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Federal Retirement Benefits - Survivor Benefits (Less than 10yrs. of Marriage) (Florida)FLORIDA – DIVORCE – FEDERAL RETIREMENT BENEFITS (FERS)



Florida attorneys are alerted to the traps embedded in the federal statutes that can cause the practitioner to craft a settlement awarding the Former Spouse of certain federal employees (FERS) a Survivor Annuity that pleases the Former Spouse, but when the COAP ([1]) is reviewed for acceptance by the Office of Personnel Management (OPM) it will be found not acceptable and rejected by OPM. [2] Avoiding misplaced client expectancies is the focus of this article.

This trap relates to divorces occurring prior to the employee completing ten years of federal service.

Reason for Rejection: See 5 C.F.R. 838.921(b)(2).

In light of this Federal Obstacle to an award of a Former Spouse Survivor Annuity, the concern of the attorney representing the Former Spouse is:

What security is available to a Former Spouse whose divorce occurred prior to the employee attaining ten years of credited federal service, should the employee spouse die while actively employed?

Suggested Mitigation.

The informed Florida divorce practitioner is familiar with 5 U.S.C. 8442(b). Although a Former Spouse Survivor Annuity is not available, other forms of security are. Specifically, the Basic Employee Death Benefit.

  • 50% of the employee's final salary (average salary, if higher), plus
  • For 2014, a lump sum of approximately $32,000.00 [3]

For example:

FERS employee, Jim Waters at the time of his divorce had an annual salary of $75,000.00. Based on this pay the Former Spouse may be awarded (by a COAP):

½ of $75,000.00 = $37,500.00

Lump Sum of: $31,500.00

Total Death Benefit: $69,000.00

Moreover, a well-crafted COAP will also award the continuing COLA increase in the Basic Employee Death Benefit (BEDB).

Based on this suggested mitigation, a Former Spouse is afforded some protection up to the retirement of the member.

Attorney Caveat:

It is suggested that the attorney representing the Former Spouse make clear to the client that a Former Spouse Survivor Annuity was not available since the length of the marriage was less than ten years. This attorney will emphasize that securing for the Former Spouse the Basic Employee Death Benefit, represents a best effort in light of the federal prohibition of a Former Spouse Survivor Annuity for the Former Spouse of an employee with less than ten years of service at the time of divorce.

[1] Federal Equivalent of a QDRO.

[2] In some instances OPM does not reject the Order, but, simply refuses to implement offensive sections of the Order.

[3] The 2014 amount. This sum is annually increased by a COLA factor.