Fedweek Legal

Under CSRS or FERS a former spouse of a federal employee is only entitled to a portion of the employee’s pension benefits after a divorce if a court order specifically provides for such award. However, this is exactly the opposite of the rule that applies to members of the foreign service. Under the Foreign Service Act, a former spouse who was married to a foreign service member for a requisite number of years of creditable service is entitled to a pro rata share of up to 50 percent of that person’s pension, and also a survivor benefit equal to a pro rata share of the regular survivor annuity, unless otherwise expressly waived or the amount is modified by a spousal agreement or court order. “Accordingly,” said Sandra Mazliah of Passman & Kaplan, P.C., “if the divorce decree or property agreement is silent, the former spouse is entitled to a portion of the benefit. To be effective, and avoid legal battles later, any waiver must expressly refer to the foreign service pension.”

The Uniformed Services Former Spouses’ Protection Act recognizes the right of state courts to distribute military retired pay to a spouse or former spouse. Like CSRS and FERS, there is no automatic entitlement to a portion of the member’s retired pay to a former spouse — a former spouse must have been awarded a portion of a member’s military retired pay in a court order. To be effective, an order dividing retired pay must apply to a member and former spouse who were married to each other for at least 10 years, during which the member performed at least 10 years of creditable military service for retirement purposes. The maximum that can be paid to a former spouse is 50 percent of a member’s disposable retired pay. A state court may not divide a military pension unless the court has jurisdiction over the member by reason of his or her 1) residence, other than because of military assignment, in the territorial jurisdiction of the court; 2) domicile in the territorial jurisdiction of the court; or 3) consent to the jurisdiction of the court.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **