A recent court case may serve as a wake-up call on how to word separation agreements and divorce decrees.
On September 20, 2010, the United States Court of Appeals for the Federal Circuit affirmed a decision of the Merit Systems Protection Board denying survivor benefits to Billye D. Downing of West Columbia, Texas.
Here are the facts of the case. In 2003, Ms. Downing filed for divorce. In 2004, Randall Scott Downing retired from the Department of the Army and elected a survivor benefit for his then wife. Shortly after retiring, Mr. and Ms. Downing signed a separation agreement providing that Ms. Downing would receive, among other things, one-half of his civil service retirement benefits. There was no mention of survivor benefits. And her entitlement to a survivor benefit was automatically canceled when the divorce became final in 2006.
In 2006 and 2007, Mr. Downing received the annual notice OPM sends to all CSRS annuitants, explaining that he must make a new survivor annuity election within two years of divorce to provide a survivor annuity benefit for a former spouse. Because Mr. Downing didn’t do that, when Ms. Downing applied to OPM for survivor annuity benefits after his death in 2008, her application was denied.
Ms. Downing’s appeal of that decision to the Merit Systems Protection Board was unsuccessful because a survivor benefit wasn’t expressly provided for in the divorce decree. Further, Ms. Downing’s contention that Mr. Downing intended to do so wasn’t binding on OPM, which must follow the law. Finally, OPM did provide formal notice to Mr. Downing, which he chose not to act on.
Although Ms. Downing didn’t appeal the decision of the Board, she did file a petition for review with the circuit court. Her arguments that the separation letter of agreement entitled her to such a benefit and that Mr. Downing suffered from adult Attention Deficit Hyperactive Disorder and did not receive adequate notice from OPM, did not sway the court.
It denied her petition and affirmed the decision of the Board in the following words: “The clear statutory language…makes no exception to the requirement that a new election must be made within two years after the marriage dissolves where the employee received adequate notice… Because Mr. Downing received the statutorily required notice and failed to file a new election after the date of their divorce, Ms. Downing is not entitled to a survivor annuity irrespective of Mr. Downing’s intent. Accordingly, Mr. Downing fails to establish that she was entitled to survivor annuity benefits.”
Note: OPM continued to withhold amounts from Mr. Downing’s annuity payments to provide for a survivor annuity instead of canceling those deductions when it received the divorce decree. Could Ms. Downing make a successful claim for at least a portion of those excess deductions? Only time will time.
