Two recent decisions point out the need for the proper division of an annuity when federal employees are being divorced. In Kincaid v. Office of Personnel Management, MSPB No. AT-0843-06-0127-!-1(11/13/06), the Board upheld OPM’s refusal to award a survivor annuity to a former spouse of a federal employee because the language in a state court divorce order was ambiguous with respect to survivor benefits. OPM initially awarded a survivor annuity to the former spouse, although the federal employee had retired and elected a survivor annuity for his current spouse. When the federal employee obtained a clarifying order from the state court, OPM refused to change its opinion as the clarifying order was “unacceptable” because it was not the original order dividing marital property.
However, the AJ reversed OPM after the retiree submitted an August 1989 document in which his former spouse “disclaim[ed] all interest whatsoever in the annuity described in” the 1989 divorce decree. The MSPB upheld the AJ’s initial decision without deciding whether the August 1989 document served as a waiver of the former spouse’s right to a survivor annuity. It found conflicting language in the divorce decree as to the former spouse’s right to a survivor annuity. As OPM and the Board are prohibited from undertaking their own determination of spousal entitlements or making an award of survivor benefits based on uncertain or ambiguous state court orders in divorce proceedings, the former spouse was not entitled to a survivor annuity.
A similar result was reached in Hinojosa v. Office of Personnel Management, Fed. Cir. No. 06-3073 (11/9/06 nonprecedential), where the court ruled that a second court divorce order awarding a survivor annuity was an improper modification of a first court order. Citing Vaccaro v. OPM, 262 F.3d 1280, 1287 (Fed. Cir. 2001), and Rafferty v. OPM, 407 F.3d 1317, 1323 (Fed. Cir. 2005), the court held that 5 CFR 836.806 and 838.1004(e)(4)(ii)(B) are clear and unambiguous that the order awarding a survivor annuity must be the first order and the first order does not include any court order issued under reserved jurisdiction. Thus the court found that the Qualified Domestic Relations Order (QDRO) was an impermissible modification of the first court order which did not mention an annuity. See 5 USC 8341(h)(4).
Both of these cases point out the unfortunate consequences when an original divorce decree does not properly divide a federal employee’s annuity. It is vital that a court order dividing benefits meet OPM’s regulatory requirements so that the annuity is divided according to the wishes of both parties to the divorce. Sandra Mazliah, a principal at Passman & Kaplan, P.C., has extensive experience in federal employee benefits and can assist in drafting appropriate court orders for acceptance by OPM.
This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide.
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