Court orders related to a divorce or separation can have a wide range of effects on several areas of a federal employee’s benefits, such as:
- divide your annuity;
- divide a refund of your retirement contributions made when you leave federal service before retirement;
- permit your ex-spouse to continue health insurance coverage;
- require you to assign your life insurance;
- garnishee your annuity to pay alimony, child support, in cases involving child abuse, or for Chapter 13 bankruptcy; or
- require certain distributions from your Thrift Savings Plan account.
Court Orders and Annuities
The rules governing federal employee retirement benefits are in Title 5 of the United States Code and Title 5, Part 838, of the Code of Federal Regulations. They differ substantially from court orders that affect private sector pensions, which are governed by the Employee Retirement Income Security Act (ERISA). The Civil Service Retirement System and Federal Employees Retirement System are exempted from ERISA as governmental plans.
Court orders that are used to divide private sector pension plans, called Qualified Domestic Relations Orders or “QUADROS,” may not be valid under the FERS or CSRS. For example, under ERISA, the former spouse’s share of the benefit can begin when the employee reaches the minimum retirement age, even if the employee is still working. However, this benefit is not available under the CSRS or FERS because court orders cannot affect a retirement benefit until the benefit is actually payable to the former federal employee. This means that the employee must be eligible for the benefit and must have made a proper application for the benefit.
A court order following annulment of marriage, legal separation, or divorce can divide or apportion an annuity. The order must expressly direct the Office of Personnel Management to pay a portion of your monthly benefit. The spouse’s share must be stated as a fixed amount, a percentage or fraction of your annuity, or by a formula with a readily apparent value. The amount cannot exceed the money payable after deductions for taxes and insurance.
Note: For a FERS retiree eligible for the “special retirement supplement”—which replicates the value of Social Security benefits earned while in federal employment and is paid until age 62—that supplement is divided by a court order in the same way as the basic annuity, unless specified otherwise.
Following the dissolution of a marriage, any survivor benefit you elected at retirement is no longer payable. A monthly survivor benefit would be payable to your former spouse after your death if one is provided by court order or your new election. Your marriage must have lasted for at least nine months to allow a court-ordered benefit. A former spouse survivor annuity ends if the former spouse remarries before becoming age 55.
In addition, a retiring employee may voluntarily elect a fully or partially reduced annuity to provide a former spouse survivor annuity. However, if the employee has remarried, this election may only be made if the current spouse consents to it.
Under CSRS, the maximum benefit payable after your death to survivors other than children is 55 percent of your annual benefit. Under FERS, the maximum is 50 percent. So, the benefit payable to your husband or wife equals the difference between the court-ordered benefit for your ex-spouse and the maximum benefit payable. For example, if the court awarded your former spouse a benefit equal to 35 percent of your CSRS annuity, your husband or wife could only receive a benefit equal to 20 percent.
An insurable interest election can be made at retirement to provide a current spouse with additional survivor benefits if the retiree is in good health.
Death while in service—If death occurs as an employee, a court-ordered survivor benefit is payable to a former spouse if the employee completed at least 18 months of creditable civilian service, and dies while under the CSRS or FERS systems. Under CSRS, a survivor annuity is payable. Under FERS, a lump sum death benefit is payable, and a survivor annuity is also payable if the employee has 10 years of creditable service.
If a separated former employee dies before retirement under CSRS, no survivor annuity can be paid to a former spouse, despite the terms of the court order. In certain limited circumstances, under FERS, a survivor annuity for a former spouse may be payable if a separated former employee dies before retirement.
Restrictions on modifications—While orders can be changed before the employee retires or dies, in general they cannot be modified to affect survivor benefits after the employee retires or dies.
Court Orders and Refunds
A court order may provide for all or part of a refund of employee retirement contributions to be paid to the former spouse. A court order also may block payment of a refund, but only if the order directs OPM not to pay the refund and the order also grants a survivor annuity or a portion of a retiree annuity to a legally separated or former spouse.
Court Orders and Health Benefits
A former spouse who is awarded a portion of a CSRS or FERS annuity or a survivor annuity by a qualifying court order, even though the benefit is not yet payable, may be eligible to enroll for health benefits coverage under the Federal Employees Health Benefits program under certain conditions. Note that the former spouse is not eligible to retain coverage under the employee’s family enrollment.
The former spouse or his or her attorney should contact the employee’s personnel office concerning information about a former spouse health benefits enrollment.
FEHB coverage may also be temporarily continued under the temporary continuation of coverage authority.
Court orders arising from a divorce may mandate employees to provide Federal Employees Health Benefits coverage to children by enrollment in self-and-family coverage. Employees who are not enrolled in FEHB will be enrolled automatically in the lowest-cost national plan. When an employee is enrolled in a health maintenance organization, agencies must determine whether each child is in the plan’s service area. If not, agencies must determine if there is a reciprocity agreement allowing enrollees of one HMO to receive services from another. If such an agreement exists, the employee may remain in the HMO. However, if there is no agreement, the employee must change to a fee-for-service plan. If the employee fails to make the change, the agency will change the coverage to Blue Cross.
Employees subject to such orders are not allowed to make any changes that would affect their children’s FEHB coverage after retirement.
Court Orders and Life Insurance
Public Law 103-336 allows an employee or retiree who is enrolled in the Federal Employees’ Group Life Insurance (FEGLI) program, to assign insurance to another person, a firm or a trust (an “assignee”). Assigning benefits transfers ownership of FEGLI coverage to the assignee. The individual who makes the assignment no longer has control over the insurance coverage and can no longer designate beneficiaries. Assignment is irrevocable, and applies to Basic, Option A, and Option B insurance.
A court order may require assignment of FEGLI benefits to a former spouse or children—but the individual, not the employing agency or OPM, must execute the proper form. The form for making an assignment is RI 76-10.
A divorce does not affect a designation of beneficiary that was filed at some earlier time. An employee or retiree who has designated a now former spouse to receive life insurance or retirement lump sum benefits must file new designations in order for any benefits that become payable to go to someone else. Designations of beneficiary may be changed at any time.
Court Orders and Garnishment of Benefits
Garnishment is a legal process under state law for enforcing existing legal obligations. Benefits under the Civil Service Retirement System or the Federal Employees Retirement System can be garnisheed only for alimony, child support, or in cases of child abuse. The garnishment must conform to all state law requirements for garnishment actions involving private employers, and is subject to the limitations in 5 CFR 581. See Garnishment.
Court Orders and the TSP (Thrift Savings Plan)
A court decree of divorce, annulment or legal separation can make an award from a participant’s TSP account to someone other than the participant, such as a spouse or a former spouse. The TSP Board will honor such orders if they are issued in connection with such an action and they comply with the Board’s regulations. The board also will honor preliminary court orders for the purposes of freezing a participant’s account as well as amendatory court orders issued after such a decree.
When the TSP receives a court order, the account of the participant is frozen, meaning that the participant is not allowed to withdraw the account, except to meet certain IRS mandatory distributions, or receive a loan from the account. All other account activity is permitted, however. If the Board determines that the court order is qualifying, it issues a statement regarding the effect that compliance will have on the account and a description of the method by which any entitlement was calculated, the results of the calculation and the circumstances under which payment will be made.
The Board will make only one disbursement under a court order even if the order on its face requires a series of payments.
After a payment is made, the account will be unfrozen.