets the requirements of subpart C of this
part to affect an employee annuity, subpart E of this part to affect a
refund of employee contributions, or subpart H of this part to award a
former spouse survivor annuity.
Employee "Employee" means an employee or Member covered by CSRS or
FERS.
Employee annuity "Employee annuity" means the recurring payments under CSRS or
FERS made to a retiree. "Employee annuity" does not include payments
of accrued and unpaid annuity after the death of a retiree under section
8342(g) or section 8424(h) of title 5, United States Code.
ERISA "ERISA" means the Employees Retirement Income Security Act,
29 U.S.C. 1001 et seq.
29
Retirement Regulations
Court Orders Generally
Federal Employees
Retirement System or
FERS
"Federal Employees Retirement System" or "FERS" means the
retirement system for Federal employees described in chapter 84 of title
5, United States Code.
Former spouse "Former spouse" means (1) in connection with a court order
affecting an employee annuity or a refund of employee contributions, a
living person whose marriage to an employee has been subject to a
divorce, annulment of marriage, or legal separation resulting in a court
order, or (2) in connection with a court order awarding a former spouse
survivor annuity, a living person who was married for at least 9 months to
an employee or retiree who performed at least 18 months of civilian
service covered by CSRS or who performed at least 18 months of civilian
service creditable under FERS, and whose marriage to the employee or
retiree was terminated prior to the death of the employee or retiree.
Former spouse survivor
annuity
"Former spouse survivor annuity" means a recurring benefit under
CSRS or FERS, or the basic employee death benefit under FERS as
described in part 843 of this chapter, that is payable to a former spouse
after the employee's or retiree's death.
Gross annuity "Gross annuity" means the amount of monthly annuity payable after
reducing the self-only annuity to provide survivor annuity benefits, if any,
but before any other deduction. Unless the court order expressly provides
otherwise, "gross annuity" also includes any lump-sum payments made to
the retiree under section 8343a or section 8420a of title 5, United States
Code.
Member "Member" means a Member of Congress covered by CSRS or
FERS.
Net annuity "Net annuity" means the amount of monthly annuity payable after
deducting from the gross annuity any amounts that are (1) owed by the
retiree to the United States, (2) deducted for health benefits premiums
under section 8906 of title 5, United States Code, and §§ 891.401 and
891.402 of this chapter, (3) deducted for life insurance premiums under
section 8714a(d) of title 5, United States Code, (4) deducted for Medicare
premiums, (5) properly withheld for Federal income tax purposes, if the
amounts withheld are not greater than they would be if the retiree claimed
all dependents to which he or she was entitled, or (6) properly withheld
for State income tax purposes, if the amounts withheld are not greater
than they would be if the retiree claimed all dependents to which he or
she was entitled. Unless the court order expressly provides otherwise,
"net annuity" also includes any lump-sum payments made to the retiree
under section 8343a or section 8420a of title 5, United States Code.
30
Retirement Regulations
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Reduction to provide "Reduction to provide survivor benefits" means the reduction
survivor benefits required by section 8339(j)(4) or section 8419(a) of title 5, United States
Code.
Refund of employee "Refund of employee contributions" means a payment of the
contributions lump-sum credit to a separated employee under section 8342(a) or section
8424(a) of title 5, United States Code. "Refund of employee
contributions" does not include lump-sum payments made under section
8342(c) through (f) or section 8424(d) through (g) of title 5, United States
Code. "Retiree" means a former employee or Member who is receiving
recurring payments under CSRS or FERS based on his or her service as
an employee. "Retiree" does not include a person receiving an annuity
only as a current spouse, former spouse, child, or person with an
insurable interest. "Self-only annuity" means the recurring payments to a
retiree who has elected not to provide a survivor annuity to anyone.
Unless the court order expressly provides otherwise, "self-only annuity"
also includes any lump-sum payments made to the retiree under section
8343a or section 8420a of title 5, United States Code.
Separated employee "Separated employee" means a former employee or Member who
has separated from a position in the Federal Government covered by
CSRS and FERS under subpart B of part 831 of this chapter or subpart A
of part 842 of this chapter, respectively, and is not currently employed in
such a position, and who is not a retiree.
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STATUTORY LIMIT ON STATUTORY LIMIT ON COURT'S AUTHORITY
COURT'S AUTHORITY
§ 838.111 Exemption § 838.111 Exemption from legal process except as authorized by
from legal process except Federal law.
as authorized by Federal
law.
(a) Employees, retirees, and State courts may not assign CSRS and
FERS benefits except as provided in this part.
(b) CSRS and FERS benefits are not subject to execution, levy,
attachment, garnishment or other legal process except as expressly
provided by Federal law.
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31
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DIVISION OF DIVISION OF RESPONSIBILITIES
RESPONSIBILITIES
§ 838.121 OPM's
responsibilities.
§ 838.121 OPM's responsibilities.
OPM is responsible for authorizing payments in accordance with
clear, specific and express provisions of court orders acceptable for
processing.
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§ 838.122 State courts'
responsibilities.
§ 838.122 State courts' responsibilities.
State courts are responsible for--
(a) Providing due process to the employee or retiree;
(b) Issuing clear, specific, and express instructions consistent with
the statutory provisions authorizing OPM to provide benefits to former
spouses and the requirements of this part for awarding such benefits;
(c) Using the terminology defined in this part only when it intends to
use the meaning given to that terminology by this part;
(d) Determining when court orders are invalid; and
(e) Settling all disputes between the employee or retiree and the
former spouse.
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§ 838.123 Claimants'
responsibilities.
§ 838.123 Claimants' responsibilities.
Claimants are responsible for--
(a) Filing a certified copy of court orders and all other required
supporting information with OPM;
(b) Keeping OPM advised of their current mailing addresses;
(c) Notifying OPM of any changes in circumstances that could affect
their entitlement to benefits; and
(d) Submitting all disputes with employees or retirees to the
appropriate State court for resolution.
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32
Retirement Regulations
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§ 838.124 Employees'
and retirees'
responsibilities.
§ 838.124 Employees' and retirees' responsibilities.
Employees and retirees are responsible for--
(a) Raising any objections to the validity of a court order in the
appropriate State court; and
(b) Submitting all disputes with former spouses to the appropriate
State court for resolution.
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PROCEDURES PROCEDURES APPLICABLE TO ALL COURT ORDERS
APPLICABLE TO ALL
COURT ORDERS
§ 838.131 Computation § 838.131 Computation of time.
of time.
(a) The rules applicable for computation of time under §§ 831.107
and 841.109 of this chapter apply to this part.
(b)(1) Appendix A of this subpart lists the proper addresses for
submitting court orders affecting CSRS and FERS benefits.
(2) A former spouse should submit the documentation required by
this part to the address provided in Appendix A of this subpart. The
component of OPM responsible for processing court orders will note the
date of receipt on court orders that it receives.
(3) If a court order is delivered to OPM at an address other than the
address in Appendix A of this subpart, the recipient will forward the court
order to the component of OPM responsible for processing court orders.
However, OPM is not considered to have received the court order until
the court order is received in the component of OPM responsible for
processing court orders.
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§ 838.132 Payment § 838.132 Payment schedules.
schedules.
(a) Under CSRS and FERS, employee annuities and survivor
annuities are payable on the first business day of the month following the
month in which the benefit accrues.
(b) In honoring and complying with a court order, OPM will not
disrupt the payment schedule described in paragraph (a) of this section,
despite any provision in the court order directing a different schedule of
accrual or payment of amounts due the former spouse.
33
Retirement Regulations
Court Orders Generally
§ 838.133 Minimum
awards.
§ 838.134 Receipt of
multiple court orders.
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§ 838.133 Minimum awards.
Payments under this part will not be less than one dollar per month.
Any court order that awards a former spouse a portion of an employee
annuity or a former spouse survivor annuity in an amount of less than one
dollar per month will be treated as an award of an annuity equal to one
dollar per month.
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§ 838.134 Receipt of multiple court orders.
(a) Except as provided in paragraph (c) of this section, for court
orders affecting employee annuities or awarding former spouse survivor
annuities, in the event that OPM receives two or more court orders
acceptable for processing--
(1) When the court orders affect two or more former spouses, the
court orders will be honored in the order in which they were issued to the
maximum extent possible under § 838.211 or § 838.711.
(2) When two or more court orders relate to the same former spouse
or separated spouse, the one issued last will be honored.
(b)(1) Except as provided in paragraph (c) of this section, for court
orders affecting refunds of employee contributions, in the event that OPM
receives two or more court orders acceptable for processing--
(i) When the court orders affect two or more former spouses--
(A) The refund will not be paid if either court order prohibits
payment of the refund of contributions; otherwise,
(B) The court orders will be honored in the order in which they
were issued until the contributions have been exhausted.
(ii) When two or more court orders relate to the same former
spouse, the one issued last will be honored first.
(2) In no event will the amount paid out exceed the amount of the
refund of employee contributions.
(c) With respect to issues relating to the validity of a court order or
to the amount of payment--
34
Retirement Regulations
Court Orders Generally
§ 838.135 Settlements.
§ 838.136 Administrative
appeal rights.
(1) If the employee, separated employee, retiree, or other person
adversely affected by the court order and former spouse submit
conflicting court orders from the same jurisdiction, OPM will consider
only the latest court order; or
(2) If the employee, separated employee, retiree, or other person
adversely affected by the court order and former spouse submit
conflicting court orders from different jurisdictions--
(i) If one of the court orders is from the jurisdiction shown as the
employee's, separated employee's, or retiree's address in OPM's
records, OPM will consider only the court order issued by that
jurisdiction; or
(ii) If none of the court orders is from the jurisdiction shown as the
employee's, separated employee's, or retiree's address in OPM's
records, OPM will consider only the latest court order.
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§ 838.135 Settlements.
(a) OPM must comply with the terms of a properly filed court order
acceptable for processing even if the retiree and the former spouse agree
that they want OPM to pay an amount different from the amount specified
in the court order. Information about OPM's processing of amended
court orders is contained in §§ 838.225 and 838.806.
(b)(1) OPM will not honor a request from the former spouse that an
amount less than the amount provided in the court order be withheld from
an employee annuity or a refund of employee contributions.
(2) OPM will not honor a request from the retiree that an amount
greater than the amount provided in the court order be withheld from an
employee annuity or a refund of employee contributions.
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§ 838.136 Administrative appeal rights.
(a) Issues concerning application of these regulations are not
appealable to the Merit Systems Protection Board. OPM's actions to
apply these regulations are not subject to further administrative review.
(b)(1) Issues concerning the validity of these regulations are
appealable to the Merit Systems Protection Board. Such an appeal must
be filed in accordance with the procedures established by the Board and
may not be filed before OPM has issued its final decision, including a
35
Retirement Regulations
Court Orders Generally
notice of the right to appeal, on the validity of the regulation. Such an
appeal is limited to the issue of the validity of the regulation.
(2) Any claim that a provision of these regulations is invalid, must
be presented to the Merit Systems Protection Board before the validity of
the regulation may be reviewed in the Federal courts.
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ADDRESS FOR FILING
COURT ORDERS WITH
OPM
ADDRESS FOR FILING COURT ORDERS WITH OPM
Appendix A to Subpart A
of Part 838--Addresses for
Serving Court Orders
Affecting CSRS or FERS
Benefits.
Appendix A to Subpart A of Part 838--Addresses for Serving Court
Orders Affecting CSRS or FERS Benefits.
(a) The mailing address for delivery of court orders affecting CSRS
or FERS benefits by the United States Postal Service is--
Office of Personnel Management
Retirement and Insurance Group
P.O. Box 17
Washington DC 20044-0017.
(b) The address for delivery of court orders affecting CSRS or
FERS benefits by process servers, express carriers, or other forms of
handcarried delivery is--
Court-ordered Benefits Section
Allotments Branch
Retirement and Insurance Group
Office of Personnel Management
1900 E Street, N.W.
Washington, DC.
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36
Retirement Regulations
Procedures for Processing Court Orders Affecting Employee Annuities
Subpart B--Procedures
for Processing Court
Orders Affecting
Employee Annuities
Subpart B--Procedures for Processing Court Orders Affecting
Employee Annuities
REGULATORY
STRUCTURE
REGULATORY STRUCTURE
§ 838.201 Purpose and
scope.
§ 838.201 Purpose and scope.
(a) This subpart regulates the procedures that the Office of
Personnel Management will follow upon the receipt of claims arising out
of State court orders directed at employee annuities under CSRS or
FERS. OPM must comply with qualifying court orders, decrees, or
court-approved property settlements in connection with divorces,
annulments of marriages, or legal separations of employees or retirees
that award a portion of an employee annuity to a former spouse.
(b) This subpart prescribes--
(1) The circumstances that must occur before employee annuities
are available to satisfy a court order acceptable for processing; and
(2) The procedures that a former spouse must follow when applying
for a portion of an employee annuity based on a court order under section
8345(j) or section 8467 of title 5, United States Code.
(c)(1) Subpart C of this part contains the rules that a court order
must satisfy to be a court order acceptable for processing to affect an
employee annuity.
(2) Subpart F of this part contains definitions that OPM uses to
determine the effect on employee annuity of a court order acceptable for
processing.
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AVAILABILITY OF AVAILABILITY OF FUNDS
FUNDS
§ 838.211 Amounts § 838.211 Amounts subject to court orders.
subject to court orders.
(a)(1) Employee annuities are subject to court orders acceptable for
processing only if all of the conditions necessary for payment of the
employee annuity to the former employee have been met, including, but
not limited to--
37
Retirement Regulations
Procedures for Processing Court Orders Affecting Employee Annuities
(i) Separation from a position in the Federal service covered by
CSRS or FERS under subpart B of part 831 of this chapter or subpart A
of part 842 of this chapter, respectively;
(ii) Application for payment of the employee annuity by the former
employee; and
(iii) The former employee's immediate entitlement to an employee
annuity.
(2) Money held by an employing agency or OPM that may be
payable at some future date is not available for payment under court
orders directed at employee annuities.
(3) OPM cannot pay a former spouse a portion of an employee
annuity before the employee annuity begins to accrue.
(b) Payment to a former spouse under a court order may not exceed
the net annuity.
(c) Waivers of employee annuity payments under the terms of
section 8345(d) or section 8465(a) of title 5, United States Code, exclude
the waived portion of the annuity from availability for payment under a
court order if such waivers are postmarked or received before the date
that OPM receives a court order acceptable for processing.
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APPLICATION AND
PROCESSING
PROCEDURES
APPLICATION AND PROCESSING PROCEDURES
§ 838.221 Application
requirements.
§ 838.221 Application requirements.
(a) A former spouse (personally or through a representative) must
apply in writing to be eligible for a court-awarded portion of an employee
annuity. No special form is required.
(b) The application letter must be accompanied by--
(l) A certified copy of the court order acceptable for processing that
is directed at employee annuity;
(2) A certification from the former spouse or the former spouse's
representative that the court order is currently in force and has not been
amended, superseded, or set aside;
38
Retirement Regulations
Procedures for Processing Court Orders Affecting Employee Annuities
(3) Information sufficient for OPM to identify the employee or
retiree, such as his or her full name, CSRS or FERS claim number, date
of birth, and social security number;
(4) The current mailing address of the former spouse; and
(5) If the employee has not retired under CSRS or FERS or died,
the mailing address of the employee.
(c)(1) When court-ordered payments are subject to termination
(under the terms of the court order) if the former spouse remarries, no
payment will be made until the former spouse submits to OPM a
statement in the form prescribed by OPM certifying--
(i) That a remarriage has not occurred;
(ii) That the former spouse will notify OPM within 15 calendar days
of the occurrence of any remarriage; and
(iii) That the former spouse will be personally liable for any
overpayment to him or her resulting from a remarriage.
(2) OPM may subsequently require periodic recertification of the
statements required under paragraph (c)(1) of this section.
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§ 838.222 OPM action on § 838.222 OPM action on receipt of a court order acceptable for
receipt of a court order processing.
acceptable for processing.
(a) If OPM receives a court order acceptable for processing that is
directed at an employee annuity that is in pay status, OPM will inform--
(1) The former spouse--
(i) That the court order is acceptable for processing;
(ii) Of the date on which OPM received the court order, the date on
which the former spouse's benefit begins to accrue, and if known, the
date on which OPM commences payment under the order;
(iii) Of the amount of the former spouse's monthly benefit and the
formula OPM used to compute the monthly benefit; and
(iv) That, if he or she disagrees with the amount of the monthly
benefits, he or she must obtain, and submit to OPM, an amended court
order clarifying the amount; and
39
Retirement Regulations
Procedures for Processing Court Orders Affecting Employee Annuities
(2) The retiree--
(i) That the former spouse has applied for benefits under this
subpart;
(ii) That the court order is acceptable for processing and that OPM
must comply with the court order;
(iii) Of the date on which OPM received the court order, the date on
which the former spouse's benefit begins to accrue, and if known, the
date on which OPM commences payment under the court order;
(iv) Of the amount of the former spouse's monthly benefit and the
formula OPM used to compute the monthly benefit;
(v) That, if he or she contests the validity of the court order, he or
she must obtain, and submit to OPM, a court order invalidating the court
order submitted by the former spouse; and
(vi) That, if he or she disagrees with the amount of the former
spouse's monthly benefits, he or she must obtain, and submit to OPM, an
amended court order clarifying the amount.
(b) If OPM receives a court order acceptable for processing that is
directed at an employee annuity but the employee has died, or if a retiree
dies after payments from an employee to a former spouse have begun,
OPM will inform the former spouse that the employee or retiree has died
and that OPM can only honor court orders dividing employee annuities
during the lifetime of the retiree.
(c) If OPM receives a court order acceptable for processing that is
directed at an employee annuity that is not in pay status, OPM will
inform--
(1) The former spouse--
(i) That the court order is acceptable for processing;
(ii) That benefits cannot begin to accrue until the employee retires;
(iii) To the extent possible, the formula that OPM will use to
compute the former spouse's monthly benefit; and
(iv) That, if he or she disagrees with the formula, he or she must
obtain, and submit to OPM, an amended court order clarifying the
amount; and
40
Retirement Regulations
Procedures for Processing Court Orders Affecting Employee Annuities
§ 838.223 OPM action on
receipt of a court order
not acceptable for
processing.
(2) The employee, separated employee, or retiree--
(i) That the former spouse has applied for benefits under this
subpart;
(ii) That the court order is acceptable for processing and that OPM
must comply with the court order;
(iii) To the extent possible, the formula that OPM will use to
compute the former spouse's monthly benefit;
(iv) That, if he or she contests the validity of the court order, he or
she must obtain, and submit to OPM, a court order invalidating the court
order submitted by the former spouse; and
(v) That, if he or she disagrees with the amount of the former
spouse's monthly benefits, he or she must obtain, and submit to OPM, an
amended court order clarifying the amount.
(d) The failure of OPM to provide, or of the employee, separated
employee, or retiree or the former spouse to receive, the information
specified in this section prior to the commencing date of a reduction or
accrual does not affect--
(1) The validity of payment under the court order; or
(2) The commencing date of the reduction in the employee annuity
or the commencing date of the accrual of former spouse benefits as
determined under § 838.231.
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§ 838.223 OPM action on receipt of a court order not acceptable for
processing.
If OPM receives an application from a former spouse not based on a
court order acceptable for processing, OPM will inform the former
spouse that OPM cannot approve the application and provide the specific
reason(s) for disapproving the application. Examples of reasons for
disapproving an application include that the court order does not meet the
definition of court order in § 838.103 or does not meet one or more of the
requirements of subpart C of this part.
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41
Retirement Regulations
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§ 838.224 Contesting the
validity of court orders.
§ 838.224 Contesting the validity of court orders.
(a) An employee, separated employee, or retiree who alleges that a
court order is invalid must prove the invalidity of the court order by
submitting a court order that--
(1) Declares the court order submitted by the former spouse is
invalid; or
(2) Sets aside the court order submitted by the former spouse.
(b) OPM must honor a court order acceptable for processing that
appears to be valid and that the former spouse has certified is currently in
force and has not been amended, superseded, or set aside, until OPM
receives a court order described in paragraph (a) of this section or a court
order amending or superseding the court order submitted by the former
spouse.
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§ 838.225 Processing
amended court orders.
§ 838.225 Processing amended court orders.
(a) If the employee, separated employee, retiree, or former spouse
submits an amended court order pertaining to payment of a portion of the
employee annuity, OPM will process the amended court order
prospectively only, effective against employee annuity accruing beginning
the first day of the second month after OPM receives the amended court
order.
(b) A court order is not effective to adjust payments prior to the first
day of the second month after OPM receives the court order unless--
(1) The court order--
(i) Expressly directs OPM to adjust for payment made under the
prior court order; and
(ii) Determines the total amount of the adjustment or the length of
time over which OPM will make the adjustment; and
(iii) Provides a specific monthly amount of the adjustment or a
formula to compute the amount of the monthly adjustment; and
(2) Annuity continues to be available from which to make the
adjustment.
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42
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Procedures for Processing Court Orders Affecting Employee Annuities
PAYMENT
PROCEDURES
PAYMENT PROCEDURES
§ 838.231 Commencing
date of payments.
§ 838.231 Commencing date of payments.
(a) A court order acceptable for processing is effective against
employee annuity accruing beginning the first day of the second month
after OPM receives the court order.
(b)(1) OPM will not begin payments to the former spouse until
OPM receives all the documentation required by § 838.221(b) and (c).
(2) If payments are delayed under paragraph (b)(1) of this section,
after OPM receives all required documentation, it will authorize payment
of the annuity that has accrued since the date determined under paragraph
(a) of this section but the payment of which was delayed under paragraph
(b)(1) of this section.
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§ 838.232 Suspension of
payments.
§ 838.232 Suspension of payments.
(a) Payments from employee annuities under this part will be
discontinued whenever the employee annuity payments are suspended or
terminated. If employee annuity payments to the retiree are restored,
payments to the former spouse will also resume subject to the terms of
any court order acceptable for processing in effect at that time.
(b) Paragraph (a) of this section will not be applied to permit a
retiree to deprive a former spouse of payment by causing suspension of
payment of employee annuity.
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§ 838.233 Termination of
payments.
§ 838.233 Termination of payments.
A former spouse portion of an employee annuity stops accruing at
the earliest of--
(a) The date on which the terms of the court order require
termination;
(b)(1) The last day of the first month before OPM receives a court
order invalidating, vacating, or setting aside the court order submitted by
the former spouse if OPM receives the latest court order no later than 20
days before the end of the month; or
(2) The last day of the month in which OPM receives a court order
invalidating, vacating, or setting aside the court order submitted by the
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Retirement Regulations
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former spouse if OPM receives the latest court order later than 20 days
before the end of the month; or
(c) The last day of the first month after OPM receives an amended
court order;
(d) The last day of the first month before the death of the retiree; or
(e) Except as provided in § 838.237, the date on which the former
spouse dies.
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§ 838.234 Collection of § 838.234 Collection of arrearages.
arrearages.
Specific instructions are required before OPM may pay any
arrearage. Except as provided in § 838.225(b), OPM will not increase a
former spouse's share of employee annuity to satisfy an arrearage due the
former spouse. However, under § 838.225, OPM will prospectively
honor the terms of an amended court order that either increases or
decreases the former spouse's entitlement.
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§ 838.235 Payment of
lump-sum awards.
§ 838.235 Payment of lump-sum awards.
If a court order acceptable for processing awards a former spouse a
lump-sum amount from the employee annuity and does not state the
monthly rate at which OPM should pay the lump-sum, OPM will pay the
former spouse equal monthly installments at 50 percent of the gross
annuity (subject to the limitations under § 838.211) at the time of
retirement or the date of the order, whichever comes later, until the
lump-sum amount is paid.
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§ 838.236 Court orders
barring payment of
annuities.
§ 838.236 Court orders barring payment of annuities.
(a) State courts lack authority to prevent OPM from paying
employee annuities as required by section 8345(a) or section 8463 of title
5, United States Code. OPM will not honor court orders directing that
OPM delay or otherwise not pay employee annuities at the time or in the
amount required by statute.
(b) Except as otherwise provided in this subpart, OPM will honor
court orders acceptable for processing that direct OPM to pay the
employee annuity to the court, an officer of the court acting as a
fiduciary, or a State or local government agency during the pendency of a
divorce or legal separation proceeding.
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44
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§ 838.237 Death of the § 838.237 Death of the former spouse.
former spouse.
(a) Unless the court order acceptable for processing expressly
provides otherwise, the former spouse's share of an employee annuity
terminates on the last day of the month before the death of the former
spouse, and the former spouse's share of employee annuity reverts to the
retiree.
(b) Except as otherwise provided in this subpart, OPM will honor a
court order acceptable for processing or an amended court order
acceptable for processing that directs OPM to pay, after the death of the
former spouse, the former spouse's share of the employee annuity to--
(1) The court;
(2) An officer of the court acting as a fiduciary;
(3) The estate of the former spouse; or
(4) One or more of the retiree's children as defined in section
8341(a)(4) or section 8441(4) of title 5, United States Code.
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PROCEDURES FOR PROCEDURES FOR COMPUTING THE AMOUNT PAYABLE
COMPUTING THE
AMOUNT PAYABLE
§ 838.241 Cost-of-living § 838.241 Cost-of-living adjustments.
adjustments.
Unless otherwise provided in the court order, when the terms of the
court order or § 838.621 provide for cost-of-living adjustments on the
former spouse's payment from employee annuity, the cost-of-living
adjustment will be effected at the same time and at the same percentage
rate as the cost-of-living adjustment in the employee annuity.
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§ 838.242 Computing § 838.242 Computing lengths of service.
lengths of service.
(a)(1) The smallest unit of time that OPM will calculate in
computing a formula in a court order is a month, even where the court
order directs OPM to make a more precise calculation.
(2) If the court order states a formula using a specified simple or
decimal fraction other than twelfth parts of a year, OPM will use the
specified number to perform simple mathematical computations.
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Retirement Regulations
Procedures for Processing Court Orders Affecting Employee Annuities
(b) Unused sick leave is counted as "creditable service" on the date
of separation for an immediate CSRS annuity; it is not apportioned over
the time when earned. Unused sick leave is not countable as "creditable
service" in a FERS annuity (except in a CSRS component for an
employee who transferred to FERS) or in a deferred CSRS annuity.
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§ 838.243 Minimum § 838.243 Minimum amount of awards.
amount of awards.
OPM will treat any court order that awards a former spouse a
portion of an employee annuity equal to less than $12 per year as
awarding the former spouse $1 per month.
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46
Retirement Regulations
Requirements for Court Orders Affecting Employee Annuities
Subpart C--
Requirements for Court
Orders Affecting
Employee Annuities
§ 838.301 Purpose and
scope.
§ 838.302 Language not
acceptable for processing.
Qualifying Domestic
Relations Orders.
Subpart C--Requirements for Court Orders Affecting Employee
Annuities
§ 838.301 Purpose and scope.
This subpart regulates the requirements that a court order directed at
employee annuity must meet to be a court order acceptable for
processing.
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§ 838.302 Language not acceptable for processing.
(a) Qualifying Domestic Relations Orders. (1) Any court order
labeled as a "qualified domestic relations order" or issued on a form for
ERISA qualified domestic relations orders is not a court order acceptable
for processing unless the court order expressly states that the provisions
of the court order concerning CSRS or FERS benefits are governed by
this part.
(2) When a court order is required by paragraph (a)(1) of this
section to state that the provisions of a court order concerning CSRS or
FERS benefits are governed by this part the court order must expressly--
(i) Refer to part 838 of Title 5, Code of Federal Regulations, and
(ii) State that the provisions of the court order concerning CSRS or
FERS benefits are drafted in accordance with the terminology used in this
part.
(3) Although any language satisfying the requirements of paragraph
(a)(2) of this section is sufficient to prevent a court order from being
unacceptable under paragraph (a)(1) of this section, OPM recommends
the use of the language provided in ¶001 in appendix A to subpart F of
this part to state that the provisions of the court order concerning CSRS
or FERS benefits are governed by this part.
(4) A court order directed at employee annuity that contains the
language described in paragraph (a)(2) of this section must also satisfy all
other requirements of this subpart to be a court order acceptable for
processing.
(b) Benefits for the lifetime of the former spouse. Any court order
directed at employee annuity that expressly provides that the former
spouse's portion of the employee annuity may continue after the death of
Benefits for the lifetime of
the former spouse.
47
Retirement Regulations
Requirements for Court Orders Affecting Employee Annuities
§ 838.303 Expressly
dividing employee
annuity.
§ 838.304 Providing for
payment to the former
spouse.
the employee or retiree, such as a court order providing that the former
spouse's portion of the employee annuity will continue for the lifetime of
the former spouse, is not a court order acceptable for processing.
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§ 838.303 Expressly dividing employee annuity.
(a) A court order directed at employee annuity is not a court order
acceptable for processing unless it expressly divides the employee annuity
as provided in paragraph (b) of this section.
(b) To expressly divide employee annuity as required by paragraph
(a) of this section the court order must--
(1) Identify the retirement system using terms that are sufficient to
identify the retirement system as explained in § 838.611; and
(2) Expressly state that the former spouse is entitled to a portion of
the employee annuity using terms that are sufficient to identify the
employee annuity as explained in § 838.612.
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§ 838.304 Providing for payment to the former spouse.
(a) A court order directed at employee annuity is not a court order
acceptable for processing unless it provides for OPM to pay the former
spouse a portion of an employee annuity as provided in paragraph (b) of
this section.
(b) To provide for OPM to pay the former spouse a portion of an
employee annuity as required by paragraph (a) of this section the court
order must--
(1) Expressly direct OPM to pay the former spouse directly;
(2) Direct the retiree to arrange or to execute forms for OPM to pay
the former spouse directly; or
(3) Be silent concerning who is to pay the portion of the employee
annuity awarded to the former spouse.
(c) Except when the court order directed at employee annuity
contains a provision described in paragraph (b)(2) of this section, a court
order directed at employee annuity that instructs the retiree to pay a
portion of the employee annuity to the former spouse is not a court order
acceptable for processing.
48
Retirement Regulations
Requirements for Court Orders Affecting Employee Annuities
§ 838.305 OPM
computation of formulas.
(d) Although paragraphs (b)(2) and (b)(3) of this section provide
acceptable methods for satisfying the requirement that a court order
directed at employee annuity provide for OPM to pay the former spouse,
OPM strongly recommends that any court order directed at employee
annuity expressly direct OPM to pay the former spouse directly.
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§ 838.305 OPM computation of formulas.
(a) A court order directed at employee annuity is not a court order
acceptable for processing unless the court order provides sufficient
instructions and information that OPM can compute the amount of the
former spouse's monthly benefit using only the express language of the
court order, subparts A, B, and F of this part, and information from
normal OPM files.
(b)(1) To provide sufficient instructions and information for OPM to
compute the amount of the former spouse's share of the employee annuity
as required by paragraph (a) of this section the court order must state the
former spouse's share as--
(i) A fixed amount;
(ii) A percentage or a fraction of the employee annuity; or
(iii) A formula that does not contain any variables whose values are
not readily ascertainable from the face of the court order directed at
employee annuity or normal OPM files.
(2) Normal OPM files include information about--
(i) The dates of employment for all periods of creditable civilian and
military service;
(ii) The rate of basic pay for all periods of creditable civilian
service;
(iii) The annual rates of basic pay for each grade and step under the
General Schedule since 1920;
(iv) The amount of premiums for basic and optional life insurance
under the Federal Employees Group Life Insurance Program;
(v) The amount of the Government and the employee shares of
premiums for any health insurance plan under the Federal Employees
Health Benefits Program;
49
Retirement Regulations
Requirements for Court Orders Affecting Employee Annuities
(vi) The standard Federal income tax withholding tables;
(vii) The amount of cost-of-living adjustments under section 8340 or
section 8462 of title 5, United States Code, and the amount of the
percentage change in the national index on which the adjustment is based;
(viii) The amount of pay adjustments to the General Schedule under
section 5303 (or section 5305 prior to November 5, 1990) of title 5,
United States Code, and the amount of the percentage change in the
national index on which the adjustment is based;
(ix) The provision of law under which a retiree has retired; and
(x) Whether a retiree has elected to provide survivor benefits for a
current spouse, former spouse, or a person with an insurable interest.
(c)(1) A court order directed at employee annuity is not a court
order acceptable for processing if OPM would have to examine a State
statute or court decision (on a different case) to understand, establish, or
evaluate the formula for computing the former spouse's share of the
employee annuity.
(2) A court order directed at employee annuity is not a court order
acceptable for processing if it awards the former spouse a "community
property" fraction, share, or percentage of the employee annuity and does
not provide a formula by which OPM can compute the amount of the
former spouse's share of the employee annuity from the face of the court
order or from normal OPM files.
(d) A court order directed at employee annuity is not a court order
acceptable for processing if the court order awards a portion of the
"present value" of an annuity unless the amount of the "present value" is
stated in the court order.
(e) A court order directed at employee annuity is not a court order
acceptable for processing if the court order directs OPM to determine a
rate of employee annuity that would require OPM to determine a salary
or average salary, other than a salary or average salary actually used in
computing the employee annuity, as of a date prior to the date of the
employee's separation and to adjust that salary for use in computing the
former spouse share unless the adjustment is by--
(1) A fixed amount or fixed annual amounts that are stated in the
order;
(2) The rate of cost-of-living or salary adjustments as those terms
are described in § 838.622;
50
Retirement Regulations
Requirements for Court Orders Affecting Employee Annuities
(3) The percentage change in pay that the employee actually
received excluding changes in grade and/or step; or
(4) The percentage change in either of the national indices used to
compute cost-of-living or salary adjustments as those terms are described
in § 838.622.
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§ 838.306 Specifying type
of annuity for application
of formula, percentage or
fraction.
§ 838.306 Specifying type of annuity for application of formula,
percentage or fraction.
(a) A court order directed at employee annuity that states the former
spouse's share of employee annuity as a formula, percentage, or fraction
is not a court order acceptable for processing unless OPM can determine
the type of annuity on which to apply the formula, percentage, or
fraction.
(b) The standard types of annuity to which OPM can apply the
formula, percentage, or fraction are net annuity, gross annuity, or
self-only annuity, which are defined in § 838.103. Unless the court order
otherwise directs, OPM will apply the formula, percentage, or fraction to
gross annuity. Section 838.625 contains information on other methods of
describing these types of annuity.
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51
Retirement Regulations
Procedures for Processing Court Orders Affecting
Refunds of Employee Contributions
Subpart D--Procedures
for Processing Court
Orders Affecting Refunds
of Employee
Contributions
Subpart D--Procedures for Processing Court Orders Affecting
Refunds of Employee Contributions
REGULATORY
STRUCTURE
REGULATORY STRUCTURE
§ 838.401 Purpose and
scope.
§ 838.401 Purpose and scope.
(a) This subpart regulates the procedures that the Office of
Personnel Management will follow upon the receipt of claims arising out
of State court orders that affect refunds of employee contributions under
CSRS or FERS. OPM must comply with court orders, decrees, or
court-approved property settlements in connection with divorces,
annulments of marriages, or legal separations of employees or retirees
that--
(1) Award a portion of a refund of employee contributions to a
former spouse; or
(2) If the requirements of §§ 838.431 and 838.505 are met, bar
payment of a refund of employee contributions.
(b) This subpart prescribes--
(1) The circumstances that must occur before refunds of employee
contributions are available to satisfy a court order acceptable for
processing; and
(2) The procedures that a former spouse must follow when applying
for a portion of a refund of employee contributions based on a court order
under section 8345(j) or section 8467 of title 5, United States Code.
(c)(1) Subpart E of this part contains the rules that a court order
directed at a refund of employee contributions must satisfy to be a court
order acceptable for processing.
(2) Subpart F of this part contains definitions that OPM uses to
determine the effect on a refund of employee contributions of a court
order acceptable for processing.
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52
Retirement Regulations
Procedures for Processing Court Orders Affecting
Refunds of Employee Contributions
AVAILABILITY OF
FUNDS
AVAILABILITY OF FUNDS
§ 838.411 Amounts
subject to court orders.
§ 838.411 Amounts subject to court orders.
(a)(1) Refunds of employee contributions are subject to court orders
acceptable for processing only if all of the conditions necessary for
payment of the refund of employee contributions to the separated
employee have been met, including, but not limited to--
(i) Separation from a covered position in the Federal service;
(ii) Application for payment of the refund of employee contributions
by the separated employee; and
(iii) Immediate entitlement to a refund of employee contributions.
(2) Money held by an employing agency or OPM that may be
payable at some future date is not available for payment under court
orders directed at refunds of employee contributions.
(b) Payment under a court order may not exceed the amount of the
refund of employee contributions.
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APPLICATION AND APPLICATION AND PROCESSING PROCEDURES
PROCESSING
PROCEDURES
§ 838.421 Application § 838.421 Application requirements.
requirements.
(a) A former spouse (personally or through a representative) must
apply in writing to be eligible for a court-awarded portion of a refund of
employee contributions. No special form is required.
(b) The application letter must be accompanied by--
(l) A certified copy of the court order acceptable for processing that
is directed at a refund of employee contributions.
(2) A certification from the former spouse or the former spouse's
representative that the court order is currently in force and has not been
amended, superseded, or set aside;
53
Retirement Regulations
Procedures for Processing Court Orders Affecting
Refunds of Employee Contributions
§ 838.422 Timeliness of
application.
§ 838.423 OPM action on
receipt of a court order
acceptable for processing.
(3) Information sufficient for OPM to identify the employee or
separated employee, such as his or her full name, date of birth, and social
security number;
(4) The current mailing address of the former spouse; and
(5) If the employee or separated employee has not applied for a
refund of employee contributions, the current mailing address of the
employee or separated employee.
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§ 838.422 Timeliness of application.
(a) Except as provided in § 838.431 and paragraph (b) of this
section, a court order acceptable for processing that is directed at a refund
of employee contributions is not effective unless OPM receives the
documentation required by § 838.421 not later than--
(1) The last day of the second month before payment of the refund;
or
(2) Twenty days after OPM receives the Statement required by
§ 831.2007(c) or § 843.208(b) of this chapter if the former spouse has
indicated on that Statement that such a court order exists.
(b) If OPM receives a copy of a court order acceptable for
processing that is directed at a refund of employee contributions but not
all of the documentation required by § 838.421, OPM will notify the
former spouse that OPM must receive the missing items within 15 days
after the date of the notice or OPM cannot comply with the court order.
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§ 838.423 OPM action on receipt of a court order acceptable for
processing.
(a) If OPM receives a court order acceptable for processing that is
directed at a refund of employee contributions, OPM will inform--
(1) The former spouse--
(i) That the court order is acceptable for processing;
(ii) Of the date on which OPM received the court order;
(iii) Whether OPM has a record of unrefunded employee
contributions on the employee;
54
Retirement Regulations
Procedures for Processing Court Orders Affecting
Refunds of Employee Contributions
(iv) That the former spouse's share of the refund of employee
contributions cannot be paid unless the employee separates from the
Federal service and applies for a refund of employee contributions;
(v) To the extent possible, the formula that OPM will use to
compute the former spouse's share of a refund of employee contributions;
and
(vi) That, if the former spouse disagrees with the formula, the
former spouse must obtain, and submit to OPM, an amended court order
clarifying the amount; and
(2) The employee or separated employee--
(i) That the former spouse has applied for benefits under this
subpart;
(ii) That the court order is acceptable for processing and that OPM
must comply with the court order;
(iii) Of the date on which OPM received the court order;
(iv) That the former spouse's share of the refund of employee
contributions cannot be paid unless the employee separates from the
Federal service and applies for a refund of employee contributions;
(v) To the extent possible, the formula that OPM will use to
compute the former spouse's share of the refund of employee
contributions;
(vi) That, if he or she contests the validity of the court order, he or
she must obtain, and submit to OPM, a court order invalidating the court
order submitted by the former spouse; and
(vii) That, if he or she disagrees with the formula, he or she must
obtain, and submit to OPM, an amended court order clarifying the
amount.
(b) The failure of OPM to provide, or of the employee or separated
employee or the former spouse to receive, the information specified in
this section does not affect the validity of payment under the court order.
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55
Retirement Regulations
Procedures for Processing Court Orders Affecting
Refunds of Employee Contributions
§ 838.424 OPM action on § 838.424 OPM action on receipt of a court order not acceptable for
receipt of a court order processing.
not acceptable for
processing.
If OPM receives an application from a former spouse not based on a
court order acceptable for processing, OPM will inform the former
spouse that OPM cannot approve the application and provide the specific
reason(s) for disapproving the application. Examples of reasons for
disapproving an application include that the order does not meet the
definition of court order in § 838.103 or does not meet one or more of the
requirements of subpart E of this part.
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§ 838.425 Contesting the § 838.425 Contesting the validity of court orders.
validity of court orders.
(a) An employee or separated employee who alleges that a court
order is invalid must prove the invalidity of the court order by submitting
a court order that--
(1) Declares invalid the court order submitted by the former spouse;
or
(2) Sets aside the court order submitted by the former spouse.
(b) OPM must honor a court order acceptable for processing that
appears to be valid and that the former spouse has certified is currently in
force and has not been amended, superseded, or set aside, until the
employee or separated employee submits a court order described in
paragraph (a) of this section or a court order amending or superseding the
court order submitted by the former spouse.
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PAYMENT PAYMENT PROCEDURES
PROCEDURES
§ 838.431 Correcting § 838.431 Correcting failures to provide required spousal
failures to provide notification.
required spousal
notification.
The interests of a former spouse with a court order acceptable for
processing that is directed at a refund of employee contributions who does
not receive notice of an application for refund of employee contributions
because the employee or separated employee submits fraudulent proof of
notification or fraudulent proof that the former spouse's whereabouts are
unknown are protected if, and only if--
56
Retirement Regulations
Procedures for Processing Court Orders Affecting
Refunds of Employee Contributions
(a) The former spouse files a court order acceptable for processing
that affects or bars the refund of employee contributions with OPM no
later than the last day of the second month before the payment of the
refund; or
(b) The former spouse submits proof that--
(1) The evidence submitted by the employee was fraudulent; and
(2) Absent the fraud, the former spouse would have been able to
submit the necessary documentation required by § 838.421 within the
time limit prescribed in § 838.422.
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§ 838.432 Court orders
barring payment of
refunds.
§ 838.432 Court orders barring payment of refunds.
A court order, notice, summons, or other document that attempts to
restrain OPM from paying a refund of employee contributions is not
effective unless it meets all the requirements of § 838.505 or part 581 of
this chapter.
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PROCEDURES FOR PROCEDURES FOR COMPUTING THE AMOUNT PAYABLE
COMPUTING THE
AMOUNT PAYABLE
§ 838.441 Computing § 838.441 Computing lengths of service.
lengths of service.
(a) The smallest unit of time that OPM will calculate in computing a
formula in a court order is a month, even where the court order directs
OPM to make a more precise calculation.
(b) If the court order states a formula using a specified simple or
decimal fraction other than twelfth parts of a year, OPM will use the
specified number to perform simple mathematical computations.
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57
Retirement Regulations
Requirements for Court Orders Affecting Refunds of Employee
Contributions
Subpart E--
Requirements for Court
Orders Affecting Refunds
of Employee
Contributions
Subpart E--Requirements for Court Orders Affecting Refunds of
Employee Contributions
§ 838.501 Purpose and
scope.
§ 838.501 Purpose and scope.
This subpart regulates the requirements that a court order directed at
or barring a refund of employee contributions must meet to be a court
order acceptable for processing.
(a) A court order is directed at a refund of employee contributions if
it awards a former spouse a portion of a refund of employee
contributions.
(b) A court order bars a refund of employee contributions if it
prohibits payment of a refund of employee contributions to preserve a
former spouse's court-awarded entitlement to a portion of an employee
annuity or to a former spouse survivor annuity.
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§ 838.502 Expressly
dividing a refund of
employee contributions.
§ 838.502 Expressly dividing a refund of employee contributions.
(a) A court order directed at a refund of employee contributions is
not a court order acceptable for processing unless it expressly awards a
former spouse a portion of a refund of employee contributions as
provided in paragraph (b) of this section.
(b) To expressly award a former spouse a portion of a refund of
employee contributions as required by paragraph (a) of this section, the
court order must--
(1) Identify the retirement system using terms that are sufficient to
identify the retirement system as explained in § 838.611; and
(2) Expressly state that the former spouse is entitled to a portion of a
refund of employee contributions using terms that are sufficient to identify
the refund of employee contributions as explained in § 838.612.
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58
Retirement Regulations
Requirements for Court Orders Affecting Refunds of Employee
Contributions
§ 838.503 Providing for
payment to the former
spouse.
§ 838.503 Providing for payment to the former spouse.
(a) A court order directed at a refund of employee contributions is
not a court order acceptable for processing unless it provides for OPM to
pay a portion of a refund of employee contributions to the former spouse
as provided in paragraph (b) of this section.
(b) To provide for OPM to pay a portion of a refund of employee
contributions to the former spouse as required by paragraph (a) of this
section, the court order must--
(1) Expressly direct OPM to pay the former spouse directly;
(2) Direct the employee or separated employee to arrange or to
execute forms for OPM to pay the former spouse directly; or
(3) Be silent concerning who is to pay the portion of the refund of
employee contributions awarded to the former spouse.
(c) Although paragraphs (b)(2) and (b)(3) of this section provide
acceptable methods for satisfying the requirement that the court order
provide for OPM to pay the former spouse, OPM strongly recommends
that the court order expressly direct OPM to pay the former spouse
directly.
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§ 838.504 OPM
computation of formulas.
§ 838.504 OPM computation of formulas.
(a) A court order directed at a refund of employee contributions is
not a court order acceptable for processing unless the court order
provides sufficient instructions and information so that OPM can compute
the amount of the former spouse's share of the refund of employee
contributions using only the express language of the court order, subparts
A, D, and F of this part, and information from normal OPM files.
(b) To provide sufficient instructions and information that OPM can
compute the amount of the former spouse's share of the refund of
employee contributions as required by paragraph (a) of this section
requires that the court order state the former spouse's share as--
(1) A fixed amount;
(2) A percentage or a fraction of the refund of employee
contributions; or
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Retirement Regulations
Requirements for Court Orders Affecting Refunds of Employee
Contributions
(3) A formula that does not contain any variables whose values are
not readily ascertainable from the face of the court order or normal OPM
files.
(c) A court order directed at a refund of employee contributions is
not a court order acceptable for processing if OPM would have to
examine a State statute or court decision (on a different case) to
understand, establish, or evaluate the formula for computing the former
spouse's share of the refund of employee contributions.
S))))))))))))))))))))))))))))
§ 838.505 Barring § 838.505 Barring payment of refunds.
payment of refunds.
A court order barring payment of a refund of employee
contributions is not a court order acceptable for processing unless--
(a) It expressly directs OPM not to pay a refund of employee
contributions;
(b) It awards, or a prior court order acceptable for processing has
awarded, the former spouse a former spouse survivor annuity or a portion
of the employee annuity; and
(c) Payment of the refund of employee contributions would prevent
payment to the former spouse under the court order described in
paragraph (b) of this section.
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60
Retirement Regulations
Terminology Used in Court Orders Affecting Employee Annuities
or Refunds of Employee Contributions
Subpart F--Terminology
Used in Court Orders
Affecting Employee
Annuities or Refunds of
Employee Contributions
Subpart F--Terminology Used in Court Orders Affecting Employee
Annuities or Refunds of Employee Contributions
REGULATORY
STRUCTURE
REGULATORY STRUCTURE
§ 838.601 Purpose and
scope.
§ 838.601 Purpose and scope.
(a) This subpart regulates the meaning of terms necessary to award
benefits in a court order directed at an employee annuity or a refund of
employee contributions. OPM applies the meanings to determine whether
a court order directed at an employee annuity or a refund of employee
contributions is a court order acceptable for processing and to establish
the amount of the former spouse's share of an employee annuity or a
refund of employee contributions.
(b)(1) This subpart establishes a uniform meaning to be used for
terms and phrases frequently used in awarding a former spouse a portion
of an employee annuity or a refund of employee contributions.
(2) This subpart informs the legal community about the definitions to
apply terms used in drafting court orders so that the resulting court orders
contain the proper language to accomplish the aims of the court.
(c)(1) To assist attorneys and courts in preparing court orders that
OPM can honor in the manner that the court intends, Appendix A of this
subpart contains model language to accomplish many of the more
common objectives associated with the award of a former spouse's share
of an employee annuity or a refund of employee contributions.
(2) By using the language in Appendix A of this subpart, the court,
attorneys, and parties will know that the court order will be acceptable for
processing and that OPM will treat the terminology used in the court
order in the manner stated in the Appendix.
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61
Retirement Regulations
Terminology Used in Court Orders Affecting Employee Annuities
or Refunds of Employee Contributions
IDENTIFICATION OF IDENTIFICATION OF BENEFITS
BENEFITS
§ 838.611 Identifying the
retirement system.
§ 838.611 Identifying the retirement system.
(a) To satisfy the requirements of § 838.303(b)(1) or
§ 838.502(b)(1), a court order must contain language identifying the
retirement system to be affected. For example, "CSRS," "FERS,"
"OPM," or "Federal Government" benefits, or benefits payable "based
on service with the U.S. Department of Agriculture," etc., are sufficient
identification of the retirement system.
(b) Except as provided in paragraphs (b)(1) and (b)(2) of this
section, language referring to benefits under another retirement system,
such as military retired pay, Foreign Service retirement benefits or
Central Intelligence Agency retirement benefits, does not satisfy the
requirements of § 838.303(b)(1) or § 838.502(b)(1).
(1) A court order that mistakenly labels CSRS benefits as FERS
benefits and vice versa satisfies the requirements of §§ 838.303(b)(1) and
838.502(b)(1).
(2) Unless the court order expressly provides otherwise, for
employees transferring to FERS, court orders directed at CSRS benefits
apply to the entire FERS basic benefit, including the CSRS component, if
any. Such a court order satisfies the requirements of §§ 838.303(b)(1)
and 838.502(b)(1).
(c) A court order affecting military retired pay, even when military
retired pay has been waived for inclusion in CSRS annuities, does not
award a former spouse a portion of an employee annuity or a refund of
employee contributions under CSRS or FERS. Such a court order does
not satisfy the requirements of § 838.303(b)(1) or § 838.502(b)(1).
S))))))))))))))))))))))))))))
§ 838.612 Distinguishing
between annuities and
§ 838.612 Distinguishing between annuities and contributions.
contributions.
(a) A court order using "annuities," "pensions," "retirement
benefits," or similar terms satisfies the requirements of §§ 838.303(b)(2)
and 838.502(b)(2) and may be used to divide an employee annuity and a
refund of employee contributions.
(b)(1) A court order using "contributions," "deductions,"
"deposits," "retirement accounts," "retirement fund," or similar terms
satisfies the requirements of § 838.502(b)(2) and may be used only to
62
Retirement Regulations
Terminology Used in Court Orders Affecting Employee Annuities
or Refunds of Employee Contributions
divide the amount of contributions that the employee has paid into the
Civil Service Retirement and Disability Fund.
(2) Unless the court order specifically states otherwise, when an
employee annuity is payable, a court order using the terms specified in
paragraph (b)(1) of this section satisfies the requirements of
§ 838.303(b)(2) and awards the former spouse a benefit to be paid in
equal monthly installments at 50 percent of the gross annuity at the time
of retirement or the date of the court order, whichever comes later, until
the specific dollar amount is reached.
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COMPUTATION OF
BENEFITS
COMPUTATION OF BENEFITS
§ 838.621 Prorata share. § 838.621 Prorata share.
(a) "Prorata share" means one-half of the fraction whose numerator
is the number of months of Federal civilian and military service that the
employee performed during the marriage and whose denominator is the
total number of months of Federal civilian and military service performed
by the employee.
(b) A court order that awards a former spouse a prorata share of an
employee annuity or a refund of employee contributions by using the term
"prorata share" and identifying the date when the marriage began satisfies
the requirements of §§ 838.305 and 838.504 and awards the former
spouse a prorata share as defined in paragraph (a) of this section.
(c) A court order that awards a portion of an employee annuity as of
a specified date before the employee's retirement awards the former
spouse a prorata share as defined in paragraph (a) of this section.
(d) A court order that awards a portion of the "value" of an annuity
as of a specific date before retirement, without specifying what "value"
is, awards the former spouse a prorata share as defined in paragraph (a)
of this section.
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Terminology Used in Court Orders Affecting Employee Annuities
or Refunds of Employee Contributions
§ 838.622 Cost-of-living
and salary adjustments.
§ 838.622 Cost-of-living and salary adjustments.
(a)(1) A court order that awards adjustments to a former spouse's
portion of an employee annuity stated in terms such as "cost-of-living
adjustments" or "COLA's" occurring after the date of the decree but
before the date of retirement provides increases equal to the adjustments
described in or effected under section 8340 or section 8462 of title 5,
United States Code.
(2) A court order that awards adjustments to a former spouse's
portion of an employee annuity stated in terms such as "salary
adjustments" or "pay adjustments" occurring after the date of the decree
provides increases equal to the adjustments described in or effected under
section 5303 of title 5, United States Code until the date of retirement.
(b)(1) Unless the court order directly and unequivocally orders
otherwise, a court order that awards a former spouse a portion of an
employee annuity either on a percentage basis or by use of a fraction or
formula provides that the former spouse's share of the employee annuity
will be adjusted to maintain the same percentage or fraction whenever the
employee annuity changes as a result of--
(i) Salary adjustments occurring after the date of the decree and
before the employee retires; and
(ii) Cost-of-living adjustments occurring after the date of the decree
and after the date of the employee's retirement.
(2) A court order that awards a former spouse a specific dollar
amount from the employee annuity prevents the former spouse from
benefiting from salary and cost-of-living adjustments after the date of the
decree, unless the court expressly orders their inclusion.
(c)(1)(i) Except as provided in paragraph (b) of this section, a court
order that contains a general instruction to calculate the former spouse's
share effective at the time of divorce or separation entitles the former
spouse to the benefit of salary adjustments occurring after the specified
date to the same extent as the employee.
(ii) To prevent the application of salary adjustments after the date of
the divorce or separation, the court order must either state the exact
dollar amount of the award to the former spouse or specifically instruct
OPM not to apply salary adjustments after the specified date in computing
the former spouse's share of the employee annuity.
64
Retirement Regulations
Terminology Used in Court Orders Affecting Employee Annuities
or Refunds of Employee Contributions
§ 838.623 Computing
lengths of service.
(2)(i) Except as provided in paragraph (b) of this section, a court
order that requires OPM to compute a benefit as of a specified date
before the employee's retirement, and specifically instructs OPM not to
apply salary adjustments after the specified date in computing the former
spouse's share of an employee annuity provides that the former spouse is
entitled to the application of cost-of-living adjustments after the date of the
employee's retirement in the manner described in § 838.241.
(ii) To award cost-of-living adjustments between a specified date and
the employee's retirement, the court order must specifically instruct OPM
to adjust the former spouse's share of the employee annuity by any
cost-of-living adjustments occurring between the specified date and the
date of the employee's retirement.
(iii) To prevent the application of cost-of-living adjustments that
occur after the employee annuity begins to accrue to the former spouse's
share of the employee annuity, the decree must either state the exact
dollar amount of the award to the former spouse or specifically instruct
OPM not to apply cost-of-living adjustments occurring after the date of
the employee's retirement.
S))))))))))))))))))))))))))))
§ 838.623 Computing lengths of service.
(a) Sections 838.242 and 838.441 contain information on how OPM
calculates lengths of service.
(b) Unless the court order otherwise expressly directs--
(1) For the purpose of describing a period of time to be excluded
from any element of a computation, the term "military service" means
military service as defined in section 8331(13) of title 5, United States
Code, and does not include civilian service with the Department of
Defense or the Coast Guard; and
(2) For the purpose of describing a period of time to be included in
any element of a computation, the term "military service" means all
periods of military and civilian service performed with the Department of
Defense or the Coast Guard.
(c)(1) When a court order contains a formula for dividing employee
annuity that requires a computation of service worked as of a date prior to
separation and using terms such as "years of service," "total service,"
"service performed," or similar terms, the time attributable to unused
sick leave will not be included.
65
Retirement Regulations
Terminology Used in Court Orders Affecting Employee Annuities
or Refunds of Employee Contributions
(2) When a court order contains a formula for dividing employee
annuity that requires a computation of "creditable service" (or some other
phrase using "credit" or its equivalent) as of a date prior to retirement,
unused sick leave will be included in the computation (involving a CSRS
employee annuity or the CSRS component of a FERS employee annuity)
as follows:
(i) If the amount of unused sick leave is specified, the court order
awards a portion of the employee annuity equal to the monthly employee
annuity at retirement times a fraction, the numerator of which is the
number of months of "creditable service" as of the date specified plus the
number of months of unused sick leave specified (which sum is rounded
to eliminate partial months) and whose denominator is the months of
"creditable service" used in the retirement computation.
(ii) If the amount of unused sick leave is not specified, the court
order awards a portion of the employee annuity equal to the monthly rate
at the time of retirement times a fraction, the numerator of which is the
number of months of "creditable service" as of the date specified (no sick
leave included) and whose denominator is the number of months of
"creditable service" used in the retirement computation (sick leave
included).
(d)(1) General language such as "benefits earned as an employee
with the U.S. Postal Service . . ." provides only that CSRS retirement
benefits are subject to division and does not limit the period of service
included in the computation (i.e., service performed with other
Government agencies will be included).
(2) To limit the computation of benefits to a particular period of
employment, the court order must--
(i) Use language expressly limiting the period of service to be
included in the computation (e.g., "only U.S. Postal Service" or
"exclusive of any service other than U.S. Postal Service employment");
or
(ii) Specify the number of months to be included in the computation;
or
(iii) Describe specifically the period of service to be included in the
computation (e.g., "only service performed during the period Petitioner
and Defendant were married" or "benefits based on service performed
through the date of divorce").
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66
Retirement Regulations
Terminology Used in Court Orders Affecting Employee Annuities
or Refunds of Employee Contributions
§ 838.624 Distinguishing
between formulas and
fixed amounts.
§ 838.624 Distinguishing between formulas and fixed amounts.
(a) A court order that contains both a formula or percentage
instruction and a dollar amount is deemed to include the dollar amount
only as the court's estimate of the initial amount of payment. The
formula or percentage instruction controls.
(b) A court order that awards a portion of the "present value" of an
employee annuity and specifically states the amount of either the "present
value" of the employee annuity or of the award is deemed to give the
former spouse "a specific dollar amount" that is payable from a monthly
employee annuity and will be paid as a lump-sum award in accordance
with § 838.235.
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§ 838.625 Types of
annuity.
§ 838.625 Types of annuity.
(a) Terms that are synonymous with net annuity are--
(1) Disposable annuity; and
(2) Retirement check.
(b) Terms that are synonymous with self-only annuity are--
(1) Life rate annuity;
(2) Unreduced annuity; and
(3) Annuity without survivor benefit.
(c) All court orders that do not specify net annuity or self-only
annuity apply to gross annuity.
S)))))))))))))))))))))))))))))))))))))))))))
67
Retirement Regulations
Model Paragraphs
MODEL PARAGRAPHS MODEL PARAGRAPHS
Appendix A to Subpart F
of Part
838--Recommended
Appendix A to Subpart F of Part 838--Recommended Language for
Court Orders Dividing Employee Annuities.
Language for Court
Orders Dividing
Employee Annuities.
This appendix provides recommended language for use in court
orders attempting to divide employee annuity. A court order directed at
employee annuity should include five elements:
! Identification of the benefits;
! Instructions that OPM pay the former spouse;
! A method for computing the amount of the former spouse's
benefit;
! Identification of the type of annuity to which to apply a fraction,
percentage or formula; and
! Instructions on what OPM should do if the employee leaves
Federal service before retirement and applies for a refund of employee
contributions.
The court order may also include instructions for disposition of the
former spouse's share if the former spouse dies before the employee. By
using the model language, courts will know that the court order will have
the effect described in this appendix.
The model language in this appendix does not award a benefit that is
payable after the death of the employee. A separate, distinct award of a
former spouse survivor annuity is necessary to award a former spouse a
benefit that is payable after the death of the employee. Appendix A to
subpart I of this part contains model language for awarding survivor
annuities and contains some examples that award both a portion of an
employee annuity and a survivor annuity.
The model language uses the terms "[former spouse]" to identify the
spouse who is receiving a former spouse's portion of an employee annuity
and "[employee]" to identify the Federal employee whose employment
was covered by the Civil Service Retirement System or the Federal
Employees Retirement System. Obviously, in drafting an actual court
order the appropriate terms, such as "Petitioner" and "Respondent," or
the names of the parties should replace "[former spouse]" and
"[employee]."
Similarly, the models are drafted for employees covered by the
Civil Service Retirement System. The name of the retirement system
should be changed for employees covered by the Federal Employees
Retirement System.
TABLE OF CONTENTS TABLE OF CONTENTS
68
Retirement Regulations
Model Paragraphs
000 Series--Special Technical Provisions.
¶001 Language required in Qualified Domestic Relations Orders.
100 Series--Identification of the benefits and instructions that OPM
pay the former spouse.
¶101 Identifying retirement benefits and directing OPM to pay the
former spouse.
¶102-110 [Reserved].
¶111 Protecting a former spouse entitled to military retired pay.
200 Series--Computing the amount of the former spouse's benefit.
¶201 Award of a fixed monthly amount.
¶202 Award of a percentage.
¶203 Award of a fraction.
¶204 Award of a prorata share.
¶205-210 [Reserved].
¶211 Award based on a stated formula.
¶212-230 [Reserved].
¶231 Awarding COLA's on fixed monthly amounts.
¶232 Excluding COLA's on awards other than fixed monthly amounts.
300 Series--Type of annuity.
¶301 Awards based on benefits actually paid.
¶302-310 [Reserved].
¶311 Awards of earned annuity in cases where the actual annuity is based
on disability.
400 Series--Refunds of employee contributions.
¶401 Barring payment of a refund of employee contributions.
¶402 Dividing a refund of employee contributions.
500 Series--Death of the former spouse.
¶501 Full annuity restored to the retiree.
¶502 Former spouse share paid to children.
¶503 Former spouse share paid to the court.
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Retirement Regulations
Model Paragraphs
000 Series--Special 000 Series--Special Technical Provisions.
Technical Provisions.
¶001 Language required ¶001 Language required in Qualified Domestic Relations Orders.
in Qualified Domestic
Relations Orders.
Using the following paragraph will expressly state that the
provisions of the court order concerning CSRS or FERS benefits are
governed by this part. A court order directed at employee annuity (or
awarding a survivor annuity) that is labelled a "Qualified Domestic
Relations Order" or is issued on an ERISA form will not be automatically
rendered unacceptable under § 838.302(a) or § 838.803(a) if the court
order contains the following paragraph.
"The court has considered the requirements and standard
terminology provided in part 838 of Title 5, Code of Federal Regulations.
The terminology used in the provisions of this order that concern benefits
under the Civil Service Retirement System are governed by the standard
conventions established in that part."
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100 Series--Identification 100 Series--Identification of the benefits and instructions that OPM
of the benefits and pay the former spouse.
instructions that OPM
pay the former spouse.
¶101 Identifying ¶101 Identifying retirement benefits and directing OPM to pay the
retirement benefits and former spouse.
directing OPM to pay the
former spouse.
Using the following paragraph will expressly divide employee
annuity to satisfy the requirements of § 838.303 and direct OPM to pay
the former spouse a share of an employee annuity to satisfy the
requirements of § 838.304.
"[Employee] is (or will be) eligible for retirement benefits under the
Civil Service Retirement System based on employment with the United
States Government. [Insert language for computing the former spouse's
share from 200 series of this appendix.] The United States Office of
Personnel Management is directed to pay [former spouse]'s share directly
to [former spouse]."
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¶102-110 [Reserved].
70
Retirement Regulations
Model Paragraphs
¶111 Protecting a former ¶111 Protecting a former spouse entitled to military retired pay.
spouse entitled to military
retired pay.
Using the following paragraph will protect the former spouse
interest in military retired pay in the event that the employee waives the
military retired pay to allow crediting the military service under CSRS or
FERS. The paragraph should be used only if the former spouse is
awarded a portion of the military retired pay. "If [Employee] waives
military retired pay to credit military service under the Civil Service
Retirement System, [insert language for computing the former spouse's
share from 200 series of this appendix.]. The United States Office of
Personnel Management is directed to pay [former spouse]'s share directly
to [former spouse]."
S)))))))))))))))))))))))))))))))))))))))))))
200 Series--Computing 200 Series--Computing the amount of the former spouse's benefit.
the amount of the former
spouse's benefit.
Paragraphs 201 through 204 contain model language for the most
common types of awards that court orders make to former spouses.
Subsequent paragraphs in the 200 series contain model language for less
common, more complex awards.
Awards other than fixed amounts require that the court order specify
the type of annuity ("gross," "net," or self-only) on which the award is
computed. The types of annuity are defined in § 838.103. Variations on
type of annuity are covered by the 300 series of this appendix.
¶201 Award of a fixed ¶201 Award of a fixed monthly amount.
monthly amount.
Using the following paragraph will award the former spouse a fixed
monthly amount. OPM will not apply COLA's to a fixed monthly
amount unless the court order expressly directs that OPM add COLA's
using the language in ¶231 of this appendix or similar language.
"[Employee] is (or will be) eligible for retirement benefits under the
Civil Service Retirement System based on employment with the United
States Government. [Former spouse] is entitled to $[insert a number] per
month from [employee]'s civil service retirement benefits. The United
States Office of Personnel Management is directed to pay [former
spouse]'s share directly to [former spouse]."
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71
Retirement Regulations
Model Paragraphs
¶202 Award of a ¶202 Award of a percentage.
percentage.
Using the following paragraph will award the former spouse a stated
percentage of the employee annuity. Unless the court order expressly
directs that OPM not add COLA's to the former spouse's share of the
employee annuity, OPM will add COLA's to keep the former spouse's
share at the stated percentage. Paragraph 232 of this appendix provides
language for excluding COLA's.
"[Employee] is (or will be) eligible for retirement benefits under the
Civil Service Retirement System based on employment with the United
States Government. [Former spouse] is entitled to [insert a number]
percent of [employee]'s [insert "gross," "net," or "self-only"] monthly
annuity under the Civil Service Retirement System. The United States
Office of Personnel Management is directed to pay [former spouse]'s
share directly to [former spouse]."
S))))))))))))))))))))))))))))
¶203 Award of a
fraction.
¶203 Award of a fraction.
Using the following paragraph will award the former spouse a stated
fraction of the employee annuity. Unless the court order expressly directs
that OPM not add COLA's to the former spouse's share of the employee
annuity, OPM will add COLA's to keep the former spouse's share at the
stated percentage. Paragraph 232 of this appendix provides language for
excluding COLA's.
"[Employee] is (or will be) eligible for retirement benefits under the
Civil Service Retirement System based on employment with the United
States Government. [Former spouse] is entitled to [insert fraction]ths of
[employee]'s [insert "gross," "net," or "self-only"] monthly annuity
under the Civil Service Retirement System. The United States Office of
Personnel Management is directed to pay [former spouse]'s share directly
to [former spouse]."
S))))))))))))))))))))))))))))
¶204 Award of a prorata
share.
¶204 Award of a prorata share.
Using the following paragraph will award the former spouse a
prorata share of the employee annuity. Prorata share is defined in
§ 838.621. To award a prorata share the court order must state the date
of the marriage. Unless the court order specifies a different ending date,
the marriage ends for computation purposes on the date that the court
order is filed with the court clerk. Unless the court order expressly
directs that OPM not add COLA's to the former spouse's share of the
employee annuity, OPM will add COLA's to keep the former spouse's
72
Retirement Regulations
Model Paragraphs
share at the stated percentage. Paragraph 232 of this appendix provides
language for excluding COLA's.
"[Employee] is (or will be) eligible for retirement benefits under the
Civil Service Retirement System based on employment with the United
States Government. [Former spouse] is entitled to a prorata share of
[employee]'s [insert "gross," "net," or self-only] monthly annuity under
the Civil Service Retirement System. The marriage began on [insert
date]. The United States Office of Personnel Management is directed to
pay [former spouse]'s share directly to [former spouse]."
S))))))))))))))))))))))))))))
¶205-210 [Reserved].
¶211 Award based on a ¶211 Award based on a stated formula.
stated formula.
Using the following paragraphs will award the former spouse a
share of the employee annuity based on a formula stated in the court
order. The formula must be stated in the court order (including a
court-approved property settlement agreement). The formula may not be
incorporated by reference to a statutory provision or a court decision in
another case. If the court order uses a formula, the court order must
include any data that is necessary for OPM to apply the formula unless
the necessary data is contained in normal OPM files.
"[Employee] is (or will be) eligible for retirement benefits under the
Civil Service Retirement System based on employment with the United
States Government. [Former spouse] is entitled to a share of
[employee]'s [insert "gross," "net," or self-only] monthly annuity under
the Civil Service Retirement System to be computed as follows: "[Insert
formula for computing the former spouse's share.]
"The United States Office of Personnel Management is directed to
pay [former spouse]'s share directly to [former spouse]."
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¶212-230 [Reserved].
73
Retirement Regulations
Model Paragraphs
¶231 Awarding COLA's ¶231 Awarding COLA's on fixed monthly amounts.
on fixed monthly
amounts.
Using the following paragraph will award COLA's in addition to a
fixed monthly amount to the former spouse. The model awards COLA's
at the same rate applied to the employee annuity.
"[Employee] is (or will be) eligible for retirement benefits under the
Civil Service Retirement System based on employment with the United
States Government. [Former spouse] is entitled to $[insert a number] per
month from [employee]'s civil service retirement benefits. When
COLA's are applied to [employee]'s retirement benefits, the same COLA
applies to [former spouse]'s share. The United States Office of Personnel
Management is directed to pay [former spouse]'s share directly to
[former spouse]."
S))))))))))))))))))))))))))))
¶232 Excluding COLA's ¶232 Excluding COLA's on awards other than fixed monthly
on awards other than amounts.
fixed monthly amounts.
Using the following paragraph will prevent application of COLA's
to a former spouse's share of an employee annuity in cases where the
former spouse has been awarded a percentage, fraction or prorata share
of the employee annuity, rather than a fixed dollar amount.
"[Employee] is (or will be) eligible for retirement benefits under the
Civil Service Retirement System based on employment with the United
States Government. [Insert language for computing the former spouse's
share from ¶202, ¶203, ¶204, or ¶211 of this appendix.] The United
States Office of Personnel Management is directed to determine the
amount of [former spouse]'s share on the date [insert "when [employee]
retires" if the employee has not retired, or "of this order" if the employee
is already retired] and not to apply COLA's to that amount. The United
States Office of Personnel Management is directed to pay [former
spouse]'s share directly to [former spouse]."
S)))))))))))))))))))))))))))))))))))))))))))
300 Series--Type of 300 Series--Type of annuity.
annuity.
Awards of employee annuity to a former spouse (other than awards
of fixed dollar amounts) must specify whether OPM will use the "gross,"
"net," or self-only annuity as defined in § 838.103 in determining the
amount of the former spouse's entitlement. The court order may contain
a formula that has the effect of creating other types of annuity, but the
court order may only do this by providing a formula that starts from
"gross," "net," or self-only annuity as defined in § 838.103.
74
Retirement Regulations
Model Paragraphs
¶301 Awards based on
benefits actually paid.
¶311 Awards of earned
annuity in cases where the
actual annuity is based on
disability.
¶301 Awards based on benefits actually paid.
The court order may include a formula that effectively uses the
court's definition of net annuity rather than the one provided by
§ 838.103. For example, using the following paragraph will award the
former spouse a prorata share of the employee annuity reduced only by
the amount deducted as premiums for basic life insurance under the
Federal Employee Group Life Insurance Program.
"[Employee] is (or will be) eligible for retirement benefits under the
Civil Service Retirement System based on employment with the United
States Government. [Former spouse] is entitled to a prorata share of
[employee]'s monthly annuity under the Civil Service Retirement System,
where monthly annuity means the self-only annuity less the amount
deducted as premiums for basic life insurance under the Federal
Employee Group Life Insurance Program. The marriage began on [insert
date]. The United States Office of Personnel Management is directed to
pay [former spouse]'s share directly to [former spouse]."
S))))))))))))))))))))))))))))
¶302-310 [Reserved].
¶311 Awards of earned annuity in cases where the actual annuity is
based on disability.
Using the following paragraph will award a former spouse a prorata
share of what the employee annuity would have been based on only the
employee's actual service in cases where the actual employee annuity is
based on disability. The paragraph also allows the court order to provide
for the former spouse's share to begin when the employee reaches a
stated age, using age 62 as an example. As with all other formulas the
court order must specify whether the computation applies to "gross,"
"net," or self-only annuity. OPM will apply COLA's that occurred after
the date of the disability retirement to the former spouse's share. The
following paragraph should be used only for disability retirees under
CSRS. Under FERS, section 8452 of title 5, United States Code,
provides a formula for recomputation of disability annuities at age 62 to
approximate an earned annuity. Therefore to award a portion of the
"earned" benefit under FERS add the introductory phrase, "Starting when
[employee] reaches age 62," to the paragraph describing how to compute
the amount.
"[Employee] is (or will be) eligible for retirement benefits under the
Civil Service Retirement System based on employment with the United
75
Retirement Regulations
Model Paragraphs
State's Government. Starting when [employee] reaches age 62, [former
spouse] is entitled to a prorata share of [employee]'s [insert "gross,"
"net," or self-only] monthly annuity under the Civil Service Retirement
System, where monthly annuity means the amount of [employee]'s
monthly annuity computed as though [employee] had retired on an
immediate, nondisability annuity on the commencing date of [employee]'s
annuity based on disability. In computing the amount of the immediate
annuity, the United States Office of Personnel Management will deem
[employee] to have been age 62 at the time that [employee] retired on
disability. The marriage began on [insert date]. The United States Office
of Personnel Management is directed to pay [former spouse]'s share
directly to [former spouse]."
S)))))))))))))))))))))))))))))))))))))))))))
400 Series--Refunds of 400 Series--Refunds of employee contributions.
employee contributions.
Court orders that award a former spouse a portion of a future
employee annuity of an employee who is not then eligible to retire should
include an additional paragraph containing instructions that tell OPM what
to do if the employee separates before becoming eligible to retire and
requests a refund of employee contributions. The court order may award
the former spouse a portion of the refund of employee contributions or
bar payment of the refund of employee contributions.
¶401 Barring payment of ¶401 Barring payment of a refund of employee contributions.
a refund of employee
contributions.
Using the following paragraph will bar payment of the refund of
employee contributions if payment of the refund of employee
contributions would extinguish the former spouse's entitlement to a
portion of the employee annuity. "The United States Office of Personnel
Management is directed not to pay [employee] a refund of employee
contributions."
S))))))))))))))))))))))))))))
¶402 Dividing a refund of ¶402 Dividing a refund of employee contributions.
employee contributions.
Using the following paragraph will allow the refund of employee
contributions to be paid but will award a prorata share of the refund of
employee contributions to the former spouse. The sentence on the
beginning date of the marriage is unnecessary if the beginning is stated
elsewhere in the order. The award of a prorata share is used only as an
example; the court order could provide another fraction, percentage, or
formula, or a fixed amount. Note that a refund of employee contributions
voids the employee's rights to an employee annuity and the former
spouse's right to any portion of that annuity.
76
Retirement Regulations
Model Paragraphs
"If [employee] becomes eligible and applies for a refund of
employee contributions, [former spouse] is entitled to a prorata share of
the refund of employee contributions. The marriage began on [insert
date]. The United States Office of Personnel Management is directed to
pay [former spouse]'s share directly to [former spouse]."
S)))))))))))))))))))))))))))))))))))))))))))
500 Series--Death of the
former spouse.
500 Series--Death of the former spouse.
¶501 Full annuity
restored to the retiree.
¶501 Full annuity restored to the retiree.
No special provision is necessary to restore the entire annuity to the
retiree upon the death of the former spouse. Unless the court order
expressly provides otherwise, OPM will pay the former spouse's share to
the retiree after the death of the former spouse.
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¶502 Former spouse
share paid to children.
¶502 Former spouse share paid to children.
Using the following paragraph will award the former spouse's share
of an employee annuity to the children, including any adopted children, of
the employee and former spouse.
"If [former spouse] dies before [employee], the United States Office
of Personnel Management is directed to pay [former spouse]'s share of
[employee]'s civil service retirement benefits to surviving children of the
marriage including any adopted children, in equal shares. Upon the death
of any child, that child's share will be distributed among the other
surviving children."
The language may be modified to terminate the payments to the
children when they reach a stated age. A court order that includes such a
provision for termination must include sufficient information (such as the
children's dates of birth) to permit OPM to determine when the children's
interest terminate. OPM will not consider evidence outside the court
order (and normal OPM files) to establish the children's dates of birth.
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¶503 Former spouse
share paid to the court.
¶503 Former spouse share paid to the court.
Using the following paragraph will provide for payment of the
former spouse's share of an employee annuity to the court after the death
of the former spouse. This would allow a court officer to administer the
funds. "If [former spouse] dies before [employee], the United States
Office of Personnel Management is directed to pay [former spouse]'s
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share of [employee]'s civil service retirement benefits to this court at the
following address: "[Insert address where checks should be sent. The
address may be up to six lines and should include sufficient information
for court officials to credit the correct account.]"
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Procedures for Processing Court Orders Awarding
Former Spouse Survivor Annuities
Subpart G--Procedures
for Processing Court
Orders Awarding Former
Spouse Survivor
Annuities
Subpart G--Procedures for Processing Court Orders Awarding
Former Spouse Survivor Annuities
REGULATORY
STRUCTURE
REGULATORY STRUCTURE
§ 838.701 Purpose and
scope.
§ 838.701 Purpose and scope.
(a) This subpart regulates the procedures that the Office of
Personnel Management will follow upon the receipt of claims arising out
of State court orders awarding former spouse survivor annuities under
CSRS or FERS (including the FERS basic employee death benefit as
defined in § 843.602 of this chapter). OPM must comply with qualifying
court orders, decrees, or court-approved property settlements in
connection with divorces, annulments of marriages, or legal separations
of employees or retirees that award former spouse survivor annuities.
(b) This subpart prescribes--
(1) The commencing and terminating dates of former spouse
survivor annuities based on court orders acceptable for processing; and
(2) The procedures that a former spouse must follow when applying
for a former spouse survivor annuity based on a court order under section
8341(h) or section 8445 of title 5, United States Code.
(c)(1) Subpart H of this part contains the rules that a court order
must satisfy to be a court order acceptable for processing to award a
former spouse survivor annuity.
(2) Subpart I of this part contains definitions that OPM uses to
determine the effect of a court order in connection with a former spouse
survivor annuity.
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LIMITATIONS ON LIMITATIONS ON SURVIVOR ANNUITIES
SURVIVOR ANNUITIES
§ 838.711 Maximum § 838.711 Maximum former spouse survivor annuity.
former spouse survivor
annuity.
(a) Under CSRS, payments under a court order may not exceed the
amount provided in § 831.614 of this chapter.
(b) Under FERS, payments under a court order may not exceed
amount provided in § 842.613 of this chapter plus the basic employee
death benefit as defined in § 843.102 of this chapter.
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APPLICATION AND APPLICATION AND PROCESSING PROCEDURES
PROCESSING
PROCEDURES
§ 838.721 Application § 838.721 Application requirements.
requirements.
(a)(1) A former spouse (personally or through a representative) must
apply in writing to be eligible for a former spouse survivor annuity based
on a court order acceptable for processing. No special form is required
to give OPM notice of the court order.
(2) OPM may require an additional application after the death of the
employee, separated employee, or retiree. This additional application
will be on a form prescribed by OPM.
(b)(1) The application letter under paragraph (a)(1) of this section
must be accompanied by--
(i) A certified copy of the court order;
(ii) A certification from the former spouse or the former spouse's
representative that the court order is currently in force and has not been
amended, superseded, or set aside;
(iii) Information sufficient for OPM to identify the employee or
retiree, such as his or her full name, CSRS or FERS claim number, date
of birth, and social security number;
(iv) The current mailing address of the former spouse;
(v) If the employee has not retired or died, the mailing address of
the employee; and
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Former Spouse Survivor Annuities
§ 838.722 OPM action on
receipt of a court order
acceptable for processing.
(vi) A statement in the form prescribed by OPM certifying--
(A) That the former spouse has not remarried before age 55;
(B) That the former spouse will notify OPM within 15 calendar days
of the occurrence of any remarriage before age 55; and
(C) That the former spouse will be personally liable for any
overpayment to him or her resulting from a remarriage before age 55.
(2) OPM may subsequently require recertification of the statements
required by this paragraph.
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§ 838.722 OPM action on receipt of a court order acceptable for
processing.
(a) If OPM receives a court order acceptable for processing that
awards a former spouse survivor annuity based on the service of a living
retiree, OPM will inform--
(1) The former spouse--
(i) That the court order is acceptable for processing;
(ii) Of the date on which OPM received the court order; and
(iii) Of the present amount of the monthly former spouse survivor
annuity if the retiree were to die immediately and the formula OPM used
to compute the monthly benefit; and
(2) The retiree--
(i) That the former spouse has applied for benefits under this
subpart;
(ii) That the court order is acceptable for processing and that OPM
must comply with the court order;
(iii) Of the date on which OPM received the court order;
(iv) Of the amount and commencing date of the reduction in the
retiree's annuity;
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Former Spouse Survivor Annuities
(v) Of the present amount of the monthly former spouse survivor
annuity if the retiree were to die immediately and the formula OPM used
to compute the amount of the former spouse survivor annuity; and
(vi) That, if he or she contests the validity of the court order, he or
she must obtain, and submit to OPM, a court order invalidating the court
order submitted by the former spouse.
(b) If OPM receives a court order acceptable for processing that
awards a former spouse survivor annuity, but the employee, separated
employee, or retiree has died, OPM will inform--
(1) The former spouse--
(i) That the court order is acceptable for processing;
(ii) Of the date on which OPM received the court order, the date on
which the former spouse's benefit will begin to accrue, and if known the
date on which OPM will commence payment under the court order; and
(iii) Of the amount on the monthly former spouse survivor annuity
and the formula OPM used to compute the former spouse survivor
annuity.
(2) Anyone whom OPM knows will be adversely affected by the
court order--
(i) That the former spouse has applied for benefits under this
subpart;
(ii) That the court order is acceptable for processing and that OPM
must comply with the court order;
(iii) Of the date on which OPM received the court order;
(iv) How the court order may adversely affect him or her; and
(v) That, if he or she contests the validity of the court order, he or
she must obtain, and submit to OPM, a court order invalidating the court
order submitted by the former spouse.
(c) If OPM receives a court order acceptable for processing that
awards a former spouse survivor annuity and the employee or separated
employee has not retired or died, OPM will attempt to inform--
(1) The former spouse--
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Former Spouse Survivor Annuities
(i) That the court order is acceptable for processing;
(ii) To the extent possible, the formula that OPM will use to
compute the former spouse survivor annuity (including the FERS basic
employee death benefit as defined in § 843.602 of this chapter, if
applicable); and
(iii) That, if he or she disagrees with the formula, he or she must
obtain, and submit to OPM, an amended court order clarifying the
amount before the employee or separated employee retires or dies; and
(2) The employee or separated employee--
(i) That the former spouse has applied for benefits under this
subpart;
(ii) That the court order is acceptable for processing and that OPM
must comply with the court order;
(iii) To the extent possible, the formula that OPM will use to
compute the former spouse survivor annuity (including the FERS basic
employee death benefit as defined in § 843.602 of this chapter, if
applicable); and
(iv) That, if he or she--
(A) Contests the validity of the court order, he or she must obtain,
and submit to OPM, a court order invalidating the court order submitted
by the former spouse; or
(B) Disagrees with the formula, he or she must obtain, and submit
to OPM, an amended court order clarifying the amount before he or she
retires or dies.
(d) The failure of OPM to provide, or of the employee, separated
employee, or retiree, the former spouse, or anyone else to receive, the
information specified in this section does not affect--
(1) The validity of payment under the court order; or
(2) The commencing date of the reduction in the employee annuity
or the commencing date of the former spouse's entitlement as determined
under § 838.731.
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Former Spouse Survivor Annuities
§ 838.723 OPM action on
receipt of a court order
not acceptable for
processing.
§ 838.724 Contesting the
validity of court orders.
§ 838.725 Effect on
employee and retiree
election rights.
§ 838.723 OPM action on receipt of a court order not acceptable for
processing.
If OPM receives an application from a former spouse not based on a
court order acceptable for processing, OPM will inform the former
spouse that OPM cannot approve the application and provide the specific
reason(s) for disapproving the application. Examples of reasons for
disapproving an application include that the order does not meet the
definition of court order in § 838.103 or does not meet one or more of the
requirements of subpart H of this part.
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§ 838.724 Contesting the validity of court orders.
(a) An employee, retiree or person adversely affected by a court
order who alleges that a court order is invalid must prove the invalidity of
the court order by submitting to OPM a court order that--
(1) Declares invalid the court order submitted by the former spouse;
or
(2) Sets aside the court order submitted by the former spouse.
(b) OPM must honor a court order acceptable for processing that
appears to be valid and that the former spouse has certified is currently in
force and has not been amended, superseded, or set aside, until the
employee, separated employee, retiree, or person adversely affected by
the court order submits to OPM a court order described in paragraph (a)
of this section or, if issued before the retirement or death of the employee
or separated employee, a court order acceptable for processing amending
or superseding the court order submitted by the former spouse.
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§ 838.725 Effect on employee and retiree election rights.
(a) A court order acceptable for processing that awards a former
spouse survivor annuity does not affect a retiring employee's or retiree's
rights and obligations to make survivor elections under subpart F of part
831 of this chapter or subpart F of part 842 of this chapter.
(b) A court order acceptable for processing that awards a former
spouse survivor annuity requires OPM to pay a former spouse survivor
annuity and prevents OPM from paying an elected survivor benefit to a
widow or widower or another former spouse if the election is inconsistent
with the court order.
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Former Spouse Survivor Annuities
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PAYMENT
PROCEDURES
PAYMENT PROCEDURES
§ 838.731 Commencing
date of payments.
§ 838.731 Commencing date of payments.
(a) A former spouse survivor annuity based on a court order
acceptable for processing begins to accrue in accordance with the terms
of the court order but no earlier than the later of--
(1) The first day after the date of death of the employee, separated
employee, or retiree; or
(2) The first day of the second month after OPM receives a copy of
the court order acceptable for processing.
(b) OPM will not authorize payment of the former spouse survivor
annuity until it receives an application and supporting documentation
required under § 838.721.
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§ 838.732 Termination of
entitlement.
§ 838.732 Termination of entitlement.
(a) A former spouse survivor annuity (other than the FERS basic
employee death benefit as defined in § 843.602 of this chapter) or the
right to a future former spouse survivor annuity based on a court order
acceptable for processing terminates in accordance with the terms of the
court order but no later than the last day of the month before the former
spouse remarries before age 55 or dies.
(b) If the employee dies before the former spouse remarries before
age 55 or dies, the former spouse's entitlement to the FERS basic
employee death benefit as defined in § 843.602 of this chapter based on a
court order acceptable for processing terminates in accordance with the
terms of the court order.
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§ 838.733 Rights of
current and other former
spouses after termination
of a former spouse's
entitlement.
§ 838.733 Rights of current and other former spouses after
termination of a former spouse's entitlement.
(a) If a former spouse of a retiree loses entitlement to a former
spouse survivor annuity based on a court order acceptable for processing
while the retiree is living and--
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Retirement Regulations
Procedures for Processing Court Orders Awarding
Former Spouse Survivor Annuities
(1) If court orders acceptable for processing award former spouse
survivor annuities to other former spouses, OPM will continue the
reduction to comply with court orders in the order specified in § 838.135;
(2) If paragraph (a)(1) of this section does not obligate the entire
entitlement lost by the former spouse, OPM will continue the reduction to
provide a current spouse survivor annuity or a former spouse survivor
annuity based on a timely-filed election under § 831.604, § 831.605,
§ 831.612, § 831.613, § 842.603, § 842.604, § 842.611, or § 842.612 of
this chapter; or
(3) If paragraphs (a)(1) and (a)(2) of this section do not obligate the
entire entitlement lost by the former spouse, the retiree (except a retiree
under CSRS who retired before May 7, 1985 and who remarried before
February 27, 1986) may elect within 2 years after the former spouse loses
entitlement to continue the reduction to provide a survivor annuity for a
spouse acquired after retirement.
(b)(1) If a former spouse of an employee or retiree loses entitlement
to a former spouse survivor annuity based on a court order acceptable for
processing after the death of the employee or retiree and--
(i) If court orders acceptable for processing award former spouse
survivor annuities to other former spouses, OPM will pay the next
entitled former spouse in the order specified in § 838.135; or
(ii) If paragraph (b)(1) of this section does not obligate the entire
entitlement lost by the former spouse, OPM will pay the balance to a
current spouse of the deceased--
(A) Retiree who had elected a reduced annuity to provide a current
spouse annuity (as defined in § 831.603 or § 842.602); or
(B) Employee.
(2) Except as provided in § 838.734--
(i) The former spouse survivor annuity based on paragraph (b)(1)(i)
of this section begins to accrue in accordance with the terms of the court
order but no earlier than the later of--
(A) The first day of the month in which the former spouse with the
earlier-issued court order loses entitlement; or
(B) The first day of the second month after OPM receives a copy of
the court order acceptable for processing; or
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Former Spouse Survivor Annuities
(ii) The current spouse annuity under paragraph (b)(1)(ii) of this
section begins to accrue on the first day of the month in which the former
spouse loses entitlement.
(c) OPM will not authorize payment of the former spouse survivor
annuity until it receives an application and supporting documentation
required under § 838.721.
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§ 838.734 Payment of § 838.734 Payment of lump-sum awards by survivor annuity.
lump-sum awards by
survivor annuity.
OPM will not honor court orders awarding lump-sum payments
(other than the FERS basic employee death benefit as defined in
§ 843.602 of this chapter) to a former spouse upon the death of an
employee or retiree.
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§ 838.735 Cost-of-living § 838.735 Cost-of-living adjustments.
adjustments.
(a) OPM applies cost-of-living adjustments to all former spouse
survivor annuities in pay status at the time of the adjustment and in the
amount provided by Federal statute.
(b) OPM will not honor provisions of a court order that alters the
time or amount of cost-of-living adjustments or that attempts to prevent
OPM from applying cost-of-living adjustments to a former spouse
survivor annuity in pay status.
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Requirements for Court Orders Awarding
Former Spouse Survivor Annuities
Subpart H--
Requirements for Court
Orders Awarding Former
Spouse Survivor
Annuities
Subpart H--Requirements for Court Orders Awarding Former
Spouse Survivor Annuities
§ 838.801 Purpose and § 838.801 Purpose and scope.
scope.
This subpart regulates the requirements that a court order awarding
a former spouse survivor annuity must meet to be a court order
acceptable for processing.
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§ 838.802 CSRS
limitations.
§ 838.802 CSRS limitations.
(a) A court order awarding a former spouse survivor annuity under
CSRS is not a court order acceptable for processing unless the marriage
terminated on or after May 7, 1985.
(b) In the case of a retiree who retired under CSRS before May 7,
1985, a court order awarding a former spouse survivor annuity under
CSRS is not a court order acceptable for processing unless the retiree was
receiving a reduced annuity to provide a survivor annuity to benefit that
spouse on May 7, 1985.
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§ 838.803 Language not
acceptable for processing.
§ 838.803 Language not acceptable for processing.
Qualifying Domestic
Relations Orders.
(a) Qualifying Domestic Relations Orders. (1) Any court order
labeled as a "qualified domestic relations order" or issued on a form for
ERISA qualified domestic relations orders is not a court order acceptable
for processing unless the court order expressly states that the provisions
of the court order concerning CSRS or FERS benefits are governed by
this part.
(2) When a court order is required by paragraph (a)(1) of this
section to state that the provisions of a court order concerning CSRS or
FERS benefits are governed by this part the court order must--
(i) Expressly refer to part 838 of Title 5, Code of Federal
Regulations, and
(ii) Expressly state that the provisions of the court order concerning
CSRS or FERS benefits are drafted in accordance with the terminology
used in this part.
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Former Spouse Survivor Annuities
Employee annuity cannot
continue after the death of
the retiree.
§ 838.804 Court orders
must expressly award a
former spouse survivor
annuity or expressly
direct an employee or
retiree to elect to provide
a former spouse survivor
annuity.
(3) Although any language satisfying the requirement of paragraph
(a)(2) of this section is sufficient to prevent a court order from being
unacceptable under paragraph (a)(1) of this section, OPM recommends
the use of the language provided in ¶001 in appendix A to subpart F of
this part to state that the provisions of the court order concerning CSRS
or FERS benefits are governed by this part.
(4) A court order directed at employee annuity that contains the
language described in paragraph (a)(2) of this section must also satisfy all
other requirements of this subpart to be a court order acceptable for
processing.
(b) Employee annuity cannot continue after the death of the retiree.
Any court order that provides that the former spouse's portion of the
employee annuity shall continue after the death of the employee or
retiree, by using language such as "will continue to receive benefits after
the death of" the employee, that the former spouse "will continue to
receive benefits for his (or her) lifetime," or "that benefits will continue
after the death of" the employee, but does not use terms such as "survivor
annuity," "death benefits," "former spouse annuity," or similar terms is
not a court order acceptable for processing.
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§ 838.804 Court orders must expressly award a former spouse
survivor annuity or expressly direct an employee or retiree to
elect to provide a former spouse survivor annuity.
(a) A court order awarding a former spouse survivor annuity is not a
court order acceptable for processing unless it expressly awards a former
spouse survivor annuity or expressly directs an employee or retiree to
elect to provide a former spouse survivor annuity as described in
paragraph (b) of this section.
(b) To expressly award a former spouse survivor annuity or
expressly direct an employee or retiree to elect to provide a former
spouse survivor annuity as required by paragraph (a) of this section the
court order must--
(1) Identify the retirement system using terms that are sufficient to
identify the retirement system as explained in § 838.911; and
(2)(i) Expressly state that the former spouse is entitled to a former
spouse survivor annuity using terms that are sufficient to identify the
survivor annuity as explained in § 838.912; or
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Requirements for Court Orders Awarding
Former Spouse Survivor Annuities
§ 838.805 OPM
computation of formulas
in computing the
designated base.
§ 838.806 Amended court
orders.
(ii) Expressly direct the retiree to elect to provide a former spouse
survivor annuity using terms that are sufficient to identify the survivor
annuity as explained in § 838.912.
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§ 838.805 OPM computation of formulas in computing the
designated base.
(a) A court order awarding a former spouse survivor annuity is not a
court order acceptable for processing unless the court order provides
sufficient instructions and information so that OPM can determine the
amount of the former spouse's monthly benefit using only the express
language of the court order, subparts A, G and I of this part, and
information from normal OPM files.
(b) To provide sufficient instructions and information for OPM to
compute the amount of a former spouse survivor annuity as required by
paragraph (a) of this section, if the court order uses a formula to
determine the former spouse survivor annuity, it must not use any
variables whose values are not readily ascertainable from the face of the
court order or normal OPM files.
(c) A court order awarding a former spouse survivor annuity is not a
court order acceptable for processing if OPM would have to examine a
State statute or court decision (on a different case) to understand,
establish, or evaluate the formula for computing the former spouse
survivor annuity.
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§ 838.806 Amended court orders.
(a) A court order awarding a former spouse survivor annuity is not a
court order acceptable for processing if it is issued after the date of
retirement or death of the employee and modifies or replaces the first
order dividing the marital property of the employee or retiree and the
former spouse.
(b) For purposes of awarding, increasing, reducing, or eliminating a
former spouse survivor annuity, or explaining, interpreting, or clarifying
a court order that awards, increases, reduces or eliminates a former
spouse survivor annuity, the court order must be--
(1) Issued on a day prior to the date of retirement or date of death of
the employee; or
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Requirements for Court Orders Awarding
Former Spouse Survivor Annuities
(2) The first order dividing the marital property of the retiree and
the former spouse.
(c) A court order that awards a former spouse survivor annuity and
that is issued after the first order dividing the marital property of the
retiree and the former spouse has been vacated, set aside, or otherwise
declared invalid is not a court order acceptable for processing if--
(1) It is issued after the date of retirement or death of the retiree;
(2) It changes any provision concerning a former spouse survivor
annuity in the court order that was vacated, set aside or otherwise
declared invalid; and
(3)(i) The court order is effective prior to the date when it is issued;
or
(ii) The retiree and former spouse do not compensate the Civil
Service Retirement and Disability Fund for any uncollected annuity
reduction due as a result of the court order vacating, setting aside, or
otherwise invalidating the first order terminating the marital relationship
between the retiree and the former spouse.
(d) In this section, "date of retirement" means the later of--
(1) The date that the employee files an application for retirement; or
(2) The effective commencing date for the employee's annuity.
(e) In this section, "issued" means actually filed with the clerk of the
court, and does not mean the effective date of a retroactive court order
that is effective prior to the date when actually filed with the clerk of the
court (e.g., a court order issued nunc pro tunc).
(f)(1) In this section, the "first order dividing the marital property of
the retiree and the former spouse" means--
(i) The original written order that first ends (or first documents an
oral order ending) the marriage if the court divides any marital property
(or approves a property settlement agreement that divides any marital
property) in that order, or in any order issued before that order; or
(ii) The original written order issued after the marriage has been
terminated in which the court first divides any marital property (or first
approves a property settlement agreement that divides any marital
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Former Spouse Survivor Annuities
property) if no marital property has been divided prior to the issuance of
that order.
(2) The first order dividing marital property does not include--
(i) Any court order that amends, explains, clarifies, or interprets the
original written order regardless of the effective date of the court order
making the amendment, explanation, clarification, or interpretation; or
(ii) Any court order issued under reserved jurisdiction or any other
court orders issued subsequent to the original written order that divide any
marital property regardless of the effective date of the court order.
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§ 838.807 Cost must be § 838.807 Cost must be paid by annuity reduction.
paid by annuity
reduction.
(a) A court order awarding a former spouse survivor annuity is not a
court order acceptable for processing unless it permits OPM to collect the
annuity reduction required by section 8339(j)(4) or section 8419 of title 5,
United States Code, from annuity paid by OPM. OPM will not honor a
court order that provides for the retiree or former spouse to pay OPM the
amount of the annuity reduction by any other means.
(b) The amount of the annuity reduction required by section
8339(j)(4) or section 8419 of title 5, United States Code, may be paid--
(1) By reduction of the former spouse's entitlement under a court
order acceptable for processing that is directed at employee annuity; or
(2) By reduction of the employee annuity.
(c) Unless the court order otherwise directs, OPM will collect the
annuity reduction required by section 8339(j)(4) or section 8419 of title 5,
United States Code, from the employee annuity.
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Terminology Used in Court Orders Awarding
Former Spouse Survivor Annuities
Subpart I--Terminology
Used in Court Orders
Awarding Former Spouse
Survivor Annuities
Subpart I--Terminology Used in Court Orders Awarding Former
Spouse Survivor Annuities
REGULATORY
STRUCTURE
REGULATORY STRUCTURE
§ 838.901 Purpose and
scope.
§ 838.901 Purpose and scope.
(a) This subpart regulates the meaning of terms necessary to award
a former spouse survivor annuity in a court order, and for OPM to
determine whether a court order awarding a former spouse survivor
annuity is a court order acceptable for processing and the amount of the
former spouse survivor annuity.
(b)(1) This subpart establishes a uniform meaning to be used for
terms and phrases frequently used in awarding a former spouse survivor
annuity.
(2) This subpart informs the legal community about the definition to
be applied to terms used in court orders, to permit the resulting orders to
be more carefully drafted, using the proper language to accomplish the
aims of the court.
(c)(1) To assist attorneys and courts in preparing court orders that
OPM can honor in the manner that the court intends, Appendix A of this
subpart contains model language to accomplish many of the more
common objectives associated with the award of a former spouse survivor
annuity.
(2) By using the language in Appendix A of this subpart, the court,
attorneys, and parties will know that the court order will be acceptable for
processing and that OPM will treat the terminology used in the court
order in the manner stated in the Appendix.
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IDENTIFICATION OF IDENTIFICATION OF BENEFITS
BENEFITS
§ 838.911 Identifying the
retirement system.
§ 838.911 Identifying the retirement system.
(a) To satisfy the requirements of § 838.804(b)(1), a court order
must contain language identifying the retirement system affected. For
example, "CSRS," "FERS," "OPM," or "Federal Government" survivor
benefits, or "survivor benefits payable based on service with the U.S.
Department of Agriculture," etc., are sufficient identification of the
retirement system.
(b) Except as provided in paragraphs (b)(1) and (b)(2) of this
section, language referring to benefits under another retirement system,
such as military retired pay, Foreign Service retirement benefits and
Central Intelligence Agency retirement benefits, does not satisfy the
requirements of § 838.804(b)(1).
(1) A court order that mistakenly labels CSRS benefits as FERS
benefits and vice versa satisfies the requirements of § 838.804(b)(1).
(2) Unless the court order expressly provides otherwise, for
employees transferring to FERS, court orders directed at CSRS benefits
apply to the entire FERS basic benefit, including the CSRS component, if
any. Such a court order satisfies the requirements of § 838.804(b)(1).
(c) A court order affecting military retired pay, even when military
retired pay has been waived for inclusion in CSRS annuities, does not
award a former spouse survivor annuity under CSRS or FERS. Such a
court order does not satisfy the requirements of § 838.804(b)(1).
(d) A court order that requires an employee or retiree to maintain
survivor benefits covering the former spouse satisfies the requirements of
§ 838.804(b)(1), if the former spouse was covered by a CSRS or FERS
survivor annuity or the FERS basic employee death benefit as defined in
§ 843.602 of this chapter at the time of the divorce.
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§ 838.912 Specifying an
award of a former spouse
survivor annuity.
§ 838.912 Specifying an award of a former spouse survivor annuity.
(a) To satisfy the requirements of § 838.804(b)(2), a court order
must specify that it is awarding a former spouse survivor annuity. The
court order must contain language such as "survivor annuity," "death
benefits," "former spouse survivor annuity under 5 U.S.C. 8341(h)(1),"
etc.
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(b)(1) A court order that provides that the former spouse is to
"continue as" or "be named as" the beneficiary of CSRS survivor benefits
or similar language satisfies the requirements of § 838.804(b)(2).
(2) A court order that requires an employee or retiree to maintain
survivor benefits covering the former spouse satisfies the requirements of
§ 838.804(b)(2), if the former spouse was covered by a CSRS or FERS
survivor annuity or the FERS basic employee death benefit as defined in
§ 843.602 of this chapter at the time of the divorce.
(c) Two types of potential survivor annuities may be provided by
retiring employees to cover former spouses. Under CSRS, section
8341(h) of title 5, United States Code, provides for "former spouse
survivor annuities" and section 8339(k) of title 5, United States Code,
provides for "insurable interest annuities." These are distinct benefits,
each with its own advantages. The corresponding FERS provisions are
sections 8445 and 8444, respectively.
(1) OPM will enforce court orders to provide section 8341(h) or
section 8445 annuities. These annuities are less expensive and have fewer
restrictions than insurable interest annuities but the former spouse's
interest will automatically terminate upon remarriage before age 55. To
provide a section 8341(h) or section 8445 annuity, the court order must
use terms such as "former spouse survivor annuity," "section 8341(h)
annuity," or "survivor annuity."
(2) OPM cannot enforce court orders to provide "insurable interest
annuities" under section 8339(k) or section 8444. These annuities may
only be elected at the time of retirement by a retiring employee who is not
retiring under the disability provision of the law and who is in good
health. The retiree may also elect to cancel the insurable interest annuity
to provide a survivor annuity for a spouse acquired after retirement. The
parties might seek to provide this type of annuity interest if the
nonemployee spouse expects to remarry before age 55, if the employee
expects to remarry a younger second spouse before retirement, or if
another former spouse has already been awarded a section 8341(h)
annuity. However, the court will have to provide its own remedy if the
employee is not eligible for or does not make the election. OPM cannot
enforce the court order. Language including the words "insurable
interest" or referring to section 8339(k) or section 8444 does not satisfy
the requirements of § 838.804(b)(2).
(3) In court orders which contain internal contradictions about the
type of annuity, such as "insurable interest annuity under section
8341(h)," the section reference will control.
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COMPUTATION OF
BENEFIT
COMPUTATION OF BENEFIT
§ 838.921 Determining
the amount of a former
spouse survivor annuity.
§ 838.921 Determining the amount of a former spouse survivor
annuity.
(a) A court order that contains no provision stating the amount of the
former spouse survivor annuity provides the maximum former spouse
survivor annuity permitted under § 831.614 or § 842.613 of this chapter
and satisfies the requirements of § 838.805.
(b)(1) A court order that provides that "a former spouse will keep"
or "an employee or retiree will maintain" the survivor annuity to which
he or she was entitled at the time of the divorce satisfies the requirements
of § 838.805 and provides a former spouse survivor annuity in the same
proportion to the maximum survivor annuity under § 831.614 or
§ 842.613 of this chapter as the former spouse had at the time of divorce.
For example, a former spouse of an employee would be entitled to the
maximum survivor benefit; a former spouse of a retiree (who was
married to the retiree at retirement and continuously until the divorce
resulting in the court order) would be entitled to the survivor benefit
elected at retirement.
(2) If, at the time of divorce, the employee covered by FERS had at
least 18 months of civilian service creditable under FERS but less than 10
years of service creditable under FERS, a former spouse with a court
order described in paragraph (b)(1) or paragraph (b)(2) of this section
may be entitled to the basic employee death benefit as defined in
§ 843.602 of this chapter, but is not entitled to any other former spouse
survivor annuity based on the court order.
(c)(1) A court order that awards a former spouse survivor annuity of
less than $12 per year satisfies the requirements of § 838.805 and
provides an initial rate of $1 per month plus all cost-of-living increases
occurring after the later of--
(i) The date of the court order; or
(ii) The date when the employee retires.
(2) The reduction in the employee annuity will be computed as
though the court order provided a former spouse survivor annuity of $1
per month.
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§ 838.922 Prorata share
defined.
(d)(1) A court order that awards a former spouse survivor annuity
while authorizing the employee or retiree to elect a lesser former spouse
survivor annuity upon the employee's or retiree's remarriage satisfies the
requirements of § 838.805, and provides the former spouse survivor
annuity at the rate initially provided in the court order but does not allow
the employee or retiree to elect a lesser benefit for the former spouse.
(2) To provide full survivor annuity benefits to a former spouse
while authorizing the employee or retiree to elect a lesser former spouse
survivor annuity benefit in order to provide survivor annuity benefits for a
subsequent spouse, the court order must provide for a reduction in the
former spouse survivor annuity upon the employee's or retiree's election
of survivor annuity benefits for a subsequent spouse.
(3) A reduction in the amount of survivor benefits provided to the
former spouse does not satisfy the requirements of § 838.805 if it is
contingent upon the employee's or annuitant's remarriage rather than his
or her election of survivor annuity benefits for a subsequent spouse.
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§ 838.922 Prorata share defined.
(a) "Prorata share" means the fraction of the maximum survivor
annuity allowable under § 831.614 or § 842.613 of this chapter whose
numerator is the number of months of Federal civilian and military
service that the employee performed during the marriage and whose
denominator is the total number of months of Federal civilian and military
service performed by the employee.
(b) A court order that awards a former spouse a "prorata share" of a
survivor annuity by using that term and identifying the date when the
marriage began satisfies the requirements of § 838.805 and awards the
former spouse a former spouse survivor annuity equal to the prorata share
as defined in paragraph (a) of this section.
(c) A court order that awards a portion of a survivor annuity, as of a
specified date before the employee's retirement, awards the former
spouse a former spouse survivor annuity equal to the prorata share as
defined in paragraph (a) of this section.
(d) A court order that awards a portion of the "value" of a survivor
annuity as of a specific date before retirement, without specifying what
"value" is, awards the former spouse a former spouse survivor annuity
equal to a prorata share as defined in paragraph (a) of this section.
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§ 838.923 Cost-of-living § 838.923 Cost-of-living adjustment before the death of a retiree.
adjustment before the
death of a retiree.
A court order that awards a former spouse survivor annuity is
deemed to order OPM to add to the survivor annuity rate cost-of-living
adjustments that occur before the death of a retiree (in the same manner
as these adjustments are applied to the survivor rate generally) unless the
court order contains an instruction expressly directing OPM not to add
these adjustments to the survivor annuity rate. (See § 838.735 for
information concerning cost-of-living adjustments after the death of an
employee or retiree.)
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MISCELLANEOUS MISCELLANEOUS PROVISIONS
PROVISIONS
§ 838.931 Court orders § 838.931 Court orders that provide temporary awards of former
that provide temporary spouse survivor annuities.
awards of former spouse
survivor annuities.
A provision in a court order that temporarily awards a former
spouse survivor annuity satisfies the requirements of § 581.804(b)(2), but
the temporary award becomes permanent on the date on which OPM is
barred from honoring a modification of the court order (the date of
retirement or death, or, in the case of a post-retirement divorce, the date
of the initial court order), as provided in sections 8341(h)(4) and 8445(d)
of title 5, United States Code.
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§ 838.932 Court orders § 838.932 Court orders that permit the former spouse to elect to
that permit the former receive a former spouse survivor annuity.
spouse to elect to receive a
former spouse survivor
(a) Except as provided in paragraph (b) of this section, a court order
annuity.
that gives the former spouse the right to elect a former spouse survivor
annuity satisfies the requirements of § 838.804(b)(2) and provides a
former spouse survivor annuity in the amount otherwise provided by the
court order.
(b) A former spouse who has been awarded a former spouse
survivor annuity by a court order that gives the former spouse the right to
elect a former spouse survivor annuity may irrevocably elect not to be
eligible for a former spouse survivor annuity based on the court order.
(c) The former spouse may make the election under paragraph (b)
of this section at any time after the issuance
of the court order. An election under paragraph (b) of this section--
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(1) Must be in writing and in the form prescribed by OPM;
(2) Is effective on the first day of the month following the month in
which OPM receives the election; and
(3) Is irrevocable once it has become effective.
(d) The reduction in an employee annuity based on a court order that
gives the former spouse the right to elect a former spouse survivor
annuity terminates on the last day of the month in which OPM receives
the former spouse's election under paragraph (b) of this section.
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§ 838.933 Payment of the § 838.933 Payment of the cost of a former spouse survivor annuity.
cost of a former spouse
survivor annuity.
(a) A court order that unequivocally awards a former spouse
survivor annuity and directs the former spouse to pay for that benefit
satisfies the requirements of § 838.805, and--
(1) If the former spouse has also been awarded a portion of the
employee annuity then the cost of the survivor benefit will be deducted
from the former spouse's share of the employee annuity (if sufficient to
cover the total cost--there will be no partial withholding); otherwise,
(2) The reduction will be taken from the employee annuity and
collection from the former spouse will be a private matter between the
parties.
(b) A court order that conditions the award of a former spouse
survivor annuity on the former spouse's payment of the cost of the benefit
satisfies the requirements of § 838.805 only if a court order acceptable
for processing also awards the former spouse a portion of the employee
annuity sufficient to cover the cost.
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Model Paragraphs
MODEL PARAGRAPHS MODEL PARAGRAPHS
Appendix A to Subpart I
of Part 838--
Recommended Language
for Court Orders
Awarding Former Spouse
Survivor Annuities.
Appendix A to Subpart I of Part 838--Recommended Language for
Court Orders Awarding Former Spouse Survivor Annuities.
This appendix provides recommended language for use in court
orders awarding former spouse survivor annuities. A former spouse
survivor annuity is not a continuation of a former spouse's share of an
employee annuity after the death of the employee. A former spouse's
entitlement to a portion of an employee annuity cannot continue after the
death of the employee. A court order that attempts to extend the former
spouse's entitlement to a portion of an employee annuity past the death of
the employee is not effective. The model language in this appendix does
not award benefits payable to the former spouse during the lifetime of the
employee. A separate, distinct award of a portion of the employee
annuity is necessary to award a former spouse a benefit during the
lifetime of the employee. Appendix A to subpart F of this part contains
model language for a portion of an employee annuity.
Attorneys should exercise great care in preparing provisions
concerning former spouse survivor annuities because sections 8341(h)(4)
and 8445(d) of title 5, United States Code, prohibit OPM from accepting
modifications after the retirement or death of the employee. (See
§ 838.806 concerning unacceptable modifications.) A court order
awarding a former spouse survivor annuity should include four elements:
! Identification of the retirement system;
! Explicit award of the former spouse survivor annuity;
! Method for computing the amount of the former spouse's benefit;
and
! Instructions on what OPM should do if the employee leaves
Federal service before retirement and applies for a refund of employee
contributions.
By using the model language, courts will know that the court order will
have the effect described in this appendix.
The model language uses the terms "[former spouse]" to identify the
spouse who is receiving a former spouse survivor annuity and
"[employee]" to identify the Federal employee whose employment was
covered by the Civil Service Retirement System or the Federal
Employees Retirement System. Obviously, in drafting an actual court
order the appropriate terms, such as "Petitioner" and "Respondent," or
the names of the parties should replace "[former spouse]" and
"[employee]."
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Similarly, except when the provision applies only to the basic
employee death benefit (defined in § 843.103 of this chapter) that is
available only under the Federal Employees Retirement System, the
models are drafted for employees covered by the Civil Service
Retirement System (5 U.S.C. 8331 et seq.). The name of the retirement
system should be changed for employees covered by the Federal
Employees Retirement System (5 U.S.C. chapter 84.).
Statutory references used in the models are to CSRS provisions
(such as section 8341(h) of title 5, United States Code). When
appropriate, the corresponding FERS provision (such as section 8445 of
title 5, United States Code) should be used.
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TABLE OF CONTENTS TABLE OF CONTENTS
700 Series--Computing the amount of the former spouse's benefit.
¶701 Award of the maximum survivor annuity.
¶702 Award that continues the pre-divorce survivor annuity benefits.
¶703 Award of a prorata share.
¶704 Award of a fixed monthly amount.
¶705-710 [Reserved].
¶711 Award of a percentage or fraction of the employee annuity.
¶712 Award based on a stated formula as a share of employee annuity.
¶713-720 [Reserved].
¶721 Award of a percentage or fraction of the maximum survivor
annuity.
¶722 Award based on a stated formula as a share of maximum survivor
annuity.
¶723-750 [Reserved].
¶751 Changing amount of former spouse survivor annuity based on
remarriage before retirement.
¶752 Changing amount of former spouse survivor annuity based on
remarriage after retirement.
800 Series--Paying the cost of a former spouse survivor annuity.
¶801 Costs to be paid from the employee annuity.
¶802 Costs to be paid from former spouse's share of the employee
annuity.
900 Series--Refunds of employee contributions.
¶901 Barring payment of a refund of employee contributions.
¶902 Dividing a refund of employee contributions.
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700 Series--Computing
the amount of the former
spouse's benefit.
¶701 Award of the
maximum survivor
annuity.
For a spouse who was married to
a retiree at the time of retirement
and consented to an election of
less than a full survivor annuity,
the maximum is the amount
elected at retirement. For a
spouse acquired after retirement
and for whom the retiree elected
less than the maximum survivor
benefit, this language should be
used only if the intent is to
increase the survivor benefit to
the maximum.
700 Series--Computing the amount of the former spouse's benefit.
Paragraphs 701 through 704 contain model language for awards of
former spouse survivor annuities in amounts that do not require
specification of the base on which the former spouse's share will be
computed. Situations in which the computational base need not be
specified include amounts defined by law or regulation. For example, the
maximum former spouse survivor annuity is fixed by statute generally at
55 percent of the employee annuity under CSRS and 50 percent of the
employee annuity under FERS.
Paragraphs 711 and 712 contain model language for awards of
former spouse survivor annuities that use the employee annuity as the
base on which the portion awarded will be computed (that is, on which
percentage, fraction or formula will be applied). Paragraphs 721 and 722
contain model language for awards of former spouse survivor annuities
that use the maximum possible survivor annuity as the base on which the
portion awarded will be computed (that is, on which percentage, fraction
or formula will be applied). Using the maximum possible survivor
annuity as the base will generally award 55 percent under CSRS and 50
percent under FERS of the amount that using the employee annuity as the
base would produce.
Paragraphs 750 and higher contain model language to implement the
most common other types of awards.
Each model paragraph includes a reference to the statutory provision
under CSRS that authorizes OPM to honor court orders awarding former
spouse survivor annuities. The FERS statutory provision that corresponds
to section 8341(h) (mentioned in the first sentence of each example) is
section 8445.
¶701 Award of the maximum survivor annuity.
Using the following paragraph will award the maximum possible
former spouse survivor annuity. Under CSRS, the maximum possible
survivor annuity is 55 percent of the employee annuity unless the
surviving spouse or former spouse was married to the retiree at
retirement and agreed to a lesser amount at that time. Under FERS, the
maximum possible survivor annuity is 50 percent of the employee annuity
unless the surviving spouse or former spouse was married to the retiree at
retirement and agreed to a lesser amount at that time.
"Under section 8341(h)(1) of title 5, United States Code, [former
spouse] is awarded the maximum possible former spouse survivor annuity
under the Civil Service Retirement System."
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¶702 Award that
continues the pre-divorce
survivor annuity benefits.
If a survivor benefit election of
less than the full amount is in
effect at the time of divorce, use
of this language will emphasize
that the lower benefit will remain
in effect after the divorce. In all
other instances this language will
produce the maximum survivor
annuity.
¶703 Award of a prorata
share.
¶704 Award of a fixed
monthly amount.
¶702 Award that continues the pre-divorce survivor annuity benefits.
Using the following paragraph will award a former spouse survivor
annuity equal to the amount that the former spouse would have received if
the marriage were never terminated by divorce.
"Under section 8341(h)(1) of title 5, United States Code, [Former
spouse] is awarded a former spouse survivor annuity under the Civil
Service Retirement System in the same amount to which [former spouse]
would have been entitled if the divorce had not occurred."
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¶703 Award of a prorata share.
Using the following paragraph will award the former spouse a
prorata share of the maximum possible survivor annuity. Prorata share is
defined in § 838.922. To award a prorata share the court order must
state the date of the marriage. Unless the court order specifies a different
ending date, the marriage ends for computation purposes on the date that
the court order is filed with the court clerk.
"Under section 8341(h)(1) of title 5, United States Code, [former
spouse] is awarded a former spouse survivor annuity under the Civil
Service Retirement System. The amount of the former spouse survivor
annuity will be equal to a prorata share. The marriage began on [insert
date]."
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¶704 Award of a fixed monthly amount.
Using the following paragraph will award a former spouse survivor
annuity that will start at the amount stated in the order when the employee
or retiree dies, unless the stated amount exceeds the maximum possible
former spouse survivor annuity. If the amount stated in the order exceeds
the maximum possible former spouse survivor annuity, the court order
will be treated as awarding the maximum. After payment of the former
spouse survivor annuity has begun, COLA's will be applied in accordance
with § 838.735. If the final sentence of this model paragraph is omitted,
OPM will add COLA's occurring after the date of the employee's
retirement or the date of issuance of the court order, whichever is later.
"Under section 8341(h)(1) of title 5, United States Code, [former
spouse] is awarded a former spouse survivor annuity under the Civil
Service Retirement System. The amount of the former spouse survivor
annuity will be equal to $[insert a number] per month. The Office of
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¶711 Award of a
percentage or fraction of
the employee annuity.
¶712 Award based on a
stated formula as a share
of employee annuity.
Personnel Management is ordered not to increase this amount by COLA's
occurring before death of [employee or retiree]."
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¶705-710 [Reserved].
¶711 Award of a percentage or fraction of the employee annuity.
Using the following paragraph will award a former spouse survivor
annuity equal to the stated percentage or fraction of the employee annuity.
The stated percentage or fraction may not exceed 55 percent under CSRS
or 50 percent under FERS.
"Under section 8341(h)(1) of title 5, United States Code, [former
spouse] is awarded a former spouse survivor annuity under the Civil
Service Retirement System. The amount of the former spouse survivor
annuity will be equal to [insert a percentage or fraction] percent of the
[employee]'s employee annuity."
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¶712 Award based on a stated formula as a share of employee
annuity.
Using the following paragraphs will award a former spouse survivor
annuity in an amount to be determined by applying a stated formula to
employee annuity. The amount of the former spouse survivor annuity
may not exceed 55 percent of the employee annuity under CSRS or 50
percent under FERS. The formula must be stated in the court order
(including a court-approved property settlement agreement). The formula
may not be incorporated by reference to a statutory provision or a court
decision in another case. If the court order uses a formula, the court
order must include any data that is necessary for OPM to evaluate the
formula unless the necessary data is contained in normal OPM files.
"Under section 8341(h)(1) of title 5, United States Code, [former
spouse] is awarded a former spouse survivor annuity under the Civil
Service Retirement System. The amount of the former spouse survivor
annuity will be the portion of the [employee]'s employee annuity
computed as follows:
"[Insert formula.]"
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¶713-720 [Reserved].
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¶721 Award of a
percentage or fraction of
the maximum survivor
¶721 Award of a percentage or fraction of the maximum survivor
annuity.
annuity.
Using the following paragraph will award a former spouse survivor
annuity equal to the stated percentage or fraction of the maximum
possible survivor annuity. The stated percentage or fraction may not
exceed 100 percent.
"Under section 8341(h)(1) of title 5, United States Code, [former
spouse] is awarded a former spouse survivor annuity under the Civil
Service Retirement System. The amount of the former spouse survivor
annuity will be equal to [insert a percentage or fraction] of the maximum
possible survivor annuity.
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¶722 Award based on a
stated formula as a share
of maximum survivor
¶722 Award based on a stated formula as a share of maximum
survivor annuity.
annuity.
Using the following paragraphs will award a former spouse survivor
annuity based on a stated formula to be applied to the maximum possible
survivor annuity. The formula must be stated in the court order
(including a court-approved property settlement agreement). The formula
may not be incorporated by reference to a statutory provision or a court
decision in another case. If the court order uses a formula, the court
order must include any data that is necessary for OPM to evaluate the
formula unless the necessary data is contained in normal OPM files.
"Under section 8341(h)(1) of title 5, United States Code, [former
spouse] is awarded a former spouse survivor annuity under the Civil
Service Retirement System. The amount of the former spouse survivor
annuity will be the portion of the maximum possible survivor annuity
computed as follows:
"[Insert formula.]"
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¶723-750 [Reserved].
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¶751 Changing amount of
former spouse survivor
annuity based on
remarriage before
retirement.
¶752 Changing amount of
former spouse survivor
annuity based on
remarriage after
retirement.
¶751 Changing amount of former spouse survivor annuity based on
remarriage before retirement.
Using the following paragraph will award the maximum possible
former spouse survivor annuity unless the employee remarries before
retirement. Upon the employee's remarriage before retirement the
amount of the former spouse survivor annuity changes to a prorata share.
The maximum possible and prorata share are used as examples only;
other amounts may be substituted. Similar language is not acceptable for
remarriages after retirement.
"Under section 8341(h)(1) of title 5, United States Code, [former
spouse] is awarded the maximum possible former spouse survivor annuity
under the Civil Service Retirement System unless [employee] remarries
before retirement. If [employee] remarries before retirement, under
section 8341(h)(1) of title 5, United States Code, [former spouse] is
awarded a former spouse survivor annuity under the Civil Service
Retirement System. The amount of the former spouse survivor annuity
will be equal to a prorata share. The marriage to [former spouse] began
on [insert date]."
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¶752 Changing amount of former spouse survivor annuity based on
remarriage after retirement.
Using the following paragraph will award the maximum possible
former spouse survivor annuity unless the employee remarries after
retirement and elects to provide a survivor annuity for the spouse
acquired after retirement. Upon the employee's remarriage after
retirement and election to provide a survivor annuity for the spouse
acquired after retirement, the amount of the former spouse survivor
annuity changes to a prorata share. The maximum possible and prorata
share are used as examples only; other amounts may be substituted. The
change in the amount of the former spouse survivor annuity must be
triggered by the election, which is a part of normal OPM files, rather
than the remarriage, which is not documented in normal OPM files.
"Under section 8341(h)(1) of title 5, United States Code, [former
spouse] is awarded the maximum possible former spouse survivor annuity
under the Civil Service Retirement System unless [employee] elects to
provide a survivor annuity for a new spouse acquired after retirement. If
[employee] elects to provide a survivor annuity to a new spouse acquired
after retirement, under section 8341(h)(1) of title 5, United States Code,
[former spouse] is awarded a former spouse survivor annuity under the
Civil Service Retirement System. The amount of the former spouse
survivor annuity will be equal to a prorata share. The marriage to
[former spouse] began on [insert date]."
107
Retirement Regulations
Model Paragraphs
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800 Series--Paying the 800 Series--Paying the cost of a former spouse survivor annuity.
cost of a former spouse
survivor annuity.
A court order awarding a former spouse survivor annuity requires
that the employee annuity be reduced. The reduction lowers the gross
employee annuity. The costs associated with providing the former spouse
survivor annuity must be paid by annuity reduction. Under § 838.807, if
the former spouse is awarded a portion of the employee annuity sufficient
to pay the cost associated with providing the survivor annuity, the former
spouse's share may be reduced to pay the cost.
¶801 Costs to be paid ¶801 Costs to be paid from the employee annuity.
from the employee
annuity.
No special provision on payment of the costs associated with
providing the former spouse survivor annuity is necessary if the court
intends the cost to be taken from the employee annuity.
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¶802 Costs to be paid ¶802 Costs to be paid from former spouse's share of the employee
from former spouse's annuity.
share of the employee
annuity.
Using the following paragraph will award the former spouse a
prorata share of the employee annuity and a prorata share of the
maximum possible survivor annuity and provide that the cost associated
with the survivor annuity be deducted from the former spouses's share of
the employee annuity. Prorata share and self-only annuity are used as
examples only; another amount or type of annuity may be substituted.
"[Employee] is (or will be) eligible for retirement benefits under the
Civil Service Retirement System based on employment with the United
States Government. [Former spouse] is entitled to a prorata share of
[employee]'s self-only monthly annuity under the Civil Service
Retirement System. [Former spouse]'s share of [employee]'s employee
annuity will be reduced by the amount of the costs associated with
providing the former spouse survivor annuity awarded in the next
paragraph. The marriage began on [insert date]. The United States
Office of Personnel Management is directed to pay [former spouse]'s
share directly to [former spouse]."
"Under section 8341(h)(1) of title 5, United States Code, [former
spouse] is awarded a former spouse survivor annuity under the Civil
Service Retirement System. The amount of the former spouse survivor
annuity will be equal to a prorata share.
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108
Retirement Regulations
Model Paragraphs
900 Series--Refunds of 900 Series--Refunds of employee contributions.
employee contributions.
Court orders that award a former spouse survivor annuity based on
the service of an employee who is not then eligible to retire should
include an additional paragraph containing instructions that tell OPM what
to do if the employee requests a refund of employee contributions before
becoming eligible to retire. The court order may award the former
spouse a portion of the refund of employee contributions or bar payment
of the refund of employee contributions.
¶901 Barring payment of ¶901 Barring payment of a refund of employee contributions.
a refund of employee
contributions.
Using the following paragraph will bar payment of the refund of
employee contributions if payment of the refund of employee
contributions would extinguish the former spouse's entitlement to a
former spouse survivor annuity. "The United States Office of Personnel
Management is directed not to pay [employee] a refund of employee
contributions."
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¶902 Dividing a refund of ¶902 Dividing a refund of employee contributions.
employee contributions.
Using the following paragraph will allow the refund of employee
contributions to be paid but will award a prorata share of the refund of
employee contributions to the former spouse. The award of a prorata
share is used only an example; the court order could provide another
fraction, percentage, or formula, or a fixed amount. A refund of
employee contributions voids the employee's rights to an employee
annuity unless the employee is reemployed under the retirement system.
Payment of the refund of employee contributions will also extinguish the
former spouse's right to a court-ordered portion of an employee annuity
or a former spouse survivor annuity unless the employee is reemployed
and reestablishes title to annuity benefits.
"If [employee] becomes eligible and applies for a refund of
employee contributions, [former spouse] is entitled to a prorata share of
the refund of employee contributions. The marriage began on [insert
date]. The United States Office of Personnel Management is directed to
pay [former spouse]'s share directly to [former spouse]."
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109
HEALTH BENEFITS
Former spouse health benefits coverage
Former spouses may enroll for Federal
Employees Health Benefits (FEHB) coverage in
their own right if they meet the spouse equity
requirements of the FEHB law. Former spouses
Former spouses may enroll for
Federal Employees Health Benefits
(FEHB) coverage in their own
right if they meet the . . .
requirements of the FEHB law.
Former spouses of Federal
employees or retirees may not
continue to receive FEHB
coverage under the employee or
retiree's enrollment after divorce.
of Federal employees or retirees may not continue
to receive FEHB coverage under the employee or
retiree's enrollment after divorce because the
former spouse does not meet the definition of
family member under section 8901(5) of title 5,
United States Code. Further, the Office of
The Office of Personnel
Management cannot honor a court
order requiring it to provide FEHB
coverage to a former spouse.
Personnel Management cannot honor a court order
requiring it to provide FEHB coverage to a former
spouse, because section 8902(m)(1) of title 5,
United States Code, preempts State law in matters
relating to the nature and extent of coverage or
benefits.
The provisions of law and regulation
contained in the following pages govern the
continuation of FEHB coverage for a former
spouse. Basically, a former spouse's entitlement
to continue FEHB coverage (under section 8905 of
title 5, United States Code) after divorce is
contingent on four requirements. The former
spouse must:
(1) be covered as a family member under the
employee/retiree's FEHB enrollment for at least 1
day during the 18 months prior to divorce;
(2) be entitled to receive a portion of the
retirement annuity after the employee retires or a
survivor annuity at the time the employee/retiree
dies;
The former spouse must . . . be
entitled to receive a portion of the
retirement annuity after the
employee retires or a survivor
annuity at the time the
employee/retiree dies [and] within
60 days after divorce, apply to the
agency employing office where the
Federal employee worked at the
time of divorce.
(3) within 60 days after divorce, apply to the
agency employing office where the Federal
employee worked at the time of divorce by sub-
mitting written notice that he or she wants to
continue FEHB coverage under the spouse equity
provisions of the FEHB law (if divorce occurred
after retirement the employing office is the
retirement system); and
(4) not remarry prior to age 55.
An individual who qualifies as a former
spouse must enroll for FEHB coverage in his or
her own right and must pay both the employee's
and the Government's share of the premium.
Coverage is prospective from the first day of the
pay period after the employing office receives all
properly completed qualifying documents. To
avoid a break in coverage, the former spouse may
want to enroll for a temporary continuation of
FEHB coverage under section 8905a of title 5,
United States Code, pending a decision on
eligibility for coverage as a former spouse.
Health Benefits
Former spouses who do not meet the criteria for
FEHB coverage under section 8905 of title 5,
United States Code may continue coverage for 3
years from the date of the divorce under section
8905a of title 5, United States Code. The former
spouse can get information about this through the
agency employing office where the Federal
employee worked at the time of divorce or through
the annuitant's retirement system.
To avoid a break in coverage, the
former spouse may want to enroll
for a temporary continuation of
FEHB coverage under section
8905a of title 5, United States
Code, pending a decision on
eligibility for coverage as a former
spouse.
A court order acceptable for processing
granting the former spouse a portion of the
retiree's annuity provides the former spouse with
a monthly payment after the employee retires and
continued FEHB coverage until the employee dies.
A court order acceptable for processing granting a
survivor annuity provides the former spouse with
continued FEHB coverage until the former spouse
dies, but the annuity does not begin until the
employee/retiree dies. A court order acceptable
for processing providing both a portion of the
retirement annuity and a survivor annuity ensures
an annuity payment from the date of retirement or
death and continued FEHB coverage until the
former spouse dies. The minimum amount of a
former spouse annuity is discussed under
§ 838.133 of Title 5, Code of Federal Regulations,
at page 37 of this publication.
No model language is included in this section
because the former spouse's continued entitlement
to FEHB coverage is based on the court order
requirements for a former spouse annuity.
Children's eligibility for FEHB coverage is also
controlled entirely by Federal law and cannot be
affect by any language in a State court order.
112
FEHB Statutory Provisions
FEHB Statutory Provisions
Section 8901(10) of title 5, United States Code, defines "former spouse" for determining eligibility
for FEHB coverage. It provides:
§ 8901. Definitions § 8901. Definitions
For the purpose of this chapter--
* * * * *
(10) "former spouse" means a former spouse of an employee,
former employee, or annuitant--
(A) who has not remarried before age 55 after the marriage to
the employee, former employee, or annuitant was dissolved,
(B) who was enrolled in an approved health benefits plan under
this chapter as a family member at any time during the 18-month
period before the date of the dissolution of the marriage to the
employee, former employee, or annuitant, and
(C)(i) who is receiving any portion of an annuity under section
8345(j) or 8467 of this title or a survivor annuity under section
8341(h) or 8445 of this title (or benefits similar to either of the
aforementioned annuity benefits under a retirement system for
Government employees other than the Civil Service Retirement
System or the Federal Employees' Retirement System),
(ii) as to whom a court order or a decree referred to in section
8341(h), 8345(j), 8445 or 8467 of this title (or similar provision of
law under any such retirement system other than the Civil Service
Retirement System or the Federal Employees' Retirement System)
has been issued, or for whom an election has been made under
section 8339(j)(3) or 8417(b) of this title (or similar provision of
law), or
(iii) who is otherwise entitled to an annuity or any portion of an
annuity as a former spouse under a retirement system for
Government employees,
except that such term shall not include any such unremarried former
spouse of a former employee whose marriage was dissolved after the
former employee's separation from the service (other than by
retirement)[.]
* * * * *
113
FEHB Statutory Provisions
Section 8905(c) of title 5, United States Code, establishes the requirement that a former spouse must
satisfy to enroll for FEHB. It provides:
§ 8905. Election of § 8905. Election of Coverage
Coverage
* * * * *
(c)(1) A former spouse may--
(A) within 60 days after the dissolution of the marriage, or
(B) in the case of a former spouse of a former employee whose
marriage was dissolved after the employee's retirement, within 60
days after the dissolution of the marriage or, if later, within 60 days
after an election is made under section 8339(j)(3) or 8417(b) of this
title for such former spouse by the retired employee,
enroll in an approved health benefits plan described by section 8903 or
8903a of this title as an individual or for self and family as provided in
paragraph (2) of this subsection, subject to agreement to pay the full
subscription charge of the enrollment, including the amounts determined
by the Office to be necessary for administration and reserves pursuant to
section 8909(b) of this title. The former spouse shall submit an
enrollment application and make premium payments to the agency which,
at the time of divorce or annulment, employed the employee to whom the
former spouse was married in the case of a former spouse who is
receiving annuity payments under section 8341(h), 8345(j), 8445, or 8467
of this title, to the Office of Personnel Management.
(2) Coverage for self and family under this subsection shall be
limited to--
(A) the former spouse; and
(B) unmarried dependent natural or adopted children of the
former spouse and the employee who are--
(i) under 22 years of age; or
(ii) incapable of self-support because of mental or physical
disability which existed before age 22.
114
PART 890--FEDERAL PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS
EMPLOYEES HEALTH PROGRAM
BENEFITS PROGRAM
* * * * *
Subpart H--Benefits for
Former Spouses
Subpart H--Benefits for Former Spouses
§ 890.801 Introduction. § 890.801 Introduction.
This subpart sets forth policies and procedures for obtaining health
benefits coverage that are unique to former spouses of Federal employees
and retirees.
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§ 890.802 Definition. § 890.802 Definition.
In this subpart, a "Qualifying court order" means a court order
acceptable for processing as defined in § 838.103 of this chapter or
qualifying court order as defined in § 838.1003 of this chapter.
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§ 890.803 Who may
enroll.
§ 890.803 Who may enroll.
(a) Except as specified in paragraph (b) of this section, a former
spouse is eligible to enroll in a health benefits plan under this part
provided that--
(1) The former spouse whose marriage to an employee, employee
annuitant, or a former Central Intelligence agency (CIA) or Foreign
Service employee is dissolved has not remarried before age 55; and
(2) The former spouse was enrolled in a health benefits plan under
this part as a family member at any time during the 18 months preceding
the date of the dissolution of marriage; and
(3)(i) The former spouse currently receives, or has future title to
receive (A) a portion of annuity payable to the employee upon retirement
based on a qualifying court order for purposes of 5 U.S.C. 8345(j) or 5
U.S.C. 8467; (B) survivor annuity benefits based on a qualifying court
order for purposes of 5 U.S.C. 8341(h) or 5 U.S.C. 8445; or (C) a
survivor annuity elected by the employee under 5 U.S.C. 8339(j)(3) or 5
U.S.C. 8417(b), including a former spouse who is designated as an
insurable interest pursuant to 5 CFR 831.605(a) and (b) and 842.606(a)
and (b) (or benefits similar to those under this paragraph under another
retirement system for Government employees); or
(ii) The former spouse was married to an employee who retired
before May 7, 1985, and (A) the employee annuitant elects to provide a
survivor annuity to the former spouse under procedures prescribed in
§ 831.621 of this title; or, (B) the former spouse satisfies all of the
conditions for a survivor annuity in § 831.622 of this title; or
Health Benefits Regulations
(iii) The former spouse was married to an employee or former
employee of the Central Intelligence Agency (CIA) for at least 10 years
during the employee's CIA service, at least 5 years of which both the
employee and the former spouse spent outside the United States, and the
marriage was dissolved before May 7, 1985; or,
(iv) The former spouse was married to an employee or former
employee of the Foreign Service for at least 10 years during the
employee's government service, and the marriage was dissolved before
May 7, 1985.
(b) Except as contained in paragraphs (a)(3)(iv) and (v) of this
section, a former spouse of an employee who separates from Federal
service before becoming eligible for immediate annuity is eligible to
enroll only if the former spouse's marriage to the employee was dissolved
before the employee left Federal service.
(c) If a former spouse cannot apply for benefits on his or her own
behalf because of a mental or physical disability, application may be filed
by a court-appointed guardian.
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§ 890.804 Coverage. § 890.804 Coverage.
Type of enrollment. (a) Type of enrollment. A former spouse who meets the
requirements of § 890.803 may elect coverage for self alone or for self
and family. A family enrollment covers only the former spouse and any
unmarried dependent natural or adopted child of both the former spouse
and the employee, former employee or employee annuitant, provided
such child is not otherwise covered by a health plan under this part. An
unmarried dependent child must be under age 22 or incapable of self-
support because of a mental or physical disability existing before age 22.
No person may be covered by two enrollments.
Proof of dependency. (b) Proof of dependency. (1) A child is considered to be dependent
on the former spouse or the employee, former employee, or employee
annuitant if he or she is--
(i) A legitimate child;
(ii) An adopted child;
(iii) A recognized natural child who lives with the former spouse or
the employee, former employee, or employee annuitant in a regular
parent-child relationship.
(iv) A recognized natural child for whom a judicial determination of
support has been obtained; or
116
Health Benefits Regulations
Exclusions from coverage.
Child incapable of self-
support.
Meaning of unmarried
child.
§ 890.805 Application
time limitations.
(v) A recognized natural child to whose support the former spouse,
or the employee, former employee, or employee annuitant makes regular
and substantial contribution in accordance with § 890.302(b)(2).
(c) Exclusions from coverage. Coverage as a family member may
be denied--
(1) If evidence shows that the former spouse, employee, former
employee, or annuitant did not recognize the child as his or her own,
despite a willingness to support the child; or
(2) If evidence calls the child's paternity or maternity into doubt,
despite the former spouse's, employee's, former employee's, or
employee annuitant's recognition and support of the child.
(d) Child incapable of self-support. When a former spouse enrolls
for a family enrollment which includes a child who has become 22 years
of age and is incapable of self-support, the employing office shall
determine such child's eligibility in accordance with § 890.302(d), (e) and
(f).
(e) Meaning of unmarried child. A child, under age 22 or incapable
of self-support, who has never married or whose marriage has been
annulled, or a child who is divorced or widowed is considered to be
unmarried.
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§ 890.805 Application time limitations.
(a) Except for former spouses meeting the requirements in
§ 890.803(a)(3)(iv) and (v) of this part, former spouses must apply for
health benefits coverage--
(1) Within 60 days after dissolution of the marriage to the Federal
employee; or
(2) Within 60 days after the date of OPM's notice of eligibility to
enroll based on entitlement to one of the following:
(i) A former spouse annuity elected under 5 U.S.C. 8339(j)(3), 5
U.S.C. 8417(b), or 5 CFR 831.621.
(ii) A former spouse annuity under § 831.622;
(iii) A former spouse insurable interest annuity under 5 U.S.C.
8339(k)(1) or 8420(a);
(iv) A former spouse annuity under 5 U.S.C. 8341(h) or 8445(f);
117
Health Benefits Regulations
§ 890.806 Effective dates
of coverage.
Generally.
Change required because of
insufficient annuity.
(v) An appointment under 5 U.S.C. 8345(j) or 8467; or (3) Within
60 days after the date of the notice of eligibility to enroll based on
entitlement to a former spouse annuity under another retirement system
for Government employees.
(b) Former spouses who meet the requirements in
§ 890.803(a)(3)(iv) of this part must apply for health benefits coverage by
April 1, 1987. Where circumstances warrant, the former spouse may
request that the filing date be waived. The authority of the Director of
Central Intelligence to direct OPM to waive the filing date has been
delegated to CIA's Office of Personnel. Requests for waiver should be
addressed to the Office of Personnel, Retirement Division, Central
Intelligence Agency, Washington, DC 20505. OPM will waive the April
1, 1987, filing date upon notification to do so from the Director of
Central Intelligence.
(c) Former spouses who meet the requirements in
§ 890.803(a)(3)(v) of this part must apply for health benefits coverage by
October 7, 1988. Where circumstances warrant, the former spouse may
request the Secretary of State to waive the filing date. The authority of
the Secretary of State to waive the filing date has been delegated to the
Department of State's Retirement Division. Requests for waiver should
be addressed to the Department of State, Retirement Division,
Washington, DC 20520. OPM will accept the waiver upon notification
to do so from the Department of State.
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§ 890.806 Effective dates of coverage.
(a) Generally. (1) The effective date of enrollment is the first day
of the pay period that begins after the date the employing office receives
the properly completed Standard Form 2809 or an appropriate substitute
(i.e., a signed statement with sufficient information to execute enrollment)
and satisfactory proof of eligibility.
(2) The effective date of a change of enrollment is the first day of
the pay period after the date the employing office receives the properly
completed Standard Form 2809.
(b) Change required because of insufficient annuity. When a former
spouse receiving an annuity under 5 U.S.C. Chapter 83 changes to a
lower cost enrollment as provided by § 890.301(q), the change is
effective immediately upon loss of coverage under the prior enrollment.
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118
Health Benefits Regulations
§ 890.807 Termination of
enrollment.
§ 890.807 Termination of enrollment.
(a)(1) Except for former spouses meeting the requirements in
§ 890.803(a)(3)(iv) and (v) of this part, a former spouse's enrollment
terminates, subject to the temporary extension of coverage for
conversion, at midnight of the last day of the pay period in which the
earliest of the following events occurs:
(i) Court order ceases to provide entitlement to survivor annuity or
portion of retirement annuity under a retirement system for Government
employees.
(ii) Former spouse remarries before age 55.
(iii) Former spouse dies.
(iv) Employee or annuitant on whose service the benefits are based
dies and no survivor annuity is payable.
(v) Separated employee on whose service the benefits are based dies
before the requirements for deferred annuity have been met.
(vi) Employee on whose service benefits are based leaves Federal
service before establishing title to an immediate annuity or a deferred
annuity.
(vii) Refund of retirement money is paid to the separated employee
on whose service the health benefits are based.
(2) OPM may authorize a longer time frame for the temporary
extension of coverage for conversion than the 31 days provided in
§ 890.401(a) if in OPM's judgment the former spouse could not have
known that (1) the employee on whose service benefits are based left
Federal service before establishing title to an immediate or deferred
annuity; or (2) the separated employee on whose service the benefits are
based died before the requirements for deferred annuity had been met. In
such cases, the right of conversion may be exercised up to 31 days after
the employing office's notice of termination. The former spouse must
pay the full premium (employee's and Government's share) during the
extended period, exclusive of the 31-day period following the notice.
(3) Termination of enrollment for failure to pay premiums within
the time frame established in accordance with § 890.808(d)(1) is
retroactive to the end of the last pay period for which payment has been
timely received.
(4) A former spouse whose enrollment is terminated under this
paragraph may not reenroll.
119
Health Benefits Regulations
Coverage of members of
the family.
Cancellation.
§ 890.808 Employing
Office Responsibilities.
Application for benefits.
Administration of the
enrollment process.
(b) The enrollment of a former spouse who meets the requirements
in § 890.803(a)(3)(iv) or (v) of this part terminates, subject to the
temporary extension of coverage for conversion, at midnight of the last
day of the pay period in which the earliest of the following events occurs:
(1) Former spouse remarries before age 55.
(2) Former spouse dies.
(c) Coverage of members of the family. The coverage of a member
of the family of a former spouse terminates, subject to the temporary
extension of coverage for conversion, at midnight of the earlier of the
following dates:
(1) The day on which the individual ceases to be an eligible family
member.
(2) The day the former spouse ceases to be enrolled, unless the
family member is entitled as a survivor annuitant to continue enrollment
or is entitled to continued coverage under the enrollment of another.
(d) Cancellation. A former spouse may cancel enrollment at any
time by filing with the employing office a properly completed health
benefits form. If a former spouse cancels enrollment, the cancellation
becomes effective on the last day of the pay period after the pay period in
which the health benefits form cancelling the enrollment is received by
the employing office. The former spouse and family members, if any,
are not entitled to the temporary extension of coverage for conversion or
to convert to an individual contract for health benefits. A former spouse
who cancels his or her enrollment may not later reenroll.
S))))))))))))))))))))))))))))
§ 890.808 Employing Office Responsibilities.
(a) Application for benefits. The former spouse's application for
health benefits may be in the form of a Standard Form 2809, letter, or
written statement to the employing office. Former spouses applying for
benefits under § 890.803(a)(3)(iv) of this part must also include with their
application a request for waiver of the application time limitation in
accordance with § 890.805(b) of this part. Former spouses applying for
benefits under § 890.803(a)(3)(v) of this part must also include with their
application a request for waiver of the application time limitation in
accordance with 890.805(c) of this part.
(b) Administration of the enrollment process. (1) The employing
office will set up a method for accepting applications for enrollment
informing the former spouse what documents to submit and where to
submit them for an eligibility determination, and collecting premium
120
Health Benefits Regulations
Qualifying court order.
Premium payments.
payments. The method will include procedures for verifying the
eligibility requirements under § 890.803(a)(1) and (2) of this part. The
employing office must obtain OPM, Foreign Service Retirement and
Disability System (FSRDS), or CIA Retirement and Disability System
(CIARDS) documentation that the former spouse meets the additional
requirement under § 890.803(a)(3) (i), (ii), (iii), (iv) or (v) of this part.
A request for the retirement system's determination whether a court order
is a qualifying court order for health benefits enrollment under this
subpart must be accompanied by the documentation specified in
§ 838.221, § 838.721, or § 838.1005 of this chapter.
(2) The employing office will send the former spouse notice, in
writing, of its decision. When an employing office informs a former
spouse of his or her eligibility to enroll, it will identify the documents on
which it based its decision and will include a premium payment schedule
and statement of the requirements for continued enrollment under
§ 890.803. If the former spouse does not qualify for health benefits
coverage, the employing office must give the former spouse a
reconsideration right under § 890.104. Reconsideration requests from
former spouses applying for benefits under § 890.803(a)(3)(iv) of this part
must be directed to the Office of Personnel, Retirement Division, Central
Intelligence Agency, Washington, DC 20505. Reconsideration requests
from former spouses applying for benefits under § 890.803(a)(3)(v) of
this part must be directed to the Department of State, Retirement
Division, Washington, DC 20520.
(3) The agency employing office will maintain a health benefits file
for the former spouse as a file separate from the personnel records of the
employee or former employee. The retirement system acting as
employing office for the former spouse may file the former spouse health
benefits records in with the annuitant's retirement records.
(4) The former spouse will be required to certify that he or she
meets the requirements listed in § 890.803 and that he or she will notify
the employing office within 31 days of an event that results in failure to
meet one or more of the requirements.
(c) Qualifying court order. Subject to a 31-day extension period for
conversion, the duration of health benefits coverage will coincide with
any period specified in the qualifying court order providing for an
annuity. A court order not meeting the requirements under part 838 of
this title will not be used to establish or continue entitlement to a former
spouse's health benefits coverage.
(d) Premium payments. (1) The former spouse must remit to the
employing office the full subscription charge for the enrollment for every
pay period during which the enrollment continues, exclusive of the 31-day
temporary extension of coverage for conversion provided in §§ 890.401
and 890.807(a)(2). Payment must be made after the pay period in which
121
Health Benefits Regulations
the former spouse is covered in accordance with a schedule established by
the employing office [see definition of "pay period" under § 890.101(a)].
If the employing office does not receive payment by the due date, the
employing office will notify the former spouse by certified mail return
receipt requested that continuation of coverage rests upon payment being
made within 15 days (45 days for former spouses residing overseas) after
receipt of the notice. The enrollment of an individual who fails to remit
payment within the specified time frame will be terminated. Termination
for nonpayment of premium is considered a voluntary cancellation under
§ 890.807(d). A former spouse whose enrollment is terminated because
of nonpayment of premium may not reenroll or reinstate coverage, except
as provided in paragraph (d)(2) of this section.
(2) If the individual was prevented by circumstances beyond his or
her control from making payment with 15 days after receipt of the notice,
he or she may request reinstatement of coverage by writing to the
employing office. Such a request must be filed within 30 calendar days
from the date of termination and must be accompanied by verification that
the individual was prevented by circumstances beyond his or her control
from paying within the time limit. The employing office will determine if
the individual is eligible for reinstatement of coverage; and, when the
determination is affirmative, the individual's coverage may be reinstated
retroactively to the date of termination. If the determination is negative,
the individual may request a review of the decision from OPM.
(3) The employing office will submit all premium payments
collected from former spouses along with its regular health benefits
payments to OPM in accordance with procedures established by that
Office.
Withholding from annuity. (e) Withholding from annuity. The retirement system acting as
employing office for a former spouse will establish a method for
withholding the full subscription charge from the former spouse's annuity
check. When the annuity is insufficient to cover the full amount of health
benefits premium due, the retirement system will notify the former spouse
of the opportunity to register to be enrolled in another plan as provided by
§ 890.301(q) or to make direct payment of the full premium directly to
the retirement system.
S)))))))))))))))))))))))))))))))))))))))))))
122
LIFE INSURANCE
Assignment of life insurance coverage
A Federal employee or former employee
(including an annuitant) may make an irrevocable
assignment of his or her coverage under the
Federal Employees' Group Life Insurance
(FEGLI) policy to another person or to a trust.
Individuals who assign their FEGLI ownership
continue to be insured under the FEGLI Program.
However, they irrevocably transfer to the assignee
many of the attendant rights, benefits, and
A Federal employee or former
employee (including an annuitant)
may make an irrevocable
assignment of his or her Federal
Employees' Group Life Insurance
(FEGLI) policy to another person
responsibilities for their basic, standard optional,
and additional optional insurance. (Family
optional insurance cannot be assigned.)
Assignments of insurance are
generally made to comply with the
requirements of a court order upon
divorce or for personal financial
An assignment automatically cancels a prior
designation of beneficiary. The distinction
between a designation of beneficiary and an
assignment is addressed later.
Assignments of insurance coverage are
generally made to comply with the requirements of
a court order upon divorce or for personal
financial planning purposes.
(a) To comply with a court order. An
assignment of FEGLI coverage may be made by a
Federal employee or former employee in order to
comply with a court order for divorce.
Frequently, the court will order a Federal
employee or former employee to name a former
spouse as the beneficiary of his or her life
insurance proceeds. However, under the FEGLI
law, an insured person may change his or her
designation of beneficiary at any time. This is
true even if a court order directs otherwise,
because the FEGLI law preempts State law, and
court orders based on state law, to the extent that
the state law is inconsistent with the FEGLI
Assigning FEGLI coverage to a
former spouse, however, provides
a means for ensuring that, when
FEGLI benefits are awarded to a
former spouse in a divorce, the
employee is not able to circumvent
the award by changing the
designation of beneficiary or
cancelling the coverage at some
contract. Assigning FEGLI coverage to a former
spouse, however, provides a means for ensuring
that, when FEGLI benefits are awarded to a
former spouse in a divorce, the employee is not
able to circumvent the award by changing the
designation of beneficiary or cancelling the
coverage at some later date.
It should be noted that the law does not authorize
the Office of Personnel Management (OPM) to
enforce or comply with the provisions of a court
order directing OPM or a Federal employee or
former employee to assign FEGLI coverage. The
law merely allows the Federal employee or former
employee to make an assignment of FEGLI
coverage, if he or she so chooses. It is the
responsibility of the court-designated assignee to
ensure that the order is enforced.
Life Insurance
(b) For inheritance tax purposes. An
absolute assignment of an insured's interest in a
group life policy, made at least 3 years before the
insured's death, will generally remove the
insurance proceeds from the insured's estate.
Current Federal estate tax law allows an unlimited
marital deduction for that portion of the gross
estate passed to a surviving spouse. Thus, there is
no apparent immediate tax advantage to assigning
ownership of a life insurance policy to a spouse.
However, since State tax laws vary and tax savings
under Federal or State law can be considerable if
insurance proceeds are not subject to estate taxes,
it is important to consult with, and rely on, the
advice of a competent estate tax advisor.
The Office of Personnel Management
assumes no responsibility or obligation with respect
to the validity, sufficiency, or the consequences of
an assignment under the Internal Revenue Code.
If an insured owns more than one
type of coverage--both basic and
standard optional, for example--he
or she must assign all of the
A determination whether the FEGLI proceeds are
included in the insured's gross estate must
ultimately be made by the Internal Revenue
Service at the time of the insured's death. In
attempting to determine the tax effect of an
assignment, the assignor should refer to tax laws,
case law, and IRS regulations. In addition, the
assignor should consider obtaining a ruling from
the IRS.
If an insured owns more than one type of
coverage--both basic and standard optional, for
example--he or she must assign all of the
insurance. An insured may not assign only a
portion of the coverage. Family optional insurance
may not be assigned. An insured may not name
contingent assignees in the event the primary
assignee predeceases him or her. If the
assignment of the insurance is to two or more
persons, the insured must specify percentage
shares, rather than dollar amounts or types of
insurance, to go to each assignee.
Once insurance is assigned, the assignee to
whom the insured transfers FEGLI ownership
may, for the insurance assigned to him or her: (1)
designate beneficiaries, (2) convert the insurance
to an individual policy if the insured's eligibility
for group insurance ceases, and (3) cancel the
insurance or reduce the amount of coverage.
When insurance is assigned to more than one
person, these people must agree when exercising
the right to cancel or reduce coverage.
The assignor also continues to be
responsible for premium payments
The Federal employee or former employee
(assignor) retains the right to elect new insurance
coverage, though all new insurance (excluding
family optional insurance) is subject to an existing
assignment. The assignor also retains the right to
decide, at time of retirement or receipt of workers'
compensation, to maintain more than the minimum
percentage of his or her basic life insurance. The
assignor also continues to be responsible for
premium payments under the group policy.
Premium payments will continue to be withheld
from the assignor's pay, annuity, or compensation.
An assignment is not to be confused with a
designation of beneficiary under the FEGLI
Program. A Federal employee or former
employee may designate a person or legal entity to
receive any FEGLI insurance payable at death.
Designations of beneficiary do not convey any
ownership rights under the insurance policy and
can be changed by the Federal employee or former
employee at any time. Upon assigning FEGLI
coverage, however, the employee or former
employee gives up the right to make a designation
125
Life Insurance
of beneficiary or change beneficiaries, and the assignee is responsible for keeping the
assignee assumes those rights. employing office informed of his or her current
address. For retirees, the "employing office" is
An assignment is effective on the date the the administrator of the retirement system. For
insured's employing office receives a properly retirees under the Civil Service Retirement System
completed, signed, and witnessed assignment. and Federal Employees Retirement System,
Each assignee and each beneficiary of an assignments should be sent to the U.S. Office of
Personnel Management, Retirement Operations
Center, Boyers, PA 16017-0440.
Assignments must be made on OPM Form RI
76-10, Assignment of Federal Employees' Group
Life Insurance. Employees may obtain the form
from their personnel offices, and annuitants from
their retirement systems.
Note: Until the enactment of Public Law 103-336
on October 3, 1994, assignments of FEGLI
coverage were limited to Federal judges. OPM
will publish revised regulations in 5 CFR Part 874
on the assignment of FEGLI coverage to include
all Federal employees and former employees.
126
FEGLI Statutory Provisions
Section 8706(e) of title 5, United States Code, permits Federal employees and former employees to
irrevocably assign their Federal Employees' Group Life Insurance coverage to another person. The statute
provides:
§8706. Termination of
Insurance; Assignment of
Ownership
§8706. Termination of Insurance; Assignment of Ownership
* * * * *
(e) Under regulations prescribed by the Office, each policy purchased
under this chapter shall provide that an insured employee or former
employee may make an irrevocable assignment of the employee's or former
employee's incidents of ownership in the policy.
* * * * *
