Appendix A to Subpart A of Part 838 - Addresses for Serving Court Orders Affecting CSRS or FERS Benefits
5:2.0.1.1.21.1.73.14.2 : Appendix A
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,
NW., Washington, DC [57 FR 33574, July 29, 1992, as amended at 58
FR 3202, Jan. 8, 1993]
Appendix A to Subpart F of Part 838 - Recommended Language for Court Orders Dividing Employee Annuities
5:2.0.1.1.21.6.87.9.3 : Appendix A
Appendix A to Subpart F of Part 838 - Recommended 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 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 ¶¶
201-211 General award of employee annuity. ¶ 201 Award of a fixed
monthly amount. ¶ 202 Award of a percentage. ¶ 203 Award of a
fraction. ¶ 204 Award of a pro rata share. ¶ 205-210 [Reserved] ¶
211 Award based on a stated formula. ¶¶ 212-217 Award of phased
retirement annuity or composite retirement annuity. ¶ 212 Award of
phased retirement annuity and composite retirement annuity while
providing for the possibility that the employee retires in the
usual manner without entering phased retirement status before fully
retiring. ¶ 213 Award of composite retirement annuity while
providing for the possibility that the employee retires in the
usual manner without entering phased retirement status, but not
providing for award of phased retirement annuity. ¶ 214 Award of
employee annuity when the employee retires in the usual manner,
without providing for the possibility that the employee enters
phased retirement status and full retirement status. ¶ 215 Award of
phased retirement annuity and composite retirement annuity, without
providing for the possibility that the employee retires in the
usual manner without having entered phased retirement status and
full retirement status. ¶ 216 Award of only phased retirement
annuity, but not awarding composite retirement annuity when the
employee enters full retirement status or providing for the
possibility that the employee retires in the usual manner without
entering phased retirement status before fully retiring. ¶ 217
Award of only composite retirement annuity when employee enters
full retirement status following phased retirement, but not
awarding phased retirement annuity when the employee enters phased
retirement status or providing for the possibility that the
employee retires in the usual manner without entering phased
retirement status before fully retiring. ¶ 218-230 [Reserved] ¶¶
231-232
Awarding or excluding COLA's. ¶ 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. 000 Series - Special technical provisions.
¶
001 Language required 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.”
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.
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].”
¶ 102-110 [Reserved]
¶ 111 Protecting a former 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].”
200 Series - Computing the amount of the former spouse's benefits.
Paragraphs 201 through 204 contain model language for the most
common types of wards 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 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 and 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].”
¶ 202 Award of a percentage.
Using the following paragraph will award the former spouse a
stated percentage of the employee annuity. Unless the court order
expressly directly 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].”
¶ 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 directly 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].”
¶ 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 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].”
¶ 205-210 [Reserved]
¶ 211 Award based on a 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].”
¶¶ 212-217 Award of phased retirement annuity or composite
retirement annuity.
A court order may include an award directed at (1) phased
retirement annuity payable to a phased retiree, to address the
possibility that an employee will enter phased retirement status;
(2) composite retirement annuity payable to a phased retiree at
entry into full retirement status, to address the possibility that
an employee will enter phased retirement status and then enter full
retirement status; or (3) annuity payable to an employee who
retires without having elected phased retirement status.
A general non-specific award will apply to any employee annuity
payable, including phased retirement annuity and composite
retirement annuity (see ¶¶ 201-211). For example, an award
dividing employee annuity that uses terms such as “annuities,”
“pensions,” “retirement benefits,” or similar general terms, would
apply to all types of employee annuity.
To separately provide for division of phased retirement annuity
or composite retirement annuity, a provision of a court order must
expressly state that it is directed at “phased retirement annuity”
or “composite retirement annuity,” and must indicate the share of
employee annuity as a formula, percentage, or fraction. That is, it
must state the type of annuity to be divided (e.g., “net phased
retirement annuity”). If such a provision is unclear as to whether
it is directed at gross, net, or self-only phased retirement
annuity or composite retirement annuity, the provision will be
applied to gross phased retirement annuity or gross composite
retirement annuity.
It should be noted that a former spouse survivor annuity cannot
be awarded from a phased retirement annuity; therefore, a phased
retirement annuity is not subject to reduction to provide a former
spouse survivor annuity. As a consequence, an award dividing either
“self-only phased retirement annuity” or a “gross phased retirement
annuity” would be directed at identical annuities. However, a
former spouse survivor annuity can be awarded from a composite
retirement annuity payable to a phased retiree at entry into full
retirement status (i.e., when the “phased retiree” enters full
retirement status and becomes a “retiree”); therefore, there would
be a difference between an award of a share of “self-only composite
retirement annuity” and an award of a share of “gross composite
retirement annuity.”
Due to the complexity of the benefits, care should be taken in
drafting separate awards of phased retirement annuity or composite
retirement annuity. It should also be noted, for example, that an
award directed only at the division of phased retirement annuity or
composite retirement annuity payable to a phased retiree will not
be effective to divide annuity payable to an employee who retires
in the usual manner, without having entered phased retirement
status first. If separate awards of phased retirement annuity or
composite retirement annuity are to be provided, consideration
should be given to including provisions in the paragraph addressing
the possibility that the employee may retire in the usual manner
without entering phased retirement status before fully retiring.
Similarly, if employee annuity is only to be awarded in the event
the employee retires in the usual manner, without entering phased
retirement status before fully retiring, consideration should be
given to including specific language to that effect.
¶ 212 Award of phased retirement annuity and composite
retirement annuity while providing for the possibility that the
employee retires in the usual manner without entering phased
retirement status before fully retiring.
Using the following paragraph will award phased retirement
annuity and composite retirement annuity and provides for the
possibility that the employee retires in the usual manner without
entering phased retirement status:
“[Employee] is (or will be) eligible for retirement benefits
under the Civil Service Retirement System based on employment with
the United States Government. If [employee] enters phased
retirement status, the [former spouse] is entitled to a [insert
description of percentage, fraction, formula, or insert term `pro
rata share'] of [employee]'s [insert `gross,' `net,' or
`self-only'] monthly phased retirement annuity under the Civil
Service Retirement System. When [employee] enters full retirement
status and receives a composite retirement annuity, [former spouse]
is awarded [insert language awarding fraction, formula, or `pro
rata share'] of [employee]'s monthly [insert “gross,” “net” or
“self-only”] composite retirement annuity under the Civil Service
Retirement System. If [employee] retires from employment with the
United States Government without entering phased retirement status
before fully retiring, [former spouse] is entitled to [insert
appropriate language from 200 series or 300 series paragraphs]
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].”
¶ 213 Award of composite retirement annuity while providing for
the possibility that the employee retires in the usual manner
without entering phased retirement status, but not providing for
award of phased retirement annuity.
Using the following will award composite retirement annuity when
an employee enters phased retirement status and subsequently enters
full retirement status, and provides for the possibility that the
employee retires in the usual manner without having entered phased
retirement status; however, the paragraph will not award a phased
retirement annuity when the employee enters phased retirement
status:
“[Employee] is (or will be) eligible for retirement benefits
under the Civil Service Retirement System based on employment with
the United States Government. If [employee] enters phased
retirement status and subsequently enters full retirement status,
the [former spouse] is entitled to a [insert description of
percentage, fraction, formula, or insert term `pro rata share'] of
[employee]'s [insert `gross,' `net,' or `self-only'] monthly
composite retirement annuity under the Civil Service Retirement
System. If [employee] retires from employment with the United
States Government without entering phased retirement status before
fully retiring, [former spouse] is entitled to [insert appropriate
language from 200 series or 300 series paragraphs] 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].”
¶ 214 Award of employee annuity when the employee retires in the
usual manner, without providing for the possibility that the
employee enters phased retirement status and full retirement
status.
Use the following paragraph if the former spouse is only to be
awarded a portion of the employee's annuity when the employee
retires in the usual manner, without an award of a portion of the
employee's phased retirement annuity or composite retirement
annuity in the event that the employee enters phased retirement
status. It should be noted, however, that if this conditional
clause provided below is used in an appropriate 200 or 300 series
paragraph without a conditional award of a portion of phased
retirement annuity and composite retirement annuity, the former
spouse will not receive a portion of the employee's annuity if the
employee enters phased retirement status and then enters full
retirement status:
“If [employee] retires from employment with the United States
Government without entering phased retirement status before fully
retiring, [former spouse] is awarded [insert remaining language for
the paragraph from the appropriate 200 series or 300 series]. . .
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].”
¶ 215 Award of phased retirement annuity and composite
retirement annuity, without providing for the possibility that the
employee retires in the usual manner without having entered phased
retirement status and full retirement status.
Use the following paragraph to award only phased retirement
annuity and composite retirement annuity. This paragraph will not
award benefits if the employee retires in the usual manner without
entering phased retirement status:
“[Employee] is (or will be) eligible for retirement benefits
under the Civil Service Retirement System based on employment with
the United States Government. If [employee] enters phased
retirement status, the [former spouse] is entitled to a [insert
description of percentage, fraction, formula, or insert term `pro
rata share'] of [employee]'s monthly [insert `gross,' `net,' or
`self-only'] phased retirement annuity under the Civil Service
Retirement System. When [employee] enters full retirement status
and receives a composite retirement annuity, [former spouse] is
awarded [insert language awarding percentage, fraction, formula, or
pro rata share] of [employee]'s monthly [insert “gross,” “net” or
“self-only”] composite retirement 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].”
¶ 216 Award of only phased retirement annuity, but not awarding
composite retirement annuity when the employee enters full
retirement status or providing for the possibility that the
employee retires in the usual manner without entering phased
retirement status before fully retiring.
Using the following will award only phased retirement annuity.
This paragraph will not award composite retirement annuity when the
employee enters full retirement status nor will it provide for the
possibility that the employee retires in the usual manner without
entering phased retirement status. It should be noted that if this
paragraph is used, the former spouse will not receive a portion of
the employee's annuity benefits if the employee retires in the
usual manner without entering phased retirement status first:
“[Employee] is (or will be) eligible for retirement benefits
under the Civil Service Retirement System based on employment with
the United States Government. If [employee] enters phased
retirement status, the [former spouse] is entitled to a [insert
description of percentage, fraction, formula, or insert term `pro
rata share'] of [employee]'s [insert `gross,' `net,' or
`self-only'] monthly phased retirement 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].”
¶ 217 Award of only composite retirement annuity when employee
enters full retirement status following phased retirement, but not
awarding phased retirement annuity when the employee enters phased
retirement status or providing for the possibility that the
employee retires in the usual manner without entering phased
retirement status before fully retiring.
Using the following will award only composite retirement annuity
when the employee enters full retirement status following phased
retirement. This paragraph will not award phased retirement annuity
when the employee enters phased retirement status nor will it
provide for the possibility that the employee retires in the usual
manner without entering phased retirement status. It should be
noted that if this paragraph is used, the former spouse will not
receive a portion of the employee's annuity benefits if the
employee retires without entering full retirement status from
phased retirement status:
“[Employee] is (or will be) eligible for retirement benefits
under the Civil Service Retirement System based on employment with
the United States Government. If [employee] enters phased
retirement status and enters full retirement status, the [former
spouse] is entitled to a [insert description of percentage,
fraction, formula, or insert term `pro rata share'] of [employee]'s
[insert `gross,' `net,' or `self-only'] monthly composite
retirement 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].”
¶ 218-230 ¶ 231 Awarding COLA's 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].”
¶ 232 Excluding COLA's on awards other than 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 pro
rata 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, ¶ 211, or ¶¶
212-217 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 or enters phased
retirement status' or if the employee has not retired or entered
phased retirement status, or `of this order' if the employee is
already retired or entered phased retirement status] 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].”
300 Series - Type of Annuity
Awards of employee annuity to a former spouse (other than awards
of fixed dollar amounts) must specify whether OPM will use the
“phased retirement annuity,” “composite retirement annuity,” “gross
annuity,” “net annuity,” or “self-only annuity” as defined in §
838.103 (see also § 838.306) 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 “phased retirement annuity,” “composite retirement annuity,”
“gross annuity,” “net annuity,” or “self-only annuity” as defined
in § 838.103.
¶ 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].”
¶ 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 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].”
400 Series - Refunds of 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 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.”
¶ 402 Dividing a refund of 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.
“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].”
500 Series - Death of the former spouse.
¶ 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.
¶ 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 deaths 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.
¶ 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 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.]”
[57 FR 33574, July 29, 1992, as amended at 79 FR 46628, Aug. 8,
2014]
Appendix A to Subpart I of Part 838 - Recommended Language for Court Orders Awarding Former Spouse Survivor Annuities
5:2.0.1.1.21.9.96.10.4 : Appendix A
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].”
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.
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.
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.”
¶ 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.”
¶ 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 prorate share. The
marriage began on [insert date].”
¶ 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
began, 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 Personnel Management is ordered not to
increase this amount by COLA's occurring before death of [employee
or retiree].”
¶ 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.”
¶ 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.]”
¶ 713-720 [Reserved]
¶ 721 Award of a percentage or
fraction of the maximum survivor 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.
¶ 722 Award based on a stated formula as a share of maximum
survivor 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.]”
¶ 723-750 [Reserved]
¶ 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 data].”
¶ 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 maybe
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 data].”
800 Series - Paying the 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 maybe
reduced to pay the cost.
¶ 801 Costs to be paid 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.
¶ 802 Costs to be paid from former spouse's 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
spouse'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.
900 Series - Refunds of 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 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.”
¶ 902 Dividing a refund of 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.]”
Appendix A to Subpart J of Part 838 - Guidelines for Interpreting State Court Orders Dividing Civil Service Retirement Benefits
5:2.0.1.1.21.10.96.19.5 : Appendix A
Appendix A to Subpart J of Part 838 - Guidelines for Interpreting
State Court Orders Dividing Civil Service Retirement Benefits
United States of America Office of Personnel Management Retirement
and Insurance Group Guidelines for Interpreting State Court Orders
Dividing Civil Service Retirement Benefits
These guidelines explain the interpretation that the Office of
Personnel Management (OPM) will place on terms and phrases
frequently used in dividing benefits. These guidelines are intended
not only for the use of OPM, but also for the legal community as a
whole, with the hope that by informing attorneys, in advance, about
the manner in which OPM will interpret terms written into court
orders, the resulting orders will be more carefully drafted, using
the proper language to accomplish the aims of the court.
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 benefits.
Sections 1003(b)(1) and 1051 of title 29, United States Code,
exempt CSRS from ERISA, because CSRS is a “governmental plan” as
defined in section 1001(23) of title 29, United States Code.
Accordingly, OPM does not honor ERISA Qualifying Domestic Relations
Orders (QDRO's) except to the extent that the law governing CSRS
expressly authorizes compliance with State court orders. OPM will
honor the orders to the extent permitted by CSRS. However, many
provisions of ERISA QDRO's are not authorized under CSRS. Most
significantly, a court cannot require that payments to the former
spouse begin before the employee actually retires (i.e., begins to
receive benefits) and, unless the order expressly provides that the
former spouse is entitled to a survivor annuity, the payments to
the former spouse cannot continue after the employee dies.
I. Computations generally
A. Adjustments affecting court-awarded benefits. 1.
Orders that award adjustments to a former spouse stated in terms
such as “cost-of-living adjustments” or “COLAs” occurring after the
date of the decree but before the date of retirement will be
interpreted to award increases equal to the adjustments described
in or effected under section 8340 of title 5, United States
Code.
2. Orders that award adjustments to a former spouse stated in
terms such as “salary adjustments” or “pay adjustments” occurring
after the date of the decree will be interpreted to award increases
equal to the adjustments described in or effected under section
5303 of title 5, United States Code until the date of
retirement.
3. Unless otherwise specified in the order, adjustments
described in section 8340 of title 5, United States Code will be
applied after the date of retirement.
B. Application of COLAs. 1. Unless the court directly and
unequivocally orders otherwise, decrees that divide annuities
either on a percentage basis or by use of a formula will be
interpreted to entitle the former spouse to salary adjustments
occurring after the date of the decree and cost-of-living
adjustments occurring after the date of the decree or occurring
after the date of the employee's retirement, whichever comes
later.
2. On the other hand, decrees that award a former spouse a
specific dollar amount from the annuity will be interpreted as
excluding salary and cost-of-living adjustments after the date of
the decree, unless the court expressly orders their inclusion.
3. Orders that contain a general instruction to calculate the
former spouse's share effective at the time of divorce or
separation will not be interpreted to prevent the inclusion of
salary adjustments occurring after the specified date. To prevent
the application of salary adjustments after the date of the divorce
or separation, the decree must either state the exact dollar amount
of the award to the former spouse or specifically state that salary
adjustments after the specified date are to be disregarded in
computing the former spouse's share.
4. Orders that require OPM to compute a benefit as of a
specified date, and specifically state that salary adjustments
after the specified date are to be disregarded in computing the
former spouse's share will not be interpreted to prevent the
application of COLAs after the date of the Federal
employee's retirement. To award COLAs between the specified date
and the Federal employee's retirement, the order must specifically
state that the former spouse will receive the benefit of any COLAs
occurring between the specified date and the date of the Federal
employee's retirement. To prevent the application of COLAs after
the retirement date, the decree must either state the exact dollar
amount of the award to the former spouse or specifically state that
the former spouse will not receive the benefit of COLAs occurring
after the date of the Federal employee's retirement.
C. Present value. 1. Orders that award a portion of the
“present value” of an annuity will not be honored unless the amount
of the “present value” is stated in the order. (See 5 CFR
838.1004(b).)
2. Orders that award a portion of the “present value” of an
annuity stated in the order will be interpreted as awarding “a
specific dollar amount.” Unless the court specifically states
otherwise, such an award payable from a monthly annuity benefit
will be paid in equal installments at 50 percent of the monthly
annuity rate at the time of retirement or the date of the order,
whichever comes later, until the specific dollar amount is
reached.
3. Orders that award a portion of the “value” of an annuity as
of a specific date before retirement, without specifying what
“value” is, will be interpreted as awarding a portion of the
annuity equal to the monthly annuity rate at the time of retirement
times a fraction, the numerator of which is the number of months of
“creditable service” or service worked as of the date specified and
the denominator of which is the total number of months as of the
time of retirement of “creditable service” or service worked,
whichever term is used in the court order. (See III. C. of these
Guidelines.)
4. Orders that contain general language awarding a specified
portion of a Federal employee's “retirement benefits” as of a
specified date before retirement, but do not specify whether OPM
should use “creditable service” or “service worked” as of the date
specified to complete the computation, will be interpreted to award
a portion of the annuity equal to the monthly annuity rate at the
time of retirement times a fraction, the numerator of which is the
number of months of service worked as of the date specified and the
denominator of which is the number of months of “creditable
service” as of the time of retirement.
D. Annuity as of a date before retirement. Orders that
award a portion of an employee's annuity as of a specified date
before the employee's retirement will be interpreted as
awarding a portion of the annuity equal to the monthly annuity rate
at the time of retirement times a fraction, the numerator of which
is the number of months of “creditable service” or service worked
as of the date specified and the denominator of which is the number
of months of “creditable service” or service worked used in the
retirement computation.
E. Formulas or percentage instructions. Orders that
contain both a formula or percentage instruction and a dollar
amount will be interpreted as including the dollar amount only as
the court's estimate of the initial amount of payment. The formula
or percentage instruction will control.
F. Computation limited to a particular period of
employment. In order to limit the computation of benefits to a
particular period of employment, the court order must use language
expressly limiting the period of service to be included in the
computation. General language such as “benefits accrued as a result
of employment with the U.S. Postal Service * * *” will be
interpreted to mean only that CSRS retirement benefits are subject
to division (see V.A. of appendix A to subpart J of part 838). Such
language will not be interpreted to limit the period of service
included in the computation (i.e., service performed with other
Government agencies will be included). To limit the period of
service, the court order should specify the number of months to be
included in the computation or should describe specifically 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 “only service performed during the
period Petitioner and Defendant were married” or “benefits based on
service performed through the date of divorce,” etc.).
G. Amounts less than $12 per year. Orders awarding a
former spouse less than $12 per year are qualifying court orders.
Such orders will be interpreted as an award of $1 per month.
II. Types of annuity
A. Gross annuity will be interpreted as the amount of the
annuity payable after any applicable survivor reduction but before
any other deduction.
B. 1. To divide an annuity before any applicable survivor
reduction, the decree must contain language to the effect that the
division is to be made on the self-only annuity, the life-rate
annuity, or the annuity unreduced for survivor benefit, or
equivalent language. A division of “gross annuity” will not
accomplish this purpose.
2. To divide an annuity before the social security offset under
section 8349 of title 5, United States Code, the order must
expressly state that the division is to occur before the social
security offset. The term “unreduced annuity” will mean annuity
after the social security offset.
C. Net annuity or disposable annuity will be interpreted to mean
net annuity as defined in § 838.1003.
D. Orders that fail to state the type of annuity that they are
dividing will be interpreted as dividing gross annuity (defined
above).
E. Orders dividing a “retirement check” will be interpreted as
dividing net annuity (as defined in § 838.1003).
III. Calculating time
A. The smallest unit of time that will be used in computing a
formula in a decree is a month.
1. This policy is based on section 8332 of title 5, United
States Code, that allows credit for service for years or twelfth
parts thereof. Requests to calculate smaller units of time will not
be honored.
2. Time calculations by the Office of Personnel Management will
be no more precise than years and twelfth parts, even where the
court order directs OPM to make a more precise calculation.
However, if the court order states a formula using a specified
simple or decimal fraction other than twelfth parts, OPM will use
the specified number to perform simple mathematical computations.
For example, the share of a former spouse awarded a portion of the
annuity equal to 1/2 of the fraction whose numerator is 12.863
years and whose denominator is the total service on which the
annuity is based would be computed by taking 1/2 of the quotient
obtained by dividing 12.863 by the total service measured in
years and twelfth parts.
B. The term “military service” will generally be interpreted to
include only periods of service within the definition of military
service contained in section 8331(13) of title 5, United States
Code, i.e., active duty military service. Civilian service with
military organizations will not be included as “military service,”
except where the exclusion of such civilian service would be
manifestly contrary to the intent of the court order.
C. 1. Unused sick leave is counted as “creditable service” on
the date of separation for immediate retirement; it is not
apportioned over the time when earned.
2. When an order contains a formula for dividing 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,” or similar terms, the time attributable to unused sick
leave will not be included.
3. When an order contains a formula for dividing 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
as follows -
(i) If the amount of unused sick leave is specified, the order
will be interpreted to award a portion of the annuity equal to the
monthly 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 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
order will be interpreted to award a portion of the 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.
IV. Distinguishing Between Divisions of Annuity and Refunds of
Contributions
A. Orders that are unclear about whether they are dividing an
annuity or a refund of contributions will be interpreted as
dividing an annuity.
B. Orders using “annuities,” “pensions,” “retirement benefits,”
or similar terms will be interpreted as dividing an annuity and
whatever other employee benefits become payable, such as refunds.
Orders using “contributions,” “deductions,” “deposits,” “retirement
accounts,” “retirement fund,” or similar terms will be interpreted
as dividing the amount of contributions the employee has paid into
the Civil Service Retirement Fund. Unless the court order
specifically states otherwise, when an annuity is payable, such
orders will be paid in equal monthly installments at 50 percent of
the monthly annuity at the time of retirement or the date of the
order, whichever comes later, until the specific dollar amount is
reached.
V. Identifying Benefits Affected
A. Orders that do not specify what pension or retirement
benefits are to be divided will not be interpreted as dividing CSRS
benefits. Terms such as “CSRS,” “United States,” “OPM,” “Federal
Government” benefits, “Postal Service retirement benefits,”
“retirement benefits payable based on service with the U.S.
Department of Agriculture,” or similar terms will be considered
sufficient to identify civil service retirement benefits for
division.
B. Except as provided below, orders directed at other retirement
systems will not be interpreted as affecting CSRS benefits.
1. Orders that mistakenly label CSRS benefits as Federal
Employees Retirement System (FERS) benefits, will be interpreted as
dividing CSRS benefits and vice versa.
2. Unless the order expressly provides otherwise, for employees
transferring to FERS, orders directed at CSRS benefits will be
interpreted as applying to the entire FERS basic benefit, including
the CSRS component, if any.
C. Orders directed at other Federal retirement systems such as
military retired pay, Foreign Service retirement benefits and
Central Intelligence Agency retirement benefits will not be
interpreted as dividing CSRS benefits.
D. Orders dividing military retired pay, even when military
retired pay has been waived for inclusion in CSRS annuities, will
not be interpreted as dividing CSRS benefits. (Such orders cannot
be qualifying orders under section 838.1004(b), because the amount
cannot be computed from the face of the order or from normal OPM
files.)
VI. State Law not Specified in Court Orders
A. 1. Except as provided in Guideline VI.A.2., OPM will not
research, interpret, or apply State law regarding community or
marital property rights or divisions.
2. OPM will not divide disability retirement benefits when such
a division would be contrary to State law unless the order
expressly directs division of “disability” benefits.
B. Orders that do not specify the “community property” fraction
or percentage of the former spouse's share will not be considered
qualifying because the amount of the benefit cannot be computed
from the face of the order or from normal OPM files (5 CFR
838.1004(b)).
[55 FR 9103, Mar. 12, 1990. Redesignated and amended at 57 FR
33596, July 29, 1992]