How to calculate portion of FERS retirement annuity for ex-spouse

Without seeing the order that was sent to OPM, I can only guess that your former spouse was awarded what OPM terms a pro-rata share award. Generally speaking, OPM will calculate your annuity at the time of your retirement in the same fashion as if you hadn’t been divorced. They will then develop a fraction that they will use to divide your annuity. The order could divide your self-only annuity or your gross annuity – all depends on the wording in the order. The numerator of the fraction is typically the number of months that you were married and a federal employee. In your case, it appears that the court order ended the marriage at the separation date. The denominator will be your total creditable service, including military time and unused sick leave (unless the order stated otherwise). Suppose your career length is determined by OPM to be 276 months and your marriage length was 156 months. The fraction is 156/276 = 56.52%. That represents the marital share of the annuity. If she was awarded 50%, then her award is 28.26%. If your annuity is $3,000 per month, she receives $847.80 per month.
We made a number of assumptions here, and there are other items that might have been addressed in the order, such a survivor annuity and its related cost as well as possibly using a high-3 based upon your date of separation. Orders also state a specific treatment of military deposit service.

Hi: Scenario– Married in 1987, Divorced in1995 with former military spouse. He has 92 months of marriage and 288 months of credible service. I was awarded 45% of disposal military pension and COLAs through end of service/retirement date (288 months), sample retirement annual annuity is $19,799 (disposal income). What is the calculation? I end up with 92/288 = 31.94% but can’t figure out how to get 45% of the $19,799 out of the 31.94%
Also FERS portion states spouse gets 50% of FERs annuity based only upon wife’s first five years of fed svc, and does not include COLAs after the marital separation date 7/95. Is the calculation a simple flat 50% of whatever the first five yrs High-three three x 5% divided by 2? or is the calculation the same as the military pension calculation above? Divorce decree language for military spouse division of military pension is the standard language to include COLAs applicable through retirement date (doesn’t stop at marital separation date). SBP was properly addressed, not an issue.
Appreciate your help.

With respect to the military retiree portion divorce of your question, I am unable to respond as that is not my area of expertise.  However, based on a statement within your question, you indicate you were only married 82 months or 7.6 years.  With that information, the following link might assist you in seeing how this payment will be made to you:  http://www.livesaymyers.com/10-year-rule-military-divorce/
As stated in my previous response to the original question above, without seeing the court order that was sent to OPM, it is impossible to determine how the FERS annuity is divided.  For example, you state “does not include COLAs after the marital separation.” Cost of Living Adjustments are not paid to employees, only to retirees.  So that statement would have no bearing on the FERS division of annuity.
And, FYI, OPM uses, as a default, the high-3 average salary at the time of retirement unless the divorce decree states otherwise.  This is just one example to help you appreciate why I am unable to be more specific in my response.

I apologize in advance as military retirements and their division are my within my knowledge base. When I get home Wednesday I will gladly do some research to send your way.

What language do I use In a COAP so that my former wife’s share of my annuity is frozen as of the divorce filing date.

COAP language is best left to an experienced professional. There are a couple of ways that could be accomplished. You could calculate what the monthly amount of your retirement benefit would have been as of that date and order OPM to pay your former spouse a specified dollar amount per month based upon that result. The other way is to award the former spouse a prorata share under 5 CFR 838.621, but specify the end date of the marriage as the filing date and specify under 5 CFR 838.622(c)(1)(ii) that OPM is to calculate the award at your retirement using the high-3 that was in place at the time of filing. That will essentially hold your former spouse’s award to what was earned as of the filing date.

Would the following language freeze the marital share of the former spouse or would OPM Interpret this as a pro-rata share?
“This Order assigns to Former Spouse an amount equal to Fifty Percent (50.00 %) of the Marital Portion of the Employee’s Gross Monthly Annuity (including any military benefits payable by the OPM and benefits accrued while covered under CSRS, if any) determined as of the date the marriage ended ( [Insert Marriage End Date] ). For purposes of calculating Former Spouse’s share of Employee’s benefit, the Marital Portion shall be determined by multiplying the Employee’s Gross Monthly Annuity earned through the date the marriage ended ([Insert Marriage End Date]) by a fraction (less than 1.0), the numerator of which is the total number of months of Creditable Service earned under the FERS during the marriage ( from [Insert Marriage Start Date] to [Insert Marriage End Date] ) , and the denominator of which is the total number of months of the Employee’s Creditable Service accrued under the Federal Employees Retirement System through [Insert Marriage End Date]. (The numerator and denominator shall include, as applicable, any military service credited to the CSRS and/or FERS and service credited under the CSRS if the Employee made an irrevocable one-time election to transfer from CSRS into FERS). The marriage began on [Insert Marriage Start Date].”

It appears you have just copied the sample paragraph from The Attorney Handbook RI-38-116.  As this matter is very important to properly memorialize, the assistance of an experienced professional from this area of expertise is essential in developing the proper language for your settlement agreement and neither this forum nor the FAQ section of the attorney handbook is that forum.

My ex-husband recently retired. I remarried after our divorce. My spouse recently passed away. Do I now qualify for a portion of my ex-husband’s retirement? We were married for 10 years.

Steven, the retirement application will ask you if you have a former spouse to whom the court order gives them a portion of your federal pension or a survivor benefit, if the response is “NO” then you do not need to attach a copy of the divorce decree and your former spouse does not need to be notified.

I am unable to calculate what would be provided to your former spouse as the court will determine that. Having said that, some information that might be helpful to you. If your former spouse is awarded what OPM terms a pro-rata share award. Generally speaking, OPM will calculate your annuity at the time of your retirement in the same fashion as if you hadn’t been divorced. They will then develop a fraction that they will use to divide your annuity. The order could divide your self-only annuity or your gross annuity – all depends on the wording in the order. The numerator of the fraction is typically the number of months that you were married and a federal employee. The denominator will be your total creditable service, including military time and unused sick leave (unless the order stated otherwise). Suppose your career length is determined by OPM to be 276 months and your marriage length was 156 months. The fraction is 156/276 = 56.52%. That represents the marital share of the annuity. If she was awarded 50%, then her award is 28.26%. If your annuity is $3,000 per month, she receives $847.80 per month. There are other items that might be addressed in the order, such a survivor annuity and its related cost as well as possibly using a high-3 based upon your date of separation. Orders also state a specific treatment of military deposit service. Be sure your COAP is clear in what is to be provided and who pays for what.

I’ve read through the questions and excellent answers, Elaine, but didn’t see an answer to a question I have: is the OPM calculation for for annuity division just based on years married during my federal service (we were married for nearly 12 years of my 37+ years federal service), or does it factor in that my salary was much higher during my later years of service (when we were married) than during my earlier years? Thanks.

It appears the agency HRO has provided the FERS participant the amount that he has paid into the Civil Service Retirement and Disability Fund during his 13 years of federal service. If he were to resign federal service and filed for a refund of these contributions, this is the amount he would receive plus interest. However, since he has 10 or more years of federal service, if he resigned his federal position prior to becoming eligible for an immediate retirement and did not apply for a refund of his contributions, he would be eligible for a deferred annuity. This annuity would be calculated based on his years of service x his high-3 average salary x 1%. Thirteen years of service would produce a 13% x high-3 average salary pension for life. Advise on this should be obtained from a qualified individual who deals with the division of federal retirement benefits pursuant to divorce.

Your court order must state what she gets, a percentage or a dollar amount. OPM is the only one that can tell you unless it states it in the court order.

Hi Elaine: Here is my scenario - married in 1990. Me - about 2 years of federal service prior to marriage. Him - about 10 years military service prior to marriage. He converted to civilian federal service in 1990. In 1993 we "bought back" his military retirement with joint marital funds and had it applied to his FERS. We both resigned from federal service in 2000. So his years of creditable service were almost 20 when he resigned.
In December of 2018 we got divorced. We agreed in the MSA that we would each get 50% of the other's FERS. Our intention was "entire" FERS. Court Order says that "The Former Spouse's "Share" shall be a "pro rata share" which means one half the fraction whose numerator shall be the total number of months of creditable service performed prior to the parties' date of divorce, and the denominator shall be the total number of months of the Employee's Federal Government creditable service performed at retirement."
But OPM responded with "By court order your marital share of your former spouse's retirement benefit is 50% of months years of service during the marriage (date of marriage - date of divorce) divided by the the total number of months of Federal service to be credited when your former spouse retires..." They added "during the marriage" even though the court order did not include that phrase.
My question: How do I get this fixed? I have the name and email of the paralegal at OPM who processed the court order.

OPM is the agency that interprets the language in the decree. If you feel they are interpreting it incorrectly as written, you need to contact them. Possibly your decree is not written as you had hoped? In that case you would have to have the decree corrected.

How do I calculate what I have in FERS to date (financial advisor is requesting)? Additionally, I was recently divorced - court order states Alternate payee (my x) is awarded 50% of my FERS accrued from June 11, 2002 through January 1, 2016 based on my high 3 yrs average of pay as of January 1, 2016, in addition increases, to include COLA, etc. Do I need to send my divorce papers to OPM to figure this out? When will my x start receiving this money? Is there a person at OPM that I can speak with?

If you have not changed agencies, a box on your Leave and Earnings Statement entitlement “retirement contributions this agency” will give you that amount however, that means nothing when it comes to retirement. Your retirement is based on your high-3 average salary x your length of service x your percentage. The money in the retirement fund serves no purposes for calculating your retirement. When you retire, your retirement application will ask if you have a former spouse entitled to a portion of your annuity or a survivor benefit and since the answer is yes, you will need to submit a certified copy of the divorce decree with your retirement application. Your former spouse is not entitled to your FERS until you retire. There are people at OPM however they will not talk to you until you retire and it applies to you.

I am a FERS retiree considering divorcing my husband. Started fed work in 1989, retired in 2017. All FERS. My question is, will OPM freeze my monthly retired pay during the divorce? I do not bring in much and it would be devestating if they did. Please respond

My divorce decree states "Wife will receive 50% of the marital portion accrued during the marriage" COAP states "Wife will receive a pro-rata share" OPM is paying ex-wife 50% of my gross annuity, they cut it straight down the middle. How could this be right?

Trying to file for separation and divorce within the next 10 months. I will not hit 10 years until June 2021. If I file for separation and am divorced before reaching my 10 year mark, will my ex-spouse be entitled to any of my FERS annuity since I won't have the minimum service time (10 years) and/or I won't be able to start my annuity until I hit MRA of 62 (which is another 6 years away)? What about my TSP? Finally, if I am already divorced, can I withdraw my spouse's survivor retirement benefits (SRB)? I know if I am still married at time of retirement, the wife has to and sign some paperwork saying she agrees with declining of SRB. What source of language would need to be on the divorce decree if the wife declines any future rights to my FERs annuity and/or TSP that would be recognized by OPM? As of this writing, my wife has stated that she only wants half of my military retirement and my continuation/payment of the SRB. Of course, this is all subject to change once she talks with a lawyer. I've been told that if everything is in a separation agreements, then in most cases, the judge will not vary from the division of assets as agreed in the separation paperwork...is this true?

First, once you have reached the 5-year mark, you become eligible for a FERS annuity, be it immediate, if age 62 or older, or deferred, if you walk away from the government and leave your FERS contributions in the retirement fund. The only way your former spouse will be eligible for your FERS annuity is IF the divorce decree provides her with a benefit OR is silent on the subject. If your FERS retirement is not provided to her or if it states she waives all rights to your FERS and/or TSP, then she gets nothing. You are correct, if you are married at the time of retirement, she must sign and notarize a document waiving her right to the FERS survivor benefit. With the federal government, it must either be stated or not mentioned in the decree.

Hi Elaine, really appreciate your answers. Hopefully you can confirm (or not) my interpretation of my DRO language. The term "pro rata" share was not used in the DRO or in the Decree, but the intent of pro rata share is what we had agreed to when the DRO was being prepared (for my ex-spouse to receive half of my benefits earned during course of marriage). DRO language: "50% of plan participant's (me) FERS benefits as of the date of Decree of Divorce being filed, (date given)." In a later paragraph, the start date of the marriage is given. The DRO was filed after the Decree was filed. The Decree only stated "Petitioner (ex-spouse) shall receive 50% the value of Respondent's (me) FERS by DRO". Can you tell if the DRO language used is sufficient enough for OPM to use "pro rata share" calculation? Thanks & very very interested in your answer.

It's hard to answer this without seeing the DRO itself, but if OPM has accepted the DRO, then you should have a letter from OPM stating the same. You can also call OPM's Court Ordered Benefits Branch at 202-606-0222 and ask if they have a valid DRO on file.
Assuming you have provided all of the necessary text, then OPM should have no issues interpreting that as a prorata share under 5 CFR 838.621. Any order with an "as of" date is, under federal regulations, is interpreted as a prorata share. As long as OPM is provided with the dates to use as the start and end of the marital period, then they should be able to make that determination with the DRO language you provided.
However, please be aware that OPM has taken the stance, without proper notification, but taken it none-the-less, to include the FERS Annuity Retirement Supplement when dividing your benefit to the former spouse, not just the FERS portion of the benefit UNLESS it specifically states that the supplement is not to be included in the calculation. As it stands NOW, OPM will divide the supplement in the same percentage as the FERS portion. This is being challenged in court, but at this time, this is how it is being handled by OPM.

You are very welcome and good luck.

Divorce matters are best handled by professionals that are experienced in such matters. Marital shares can't be determined until the party whose benefit is being divided, retires.
There is no automatic division of FERS triggered by divorce. You and she are free to arrive at any division that you and she can agree upon. That being said, the overwhelming majority of such matters are adjudicated with an award of 50% of the marital share, also called a "prorata share" in the Code of Federal Regulations at 5 CFR 838.621. When awarding a prorata share, in the Court Order Acceptable for Processing (COAP), we simply provide the starting and ending dates of the marital period. OPM will perform the calculation of the award at the time she retires. If a Former Spouse Survivor Annuity is also awarded, that language needs to appear in the COAP as well. A COAP should be drafted by an experienced professional.
Your military retirement is paid by DFAS. In order to have DFAS honor a Military Pay Division Order (MPDO) to divide your Military Retired Pay, you must have been in active duty and married for a period of at least ten years, which appears to be the case here. Again, hire an experienced professional to create the MPDO for DFAS.