§ 838.1004 Qualifying court orders

5 CFR 838.1004(a)(a) A former spouse is entitled to a portion of an employee's retirement benefits only to the extent that the division of retirement benefits is expressly provided for by the court order. The court order must divide employee retirement benefits, award a payment from employee retirement benefits, or award a former spouse annuity.

5 CFR 838.1004(b)(b) The court order must state the former spouse's share as a fixed amount, a percentage or a fraction of the annuity, or by a formula that does not contain any variables whose value is not readily ascertainable from the face of the order or normal OPM files.

5 CFR 838.1004(c)(1)(c)(1) For purposes of payments from employee retirement benefits, OPM will review court orders as a whole to determine whether the language of the order shows an intent by the court that the former spouse should receive a portion of the employee's retirement benefits directly from the United States.

5 CFR 838.1004(c)(1)(i)(i) Orders that direct or imply that OPM is to make payment of a portion of employee retirement benefits, or are neutral about the source of payment, will be honored unless the retiree can demonstrate that the order is invalid in accordance with § 838.1009.

5 CFR 838.1004(c)(1)(ii)(ii) Orders that specifically direct the retiree to pay a portion of employee retirement benefits to a former spouse (and do not contain language to show the court intends payment from the Civil Service Retirement System) will be honored unless the retiree objects to direct payment by OPM within the 30-day notice period prescribed in § 838.1008, but will not be honored even if the retiree raises only a general objection to payment by OPM within that 30-day notice period.

5 CFR 838.1004(c)(2)(2) For purposes of awarding a former spouse annuity, the court order must either state the former spouse's entitlement to a survivor annuity or direct an employee, Member, or retiree to provide a former spouse annuity.

5 CFR 838.1004(d)(d) For purposes of affecting or awarding a former spouse annuity, a court order is not a qualifying court order whenever—

5 CFR 838.1004(d)(1)(1) The marriage was terminated before May 7, 1985; or

5 CFR 838.1004(d)(2)(i)(2)(i) The marriage was terminated on or after May 7, 1985; and

5 CFR 838.1004(d)(2)(ii)(ii) The employee or Member retired under CSRS before May 7, 1985; and

5 CFR 838.1004(d)(2)(iii)(A)(iii)(A) The employee or Member had elected not to provide a current spouse annuity for that spouse at the time of retirement; or,

5 CFR 838.1004(d)(2)(iii)(B)(B) In the case of a post-retirement marriage, the annuitant had not elected to provide a survivor annuity for that spouse before May 7, 1985.

5 CFR 838.1004(e)(1)(e)(1) For purposes of awarding, increasing, reducing, or eliminating a former spouse survivor annuity, or explaining, interpreting, or clarifying a court order that awards, increases, reduces or eliminates a former spouse annuity, the court order must be—

5 CFR 838.1004(e)(1)(i)(i) Issued on a day prior to the date of retirement or date of death of the employee; or

5 CFR 838.1004(e)(1)(ii)(ii) The first order dividing the marital property of the retiree and the former spouse.

5 CFR 838.1004(e)(2)(2) In paragraph (e)(1) of this section, “date of retirement” means the later of—

5 CFR 838.1004(e)(2)(i)(i) The date that the employee files an application for retirement; or

5 CFR 838.1004(e)(2)(ii)(ii) The effective commencing date for the employee's annuity.

5 CFR 838.1004(e)(3)(3) In paragraphs (e)(1) and (e)(4) of this section “issued” means actually filed with the clerk of the court, and does not mean the effective date of a retroactive court order that is effective prior to the date when actually filed with the clerk of the court (e.g., a court order issued nunc pro tunc).

5 CFR 838.1004(e)(4)(i)(4)(i) In paragraph (e)(1)(ii) of this section, the “first order dividing the marital property of the retiree and the former spouse” means—

5 CFR 838.1004(e)(4)(i)(A)(A) The original written order that first ends (or first documents an oral order ending) the marriage if the court divides any marital property (or approves a property settlement agreement that divides any marital property) in that order, or in any order issued before that order; or

5 CFR 838.1004(e)(4)(i)(B)(B) The original written order issued after the marriage has been terminated in which the court first divides any marital property (or first approves a property settlement agreement that divides any marital property) if no marital property has been divided prior to the issuance of that order.

5 CFR 838.1004(e)(4)(ii)(ii) The first order dividing marital property does not include—

5 CFR 838.1004(e)(4)(ii)(A)(A) Any court order that amends, explains, clarifies, or interprets the original written order regardless of the effective date of the court order making the amendment, explanation, clarification, or interpretation; or

5 CFR 838.1004(e)(4)(ii)(B)(B) Any court order issued under reserved jurisdiction or any other court orders issued subsequent to the original written order that divide any marital property regardless of the effective date of the court order.