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MARRIED – ELECTED A SURVIVOR BENEFIT – THEN DIVORCED

DIFFERENT SYSTEMS - DIFFERENT RESULTS

ERISA – FEDERAL – MILITARY

This Newsletter's Message.

Family practitioners must be alert to the following circumstance regarding Domestic Relations Orders against Federal Civil Service Retirement System and the Military Retirement System.

an election of a survivor annuity benefit by a married spouse for her or his then current spouse is automatically terminated by post-retirement divorce unless prompt and appropriate action is taken.

A Popular Misconception.

That a married participant who elects at retirement a Joint and Survivor Annuity with her or his then spouse has made an "irrevocable election". An election that is not subject to termination as a result of post-retirement divorce.

For Example:

Husband, a member of the Federal Employees Retirement System is married at the time of his retirement. He and his wife agree that he elect a Joint and Survivor Annuity benefit for his Wife. The Husband complies and at retirement elected a Joint and Survivor Annuity. Eighteen months after retirement the parties divorce. The Final Judgment of Dissolution of Marriage and the Court Order Acceptable for Processing both provide that Wife is to receive 35% of Husband's monthly retirement annuity. The attorney representing the Wife knew that at the time of Husband's retirement the Wife had been designated as the Joint and Survivor Annuity beneficiary. Based on this "knowledge" this attorney concluded that there was no need to provide in either the Marital Settlement Agreement or the Final Judgment of Dissolution of Marriage for a Survivor Benefit for the Wife.

Three years subsequent to divorce the Husband died.

At the time of the divorce, a Court Order Acceptable for Processing was submitted to and accepted by Office of Personnel Management. Shortly thereafter, monthly annuity benefits (her 35% annuity interest) begin to be paid to the Former Spouse.

Former Husband Dies.

Upon her Former Husband's death the Former Spouse based on his retirement election and her attorney's advice anticipates receipt of her survivor annuity benefits. No such benefit is paid to the Former Wife. The Former Wife contacts her attorney and is reassured that this is simply an "administrative error". The attorney contacts OPM and is advised that this Former Spouse has no entitlement to a Former Spouse Survivor Annuity based on the clear language of the Statutes.

Caution – ERISA Rules Are Not Applicable to Federal and Military Plans.

Family practitioners are correct to conclude that in virtually all cases an ERISA designation of a spouse as the Joint and Survivor Annuity beneficiary is irrevocable upon receipt of the first retirement annuity check by a retiree. However, ERISA rules are not applicable to either the Federal Civil Service or the Military Retirement System. For both of these non-ERISA systems, absent prompt and appropriate action, a divorce terminates the survivor rights of the Former Spouse.

Guideline:

  • Federal Civil Service: Action must be taken within two years of the divorce. [1]
  • Military: Action must be taken within one year of the divorce.

Options Available to Disappointed Former Spouse.

This Former Spouse of a Federal Employee contacted a Pension Valuator who computed the Present Cash Value of this spouse's "lost" Joint and Survivor Annuity Benefits. The financial loss to this spouse pursuant to the Pension Valuator Report is: $557,401.48

The Former Spouse after receipt of this information instituted a malpractice suit against her attorney for the full amount of her financial "loss".

Statistical Basis of Former Spouse's Claim:

Former Spouse's Age at Time of Loss 58

Former Spouse's Life Expectancy 24.3 Years

30 Yr. T-Bond Rate Used 2.88%

Anticipated Monthly Survivor Annuity $2,660.00

Financial "Loss" $557,401.48

Caution!

Attorneys and parties to a divorce action will note that the preparation of a Domestic Relations Order is a legal function. To delegate this function to a non-lawyer is likely to jeopardize an attorney's malpractice coverage and can be to the detriment of the parties to the divorce action. Prior to retaining a non-lawyer to advise or to prepare a Domestic Relations Order, it is suggested that attorneys confirm with their malpractice carrier that such retention does not void their malpractice protection. Parties to the divorce action will confirm that the "advisor" has proper legal credentials.

Consider this: The unauthorized practice of law, e.g. preparation of a Court Order by a non-lawyer constitutes a 3rd class felony in Florida.

Citations:

FERS 5 USC 8417(b)(2)

CSERS 5 USC 8339(j)(3)

MILITARY 10 USC 1448 (b)(3)(A)(iii)



[1] For a good discussion of this issue, see: Downing v. OPM, U.S. Ct. of App. Fed.Cir., 619 F.3d 1374