A Handbook for
 

Attorneys on
 

Court-ordered
 

Retirement, Health
 

Benefits and Life
 

Insurance Under the
 

• Civil Service Retirement Benefits

• Federal Employees Retirement Benefits

• Federal Employees Health Benefits

• Federal Employees Group Life Insurance Program

United States 

Office of Retirement and 

Personnel Insurance 

Management Service 

 RI 38-116 

Revised July 1997 
Blank Page 
Table of Contents 

Table of Contents 

Introduction ........................................................ 1
 

Retirement ......................................................... 5
 

Preparing a Court Order .............................................. 6
 

Exemption from ERISA ............................................. 6
 

Benefits payable .................................................. 6
 

Information Available From the Federal Government ............................ 7
 

Information available on current employees ................................ 7
 

Information on retirees and former employees .............................. 8
 

Information Not Available From the Government .............................. 8
 

CSRS Statutory Provisions ............................................. 11
 

§ 8346. Exemption from legal process; recovery of payments ....................... 11
 

§ 8345. Payment of benefits; commencement, termination, and waiver of annuity .......... 12
 

§ 8341. Survivor annuities ............................................. 13

§ 8342. Lump-sum benefits; designation of beneficiary; order of precedence ............. 16
 

FERS Statutory Provisions ............................................. 17
 

§ 8470. Exemption from legal process; recovery of payments ....................... 17
 

§ 8467. Court orders ................................................. 17

§ 8445. Rights of a former spouse ........................................ 18
 

§ 8401. Definitions .................................................. 21

§ 8424. Lump-sum Benefits; designation of beneficiary; order of precedence ............. 21
 

Retirement Regulations ................................................ 23
 

How the Regulations Are Organized ....................................... 23
 

Table of Contents 

Subpart A--Court Orders Generally ...................................... 30
 

ii 
Table of Contents 

ORGANIZATION AND STRUCTURE OF REGULATIONS ON COURT ORDERS ....... 30
 

§ 838.101 Purpose and scope. ...................................... 30
 

§ 838.102 Regulatory structure. ..................................... 31
 

§ 838.103 Definitions. ........................................... 32

Civil Service Retirement System ................................... 32
 

Court order ................................................ 32
 

Court order acceptable for processing ................................ 32
 

Employee .................................................. 32
 

Employee annuity ............................................ 32
 

ERISA ................................................... 33
 

Federal Employees Retirement System or FERS ......................... 33
 

Former spouse .............................................. 33
 

Former spouse survivor annuity ................................... 33
 

Gross annuity ............................................... 33
 

Member ................................................... 33
 

Net annuity ................................................. 33
 

Reduction to provide survivor benefits ............................... 34
 

Refund of employee contributions .................................. 34
 

Separated employee ........................................... 34
 

STATUTORY LIMIT ON COURT'S AUTHORITY .......................... 34
 

§ 838.111 Exemption from legal process except as authorized by Federal law. ....... 34
 

DIVISION OF RESPONSIBILITIES .................................... 35
 

§ 838.121 OPM's responsibilities. .................................... 35
 

§ 838.122 State courts' responsibilities. ................................ 35
 

§ 838.123 Claimants' responsibilities. ................................. 35
 

§ 838.124 Employees' and retirees' responsibilities. ........................ 36
 

PROCEDURES APPLICABLE TO ALL COURT ORDERS ..................... 36
 

§ 838.131 Computation of time. ..................................... 36
 

§ 838.132 Payment schedules. ...................................... 36
 

§ 838.133 Minimum awards. ....................................... 37

§ 838.134 Receipt of multiple court orders. .............................. 37
 

§ 838.135 Settlements. ........................................... 38

§ 838.136 Administrative appeal rights. ................................ 38
 

ADDRESS FOR FILING COURT ORDERS WITH OPM ...................... 39
 

Appendix A to Subpart A of Part 838--Addresses for Serving Court Orders Affecting
 

CSRS or FERS Benefits. ........................................ 39
 

Subpart B--Procedures for Processing Court Orders Affecting Employee Annuities ..... 40
 

REGULATORY STRUCTURE ........................................ 40
 

§ 838.201 Purpose and scope. ...................................... 40
 

iii 
Table of Contents 

AVAILABILITY OF FUNDS ......................................... 40
 

§ 838.211 Amounts subject to court orders. ............................. 40
 

APPLICATION AND PROCESSING PROCEDURES ........................ 41
 

§ 838.221 Application requirements. .................................. 41
 

§ 838.222 OPM action on receipt of a court order acceptable for processing. ........ 42
 

§ 838.223 OPM action on receipt of a court order not acceptable for processing. ..... 44
 

§ 838.224 Contesting the validity of court orders. .......................... 45
 

§ 838.225 Processing amended court orders. ............................. 45
 

PAYMENT PROCEDURES ......................................... 46
 

§ 838.231 Commencing date of payments. .............................. 46
 

§ 838.232 Suspension of payments. ................................... 46
 

§ 838.233 Termination of payments. .................................. 46
 

§ 838.234 Collection of arrearages. ................................... 47
 

§ 838.235 Payment of lump-sum awards. ............................... 47
 

§ 838.236 Court orders barring payment of annuities. ....................... 47
 

§ 838.237 Death of the former spouse. ................................. 48
 

PROCEDURES FOR COMPUTING THE AMOUNT PAYABLE ................. 48
 

§ 838.241 Cost-of-living adjustments. ................................. 48
 

§ 838.242 Computing lengths of service. ............................... 49
 

§ 838.243 Minimum amount of awards. ................................ 49
 

Subpart C-- Requirements for Court Orders Affecting Employee Annuities ........... 50
 

§ 838.301 Purpose and scope. ...................................... 50
 

§ 838.302 Language not acceptable for processing. ......................... 50
 

Qualifying Domestic Relations Orders. ............................... 50
 

Benefits for the lifetime of the former spouse. .......................... 51
 

§ 838.303 Expressly dividing employee annuity. .......................... 51
 

§ 838.304 Providing for payment to the former spouse. ...................... 51
 

§ 838.305 OPM computation of formulas. .............................. 52
 

§ 838.306 Specifying type of annuity for application of formula, percentage or fraction. . 54
 

Subpart D--Procedures for Processing Court Orders Affecting Refunds of Employee
 

Contributions ................................................... 55
 

REGULATORY STRUCTURE ........................................ 55
 

§ 838.401 Purpose and scope. ...................................... 55
 

AVAILABILITY OF FUNDS ......................................... 56
 

§ 838.411 Amounts subject to court orders. ............................. 56
 

APPLICATION AND PROCESSING PROCEDURES ........................ 56
 

§ 838.421 Application requirements. .................................. 56
 

iv 
Table of Contents 

§ 838.422 Timeliness of application. .................................. 57
 

§ 838.423 OPM action on receipt of a court order acceptable for processing. ........ 57
 

§ 838.424 OPM action on receipt of a court order not acceptable for processing. ..... 59
 

§ 838.425 Contesting the validity of court orders. .......................... 59
 

PAYMENT PROCEDURES ......................................... 60
 

§ 838.431 Correcting failures to provide required spousal notification. ............ 60
 

§ 838.432 Court orders barring payment of refunds. ........................ 60
 

PROCEDURES FOR COMPUTING THE AMOUNT PAYABLE ................. 61
 

§ 838.441 Computing lengths of service. ............................... 61
 

Subpart E-- Requirements for Court Orders Affecting Refunds of Employee
 

Contributions ................................................... 62
 

§ 838.501 Purpose and scope. ...................................... 62
 

§ 838.502 Expressly dividing a refund of employee contributions. ............... 62
 

§ 838.503 Providing for payment to the former spouse. ...................... 63
 

§ 838.504 OPM computation of formulas. .............................. 63
 

§ 838.505 Barring payment of refunds. ................................ 64
 

Subpart F--Terminology Used in Court Orders Affecting Employee Annuities or Refunds
 

of Employee Contributions .......................................... 65
 

REGULATORY STRUCTURE ........................................ 65
 

§ 838.601 Purpose and scope. ...................................... 65
 

IDENTIFICATION OF BENEFITS ..................................... 66
 

§ 838.611 Identifying the retirement system. ............................. 66
 

§ 838.612 Distinguishing between annuities and contributions. .................. 66
 

COMPUTATION OF BENEFITS ...................................... 67
 

§ 838.621 Prorata share. .......................................... 67

§ 838.622 Cost-of-living and salary adjustments. .......................... 68
 

§ 838.623 Computing lengths of service. ............................... 69
 

§ 838.624 Distinguishing between formulas and fixed amounts. ................. 71
 

§ 838.625 Types of annuity. ....................................... 71
 

MODEL PARAGRAPHS ........................................... 72
 

Appendix A to Subpart F of Part 838--Recommended Language for Court Orders
 

Dividing Employee Annuities. .................................... 72
 

TABLE OF CONTENTS .......................................... 73
 

000 Series--Special Technical Provisions. ............................ 74
 

¶001 Language required in Qualified Domestic Relations Orders. ........... 74
 

v 
Table of Contents 

100 Series--Identification of the benefits and instructions that OPM pay the
 

former spouse. ......................................... 74
 

¶101 Identifying retirement benefits and directing OPM to pay the former spouse. 74
 

¶111 Protecting a former spouse entitled to military retired pay. ............ 75
 

200 Series--Computing the amount of the former spouse's benefit. ........... 75
 

¶201 Award of a fixed monthly amount. ........................... 75
 

¶202 Award of a percentage. ................................... 76
 

¶203 Award of a fraction. .................................... 76
 

¶204 Award of a prorata share. ................................. 76
 

¶211 Award based on a stated formula. ............................ 77
 

¶231 Awarding COLA's on fixed monthly amounts. .................... 78
 

¶232 Excluding COLA's on awards other than fixed monthly amounts. ........ 78
 

300 Series--Type of annuity. ..................................... 79
 

¶301 Awards based on benefits actually paid. ........................ 79
 

¶311 Awards of earned annuity in cases where the actual annuity is based on
 

disability. ............................................. 79
 

400 Series--Refunds of employee contributions. ........................ 80
 

¶401 Barring payment of a refund of employee contributions. .............. 81
 

¶402 Dividing a refund of employee contributions. ..................... 81
 

500 Series--Death of the former spouse. ............................. 81
 

¶501 Full annuity restored to the retiree. ........................... 81
 

¶502 Former spouse share paid to children. ......................... 81
 

¶503 Former spouse share paid to the court. ......................... 82
 

Subpart G--Procedures for Processing Court Orders Awarding Former Spouse Survivor
 

Annuities ...................................................... 83
 

REGULATORY STRUCTURE ........................................ 83
 

§ 838.701 Purpose and scope. ...................................... 83
 

LIMITATIONS ON SURVIVOR ANNUITIES ............................. 84
 

§ 838.711 Maximum former spouse survivor annuity. ....................... 84
 

APPLICATION AND PROCESSING PROCEDURES ........................ 84
 

§ 838.721 Application requirements. .................................. 84
 

§ 838.722 OPM action on receipt of a court order acceptable for processing. ..... 85
 

§ 838.723 OPM action on receipt of a court order not acceptable for processing. ..... 88
 

§ 838.724 Contesting the validity of court orders. .......................... 88
 

§ 838.725 Effect on employee and retiree election rights. ..................... 89
 

PAYMENT PROCEDURES ......................................... 89
 

vi 
Table of Contents 

§ 838.731 Commencing date of payments. .............................. 89
 

§ 838.732 Termination of entitlement. ................................. 89
 

§ 838.733 Rights of current and other former spouses after termination of a former
 

spouse's entitlement. ........................................... 90
 

§ 838.734 Payment of lump-sum awards by survivor annuity. .................. 91
 

§ 838.735 Cost-of-living adjustments. ................................. 91
 

Subpart H-- Requirements for Court Orders Awarding Former Spouse Survivor Annuities 

............................................................ 93
 

§ 838.801 Purpose and scope. ...................................... 93
 

§ 838.804 Court orders must expressly award a former spouse survivor annuity or
 

expressly direct an employee or retiree to elect to provide a former spouse survivor
 

§ 838.802 CSRS limitations. ....................................... 93

§ 838.803 Language not acceptable for processing. ......................... 93
 

Qualifying Domestic Relations Orders. ............................... 93
 

Employee annuity cannot continue after the death of the retiree. ............... 94
 

annuity. ................................................... 94
 

§ 838.805 OPM computation of formulas in computing the designated base. ......... 95
 

§ 838.806 Amended court orders. .................................... 95

§ 838.807 Cost must be paid by annuity reduction. ......................... 97
 

Subpart I--Terminology Used in Court Orders Awarding Former Spouse Survivor
 

Annuities ...................................................... 99
 

REGULATORY STRUCTURE ........................................ 99
 

§ 838.901 Purpose and scope. ...................................... 99
 

vii 
Table of Contents 

IDENTIFICATION OF BENEFITS ..................................... 100
 

§ 838.911 Identifying the retirement system. ............................. 100
 

§ 838.912 Specifying an award of a former spouse survivor annuity. ............. 101
 

COMPUTATION OF BENEFIT ....................................... 102
 

§ 838.921 Determining the amount of a former spouse survivor annuity. ........... 102
 

§ 838.922 Prorata share defined. .................................... 103

§ 838.923 Cost-of-living adjustment before the death of a retiree. ............... 104
 

MISCELLANEOUS PROVISIONS ..................................... 104
 

§ 838.931 Court orders that provide temporary awards of former spouse survivor
 

§ 838.932 Court orders that permit the former spouse to elect to receive a former spouse
 

annuities. .................................................. 104
 

survivor annuity. ............................................. 105
 

MODEL PARAGRAPHS ........................................... 107
 

Appendix A to Subpart I of Part 838-- Recommended Language for Court Orders
 

Awarding Former Spouse Survivor Annuities. ........................ 107
 

TABLE OF CONTENTS .......................................... 109
 

700 Series--Computing the amount of the former spouse's benefit. ........... 110
 

¶751 Changing amount of former spouse survivor annuity based on remarriage
 

¶752 Changing amount of former spouse survivor annuity based on remarriage
 

¶701 Award of the maximum survivor annuity. ....................... 110
 

¶702 Award that continues the pre-divorce survivor annuity benefits. ......... 111
 

¶703 Award of a prorata share. ................................. 111
 

¶704 Award of a fixed monthly amount. ........................... 111
 

¶711 Award of a percentage or fraction of the employee annuity. ........... 112
 

¶712 Award based on a stated formula as a share of employee annuity. ....... 112
 

¶721 Award of a percentage or fraction of the maximum survivor annuity. ..... 113
 

¶722 Award based on a stated formula as a share of maximum survivor annuity. . 113
 

before retirement. ........................................ 114
 

after retirement. ......................................... 114
 

800 Series--Paying the cost of a former spouse survivor annuity. ............ 115
 

¶801 Costs to be paid from the employee annuity. ..................... 115
 

¶802 Costs to be paid from former spouse's share of the employee

 annuity. ............................................... 115
 

900 Series--Refunds of employee contributions. ........................ 116
 

¶901 Barring payment of a refund of employee contributions. .............. 116
 

¶902 Dividing a refund of employee contributions. ..................... 116
 

viii 
Table of Contents 

Former Spouse Health Benefits Coverage ................................. 119
 

FEHB Statutory Provisions ............................................. 121
 

§ 8901. Definitions .................................................. 121
 

§ 8905. Election of Coverage ........................................... 123
 

Health Benefits Regulations ............................................ 125
 

Subpart H--Benefits for Former Spouses .................................. 125
 

§ 890.801 Introduction. ............................................. 125

§ 890.802 Definition. .............................................. 125

§ 890.803 Who may enroll. .......................................... 125
 

§ 890.804 Coverage. ............................................... 126
 

Type of enrollment. ............................................. 126
 

Proof of dependency. ............................................ 126
 

Exclusions from coverage. ......................................... 127
 

Child incapable of self-support. ...................................... 127
 

Meaning of unmarried child. ....................................... 127
 

§ 890.805 Application time limitations. .................................. 127
 

§ 890.806 Effective dates of coverage. ................................... 128
 

Generally. ................................................... 128
 

Change required because of insufficient annuity. ........................... 129
 

§ 890.807 Termination of enrollment. ................................... 129

Coverage of members of the family. .................................. 130
 

Cancellation. .................................................. 130
 

§ 890.808 Employing Office Responsibilities. .............................. 131
 

Application for benefits. .......................................... 131
 

Administration of the enrollment process. ............................... 131
 

Qualifying court order. ........................................... 132
 

Premium payments. ............................................. 132
 

Withholding from annuity. ......................................... 133
 

Life Insurance ....................................................... 135
 

Assignment of Life Insurance Coverage ..................................... 137
 

FEGLI Statutory Provisions ............................................ 141
 

§8706. Termination of Insurance; Assignment of Ownership ...................... 141
 

ix 
Court Orders Affecting
 

Civil Service Retirement Benefits
 

Federal Employees Retirement Benefits
 

Federal Employees Health Benefits
 

and
 

Federal Employees Group Life Insurance Benefits
 

Statutes and Regulations 

Introduction 

This publication contains the Federal statutes 

and regulations applicable to court orders affecting 

retirement benefits under the Civil Service 

Retirement System (CSRS) and the Federal 

Employees Retirement System (FERS). The 

United States Office of Personnel Management 

(OPM) administers both of these retirement 

systems. CSRS covers most employees first hired 

before 1984. FERS generally covers employees 

This publication is for attorneys 

and others who are involved in the 

preparation of divorce and 

separation agreements that involve 

a current or former employee of 

the Federal Government. 

first hired by the Federal Government after 1983, 

plus other Federal employees who elected to 

transfer from CSRS to FERS. The publication 

also includes the statutes and regulations describing 

the conditions under which a former spouse's 

Federal Employees Health Benefits (FEHB) 

coverage may be continued after a divorce, as well 

as the statute under which an employee or former 

employee may make an irrevocable assignment of 

his or her Federal Employees' Group Life 

Insurance (FEGLI) coverage. 

This publication is for attorneys and others 

who are involved in the preparation of divorce and 

separation agreements that involve a current or 

former employee, including an annuitant, of the 

Federal Government who is or was covered by the 

CSRS or FERS. 
 

Introduction 

The pocket at the end of this publication 

contains a 3.5 inch diskette containing the model 

language that may be used in drafting court orders. 

The diskette contains three files with the model 

language in three common word processor 

formats. COMODEL.WP is in WordPerfect 

format. COMODEL.WRD is in Word format. 

COMODEL.GEN is in a generic word processor 

format. 

Note: Certain individuals who may be covered by 

other retirement systems (such as the Foreign 

Service Retirement System) still participate in the 

FEHB and FEGLI programs. The rules 

concerning continuation of FEHB coverage for 

former spouses after divorce and assignment of 

FEGLI coverage to a former spouse also apply to 

this group of individuals. 

2
 
RETIREMENT
 
Retirement 

OPM published revised regulations on court 

orders affecting retirement benefits in the Federal 

Register on July 29, 1992. These regulations 

synthesize our experience in processing court 

orders since 1978. They are designed to make it 

easier for parties in a divorce to ensure that court 

orders will be acceptable to OPM for processing, 

and that OPM will divide CSRS or FERS benefits, 

or provide a survivor benefit, in accordance with 

their wishes. 

The new regulations, which are reproduced 

in this document, are very detailed as to what 

constitutes a court order that is acceptable for 

processing, and as to the exact meaning of court 

order terminology. The definitions in these 

Appendices to the regulations 

contain model paragraphs that 

attorneys can use to ensure that, in 

drafting orders, the language they 

select will both produce the 

intended result and meet OPM's 

processing requirements. 

regulations are designed to give the most 

commonly-used meaning to words most often 

encountered in court orders. This will allow OPM 

to accept as many court orders as possible rather 

than rejecting orders, which would require the 

parties to return to State court. To further 

facilitate preparation of acceptable orders, 

The regulations . . . apply to court 

orders that OPM receives on or 

after January 1, 1993. 

appendices to the regulations contain model 

paragraphs that attorneys can use to ensure that, in 

drafting orders, the language they select will both 

produce the intended result and meet OPM's 

processing requirements. While the regulations 

themselves apply to court orders that OPM 

receives on or after January 1, 1993, a court order 

prepared using them also will be acceptable under 

the regulations that apply to orders that OPM 

receives before January 1, 1993. In addition, 

OPM strongly encourages use of the model 

language to ensure that a court order will be 

acceptable for processing by OPM. 

OPM's role is ministerial, rather 

than that of a mediator in marital 

property disputes. 

OPM's role is ministerial, rather than that of 

a mediator in marital property disputes. This latter 

role belongs to the State courts. If a court order 

is so flawed that it is not sufficiently clear to satisfy 

our requirements, the appropriate action is for the 

parties to return to the State court to correct the 

problem. Likewise, if a party contends that the 

court intended its order to have a different meaning 

than the clear meaning it has under these 

regulations, the proper forum for the individual's 

complaint is the State court. OPM will require 

employees and former spouses to settle disputes in 

the State courts where they belong, not in Federal 

proceedings. The courts issuing the orders are in 

the best position to determine the meaning of their 

own orders. 

Please note that this publication does not 

contain information on garnishment of pay or 

annuity of an employee or annuitant for alimony or 

child support. OPM's regulations governing 

garnishments may be found in Part 581 of title 5 of 

the Code of Federal Regulations. 

Preparing a Court Order 

Exemption from ERISA 

A substantial number of State court orders 

are drafted under the mistaken belief that the 

Employee Retirement Income Security Act 

(ERISA) (29 U.S.C. 1001 et seq.) applies to CSRS 

or FERS benefits. Sections 1003(b)(1) and 1051 

of title 29, United States Code, exempt CSRS and 
Retirement 

FERS from ERISA, because CSRS and FERS are 

"governmental plans" as defined in section 

1001(23) of title 29, United States Code. 

ERISA created the term "qualified domestic 

relations order" (QDRO) to describe a court order 

that summarizes the division of retirement benefits 

under ERISA plans. QDRO's are not acceptable 

to affect CSRS or FERS benefits. OPM has seen 

from experience that attorneys prepare these 

orders on the assumption that they can provide any 

benefits available under ERISA to CSRS and 

FERS. (For example, the most important 

difference between ERISA plans and CSRS and 

FERS is that under ERISA the former spouse's 

share of the benefit can begin when the employee 

An order labelled as a QDRO is 

not acceptable. 

reaches the minimum retirement age, even if the 

employee is still working. However, this benefit 

is not available under CSRS or FERS. The 

availability of this early benefit, or lack of 

availability, can seriously alter negotiations over a 

settlement agreement.) 

Since CSRS and FERS are exempt from 

ERISA, some provisions that ERISA plans must 

honor do not apply to CSRS and FERS. For OPM 

to be able to process court orders in the way 

intended by the parties, OPM and the court must 

be speaking the same language. To assure that the 

court has used our terminology, rather than 

ERISA's terminology, an order labelled as a 

QDRO is not acceptable. However, this 

prohibition against labelling the order as a QDRO 

does not apply if court orders also expressly state 

that they are written in conformity with OPM's 

regulations. This exception will guarantee that the 

purpose of the ban--that the court understands that 

we are exempt from ERISA and that the court is 

using the terminology as provided in the 

regulations--is satisfied by requiring that any 

QDRO mention the regulations. Model paragraph 

¶001 in appendix A to subpart F of the regulations 

provides the required language. (See page 74.) 

A substantial number of State 

court orders are drafted under the 

mistaken belief that the Employee 

Retirement Income Security Act 

(ERISA) (29 U.S.C. 1001 et seq.) 

applies to CSRS or FERS benefits. 

Sections 1003(b)(1) and 1051 of 

title 29, United States Code, 

exempt CSRS and FERS from 

ERISA. 

Benefits payable 

A court order may affect any of three types 

In preparing a court order, 

attorneys should keep in mind that 

we consider each of the three types 

of awards as separate and 

independent of the other two, and 

should exercise great care in each 

type of benefit they intend to 

affect. 

of retirement benefits paid by OPM. The 

regulations treat each of the three--employee 

annuities, refunds of employee contributions, and 

survivor annuities--independently. In preparing a 

court order, attorneys should keep in mind that we 

consider each of the three types of awards as 

separate and independent of the other two, and 

should exercise great care in each type of benefit 

5
 
Retirement 

they intend to affect. Our requirement that the State court orders cannot affect several types 

award of each type of benefit be independent does of benefits payable under CSRS and FERS. OPM 

not mean that the court award of one type of must pay any accrued annuity that is not paid 

benefit cannot affect another. For example, before a retiree's death and any unexpended 

awarding a former spouse survivor annuity balance of an employee's retirement contributions 

requires a reduction in the employee annuity. If that are paid as a death benefit in accordance with 

the former spouse has also been awarded a portion the order of precedence established by Federal 

of the gross or net employee annuity, the former law. Similarly, eligibility for children's survivor 

spouse's portion of the employee annuity will be benefits is governed entirely by Federal law and 

affected. cannot be affected by State court orders. 

A complete court order requires 

three separate provisions--one 

addressing each type of benefit 

that the court can affect. 

The employing agency is the 

proper source for employment and 

pay information about a current 

employee's service with that 

agency. 

A complete court order requires three 

separate provisions--one addressing each type of 

benefit that the court can affect. However, 

frequently, courts intend to award only a portion of 

the employee annuity or a survivor annuity, rather 

than a complete retirement package. A court that 

intends only to divide an employee annuity needs 

to consider only subparts A, B, C, and F of these 

regulations. Similarly, if the court intends to 

award only a survivor annuity, only subparts A, G, 

H, and I of these regulations apply. To provide a 

former spouse with a share of an employee annuity 

or refund of employee contributions and a survivor 

annuity, the order must include the language 

required by the appropriate subparts and, 

preferably, the model language appendices. Note 

that if the employee receives a refund of retirement 

contributions, the former spouse's future annuity 

entitlement will be voided. The court may wish to 

prevent payment of the refund of retirement 

contributions or award the former spouse a portion 

of the refund. Subparts A, D, E, and F apply to 

refunds of retirement contributions. Paragraph 

401 in appendix A to subpart F contains language 

that may be used to prevent a refund of retirement 

contributions. (See pages 80-81.) The complete 

regulatory structure is addressed in section 838.102 

of regulations. (See page 31.) 

Information Available From the 

Federal Government 

Information available on current 

employees 

The employing agency is the proper source 

for employment and pay information about a 

current employee's service with that agency. 

OPM does not receive records until after an 

employee leaves an agency's employment. With 

regard to requests for an individual's employment 

and pay records, agency personnel must comply 

with Privacy Act rules and applicable regulations 

before disclosing the information. 

However, if a current employee has previous 

employment with a different Federal agency (for 

example, someone who currently is a civilian 

employee with the Department of the Army, but 

who previously worked for the U.S. Postal 

Service), information about the employee's 

contributions to the Retirement Fund during the 

prior service is only available from OPM. 

6
 
Retirement 

Commonly requested information, which 

agencies can provide in response to a subpoena 

signed by a judge or a release signed by the 

employee, includes a statement of retirement 

system coverage (CSRS or FERS), the amount of 

money withheld by that agency to the employee's 

credit in the retirement fund, and an annuity 

estimate using the employee's service history to 

date. The exact requirements for obtaining 

information vary among agencies. Information 

about the agency's procedures for obtaining such 

information should be obtained from the agency 

involved. If an agency provides an annuity 

estimate--as agencies generally do for employees 

at or near retirement--that benefit calculation is 

only an estimate, and is not binding on the 

Government. Agencies should not provide 

estimates that would require speculation about 

future promotions, program changes, or any other 

non-factual information and should avoid giving 

annuity estimates for employees who are not close 

to retirement. Official computations are made by 

OPM only at the time benefits become payable. 

Information on retirees and former 

employees 

OPM is the proper source of 

information about retirees and 

former employees. 

OPM is the proper source of information 

about retirees and former employees. OPM has 

information available on former employees and 

retirees similar to the information, described in the 

previous paragraph, available from agencies on 

current employees. In addition, OPM has annuity 

rate information on retirees. OPM can release this 

information only in response to a subpoena signed 

by a judge or a release signed by the retiree or 

former employee. The subpoena or release should 

be sent to: 

Associate Director for 

Retirement and Insurance 

U.S. Office of Personnel 

Management 

Post Office Box 16 

Washington, DC 20044-0016 

Please note that a different agency, the 

Federal Retirement Thrift Investment Board (the 

Board) administers the Thrift Savings Plan for 

Federal employees. The Board's regulations 

governing court orders are in subparts G and I of 

part 1650 of Title 5, Code of Federal Regulations. 

Questions about an individual's thrift account or 

the Board's rules governing court orders should be 

directed to the 

Office of General Counsel 

Federal Retirement Thrift 

Investment Board 

805 15th Street, NW 

Washington, DC 20005-2207 

Information Not Available From 

the Government 

Federal agency personnel do not advise an 

employee, an employee's spouse, or an attorney 

about how to draft a court order to award CSRS or 

FERS benefits. This is the task of the attorneys 

involved. The requirements that must be satisfied 

for OPM to honor a court order are set out in the 

law and regulations provided in this publication. 

The regulations contain two appendices that 

provides model language recommended for use in 

court orders. An agency's efforts to advise 

individuals in legal matters involving domestic 

disputes can, despite good intentions, harm more 

than help. 

It is not appropriate for agency personnel to 

attempt a "present value" computation of an 

employee's future benefits. Also, agencies should 

not attempt to determine the proper division of 

benefits between the employee and spouse. 

Present value computations should be prepared by 

a qualified private actuary. Such computations of 

the total actuarial value of retirement benefits 

require application of various economic and 

7
 
Retirement 

mortality assumptions, and are beyond the scope of 

an employing agency's or OPM's responsibility. 

8
 
CSRS Statutory Provisions 

Section 8346(a) of title 5, United States Code, exempts CSRS benefits from most State court 

proceedings. It provides: 

§ 8346. Exemption from 

legal process; recovery of 

payments 

§ 8346. Exemption from legal process; recovery of payments 

(a) The money mentioned by this subchapter is not assignable, 

either in law or equity, except under the provisions of subsection (h) 

and (j) of section 8345 of this title, or subject to execution, levy, 

attachment, garnishment, or other legal process, except as otherwise 

may be provided by Federal laws. 

* * * * * 
CSRS Statutory Provisions 

Section 8345(j) of title 5, United States Code, permits State courts to award a former spouse certain 

CSRS benefits. Only benefits that would otherwise be payable to the employee and that are based on the 

employee's service may be awarded under this provision. Section 8345(j) provides: 

§ 8345. Payment of § 8345. Payment of benefits; commencement, termination, and 

benefits; commencement, waiver of annuity 

termination, and waiver of 

annuity * * * * * 

(j)(1) Payments under this subchapter which would otherwise 

be made to an employee, Member, or annuitant based upon his 

service shall be paid (in whole or in part) by the Office to another 

person if and to the extent expressly provided for in the terms of any 

court decree of divorce, annulment, or legal separation, or the terms 

of any court order or court-approved property settlement agreement 

incident to any court decree of divorce, annulment, or legal 

separation. Any payment under this paragraph to a person bars 

recovery by any other person. 

(2) Paragraph (1) shall only apply to payments made 

by the Office under this subchapter after the date of 

receipt in the Office of written notice of such decree, 

order, or agreement, and such additional information 

and documentation as the Office may prescribe. 

(3) As used in this subsection, "court" means any 

court of any State, the District of Columbia, the 

Commonwealth of Puerto Rico, Guam, the Northern 

Mariana Islands, or the Virgin Islands, and any Indian 

court. 

10
 
CSRS Statutory Provisions 

Section 8341(h) of title 5, United States Code, permits State courts to award a former spouse 

entitlement to a survivor annuity in the event that the employee predeceases the former spouse. Special 

attention should be given to the restriction on modifications provided in paragraph (h)(4). Section 8341(h) 

provides: 

§ 8341. Survivor annuities § 8341. Survivor annuities 

* * * * * 

(h)(1) Subject to paragraphs (2) through (5) of this subsection, a 

former spouse of a deceased employee, Member, annuitant, or 

former Member who was separated from the service with title to a 

deferred annuity under section 8338(b) of this title is entitled to a 

survivor annuity under this subsection, if and to the extent expressly 

provided for in an election under section 8339(j)(3) of this title, or 

in the terms of any decree of divorce or annulment or any court 

order or court-approved property settlement agreement incident to 

such decree. 

(2)(A) The annuity payable to a former spouse under this 

subsection may not exceed the difference between-­

(i) the amount applicable in the case of such former spouse, 

as determined under subparagraph (B) of this paragraph, and 

(ii) the amount of any annuity payable under this subsection to 

any other former spouse of the employee, Member, or annuitant, 

based on an election previously made under section 8339(j)(3) of 

this title, or a court order previously issued. 

(B) The applicable amount, for purposes of subparagraph(A)(i) 

of this paragraph in the case of a former spouse, is the amount 

which would be applicable-­

(i) under subsection (b)(4)(A) of this section in the case of a 

widow or widower, if the deceased was an employee or Member 

who died after retirement; 

(ii) under subparagraph(A) of subsection (d) of this section in 

the case of a widow or widower, if the deceased was an 

employee or Member described in this first sentence of such 

subsection; or 

(iii) under subparagraph(A) of subsection (f) of this section in 

the case of a surviving spouse, if the deceased was a Member 

described in the first sentence of such subsection. 

11
 
CSRS Statutory Provisions 

(3) The commencement and termination of an annuity payable 

under this subsection shall be governed by the terms of the 

applicable order, decree, agreement, or election, as the case may 

be, except that any such annuity-­

(A) shall not commence before-­

(i) the day after the employee, Member, or annuitant dies, 

or 

(ii) the first day of the second month beginning after the 

date on which the Office received written notice of the order, 

decree, agreement, or election, as the case may be, together 

with such additional information or documentation as the 

Office may prescribe, 

whichever is later, and 

(B) shall terminate-­

(i) in the case of an annuity computed by reference to 

clause (i) or (ii) of paragraph (2)(B) of this subsection, no 

later than the last day of the month before the former spouse 

remarries before becoming 55 years of age or dies; or 

(ii) in the case of an annuity computed by reference to 

clause (iii) of such paragraph, no later than the last day of the 

month before the former spouse remarries or dies. 

(4) For purposes of this subchapter, a modification in a decree, 

order, agreement, or election referred to in paragraph (1) of this 

subsection shall not be effective-­

(A) if such modification is made after the retirement or death 

of the employee or Member concerned, and 

(B) to the extent that such modification involves an annuity 

under this subsection. 

(5) For purposes of this subchapter, a decree, order, agreement, 

or election referred to in paragraph (1) of this subsection shall not 

be effective, in the case of a former spouse, to the extent that it is 

inconsistent with any joint designation or waiver previously executed 

with respect to such former spouse under section 8339(j)(1) of this 

title or a similar prior provision of law. 

12
 
CSRS Statutory Provisions 

(6) Any payment under this subsection to a person bars recovery 

by any other person. 

(7) As used in this subsection, "court" means any court of any 

State, the District of Columbia, and Commonwealth of Puerto Rico, 

Guam, the Northern Mariana Islands, or the Virgin Islands, and any 

Indian court. 

13
 
CSRS Statutory Provisions 

Section 8342(j)(1)(B) of title 5, United States Code, permits State courts to block payments of 

refunds of employee contributions but only if a former spouse has been awarded a portion of the employee 

annuity or a survivor annuity. Section 8342(j)(1)(B) provides: 

§ 8342. Lump-sum 

benefits; designation of 

beneficiary; order of 

precedence 

§ 8342. Lump-sum benefits; designation of beneficiary; order of 

precedence 

* * * * * 

(j)(1) Payment of the lump-sum credit under subsection (a) of 

this section-­

* * * * * 

(B) shall be subject to the terms of a court decree of divorce, 

annulment, or legal separation or any court order or court 

approved property settlement agreement incident to such decree 

if-­

(i) the decree, order, or agreement expressly relates to 

any portion of the lump-sum credit involved; and 

(ii) payment of the lump-sum credit would extinguish 

entitlement of the employee's or Member's spouse or former 

spouse to a survivor annuity under section 8341(h) of this title 

or to any portion of an annuity under section 8345(j) of this 

title. 

* * * * * 

14
 
FERS Statutory Provisions 

FERS Statutory Provisions 

Section 8470(a) of title 5, United States Code, exempts FERS benefits from most State court 

proceedings. It provides: 

§ 8470. Exemption from 

legal process; recovery of 

payments 

§ 8470. Exemption from legal process; recovery of payments 

(a) An amount payable under subchapter II, IV, and V of this 

chapter is not assignable, either in law or equity, except under the 

provisions of section 8465 or 8467, or subject to execution, levy, 

attachment, garnishment or other legal process, except as otherwise 

may be provided by Federal laws. 

* * * * * 

Section 8467 of title 5, United States Code, permits State courts to award a former spouse certain 

FERS benefits. Only benefits that would otherwise be payable to the employee and that are based on the 

employee's service may be awarded under this provision. Section 8467 provides: 

§ 8467. Court orders § 8467. Court orders 

(a) Payments under this chapter which would otherwise be made 

to an employee, Member, or annuitant (including an employee, 

Member, or annuitant as defined under section 8331) based on the 

service of that individual shall be paid (in whole or in part) by the 

Office or the Executive Director (as the case may be), to another 

person if and to the extent that the terms of any court decree of 

divorce, annulment, or legal separation, or the terms of any court 

order or court-approved property settlement agreement incident to 

any court decree of divorce, annulment, or legal separation 

expressly provide. Any payment under this subsection to a person 

bars recovery by any other person. 

(b) Subsection (a) shall apply only to payments made by the 

Office or the Executive Director under this chapter after the date on 

which the Office or the Executive Director (as the case may be) 

receives written notice of such decree, order, or agreement, and 

such additional information and documentation as the Office or the 

Executive Director may require. 

15
 
FERS Statutory Provisions 

Section 8445 of title 5, United States Code, permits State courts to award a former spouse entitlement 

to a survivor annuity in the event that the employee predeceases the former spouse. Special attention 

should be given to the restriction on modifications provided in paragraph (d). Section 8445 provides: 

§ 8445. Rights of a former § 8445. Rights of a former spouse 

spouse 

(a) Subject to subsections (b) through (e), a former spouse of a 

deceased employee, Member, or annuitant (or of a former employee 

or Member who dies after having separated from the service with 

title to a deferred annuity under section 8413 but before having 

established a valid claim for annuity) is entitled to an annuity under 

this section, if and to the extent expressly provided for in an election 

under section 8417(b), or in the terms of any decree of divorce or 

annulment or any court order or court-approved property settlement 

agreement incident to such decree. 

(b)(1) The annuity payable to a former spouse under this section 

may not exceed the difference between-­

(A) the amount applicable in the case of such former spouse, 

as determined under paragraph (2); and 

(B) the amount of any annuity payable under this section to 

any other former spouse of the employee, Member, or annuitant, 

or former employee or Member, based on an election previously 

made under section 8417(b), or a court order previously issued 

or agreement previously entered into as described in subsection 

(a). 

(2) The applicable amount, for purposes of paragraph (1)(A) in 

the case of a former spouse, is the amount of the annuity which 

would be payable under the provisions of section 8442 (including 

subsection (f) of such section, but without regard to subsection (h) of 

such section) if such former spouse were a widow or widower 

entitled to an annuity under such provisions based on the service of 

the deceased employee, Member, or annuitant, or former employee 

or Member. 

(c) The commencement and termination of an annuity payable 

under this section shall be governed by the terms of the applicable 

order, decree, agreement, or election, as the case may be, except 

that any such annuity-­

16
 
FERS Statutory Provisions 

(1) shall not commence before-­

(A) the day after the employee, Member, or annuitant, or 

former employee or Member, dies; or 

(B) the first day of the second month beginning after the 

date on which the Office received written notice of the order, 

decree, agreement, or election as the case may be together 

with such additional information or documentation as the 

Office may prescribe; 

whichever is later, and 

(2) shall terminate no later than the last day of the month 

before the former spouse remarries before becoming 55 years of 

age or dies. 

(d) For purposes of this chapter, a modification in a decree, 

order, agreement, or election referred to in subsection (a) shall not 

be effective-­

(1) if such modification is made after the retirement or death 

of the employee, Member, or annuitant, or former employee or 

Member, concerned; and 

(2) to the extent that such modification involves an annuity 

under this section. 

(e) For purposes of this chapter, a decree, order, agreement, or 

election referred to in subsection (a) shall not be effective, in the 

case of a former spouse, to the extent that it is inconsistent with any 

joint waiver previously executed with respect to such former spouse 

under section 8416(a). 

(f)(1) Any amount under section 8442(b)(1)(A) which would 

otherwise be payable to a widow or widower based on the service of 

another individual shall be paid (in whole or in part) by the Office to 

a former spouse of such individual if and to the extent expressly 

provided for in the terms of a court decree of divorce, annulment, 

or legal separation, or the terms of a court order or court-approved 

property settlement incident to any decree of divorce, annulment, or 

legal separation. 

17
 
FERS Statutory Provisions 

(2) Paragraph (1) shall apply only to payments made by the 

Office after the date of receipt in the Office of written notice of such 

decree, order, or agreement, and such additional information and 

documentation as the Office may prescribe. 

(g) Any payment under this section to a person bars recovery by 

any other person. 

18
 
FERS Statutory Provisions 

Section 8401(7) defines the term "court" as that term is used in FERS. It provides: 

§ 8401. Definitions § 8401. Definitions 

* * * * * 

(7) [T]he term "court" means any court of any State, the District 

of Columbia, the Commonwealth of Puerto Rico, Guam, the 

Northern Mariana Islands, or the Virgin Islands, and any Indian 

court[.] 

* * * * * 

Section 8424(b)(1)(B) of title 5, United States Code, permits State courts to block payments of 

refunds of employee contributions but only if a former spouse has been awarded a portion of the employee 

annuity or a survivor annuity. Section 8424(b)(1)(B) provides: 

§ 8424. Lump-sum 

Benefits; designation of 

beneficiary; order of 

precedence 

§ 8424. Lump-sum Benefits; designation of beneficiary; order of 

precedence 

* * * * * 

(b)(1) Payment of the lump-sum credit under subsection (a)-­

* * * * * 

(B) in any case in which there is a former spouse, shall be 

subject to the terms of a court decree of divorce, annulment, or 

legal separation issued with respect to such former spouse if-­

(i) the decree expressly relates to any portion of the lumpsum credit involved; and 

(ii) payment of the lump-sum credit would affect any right 

or interest of the former spouse with respect to a survivor 

annuity under section 8445, or to any portion of an annuity 

under section 8467. 

19
 
How the Regulations Are Organized 

Subpart A of the regulations contains 

definitions and other material of significance to all 

types of court orders affecting CSRS or FERS. 

The rest of the regulations are divided into three 

major units depending on whether the court order 

applies to employee annuities, refunds of employee 

contributions, or former spouse survivor annuities. 

For each unit, separate subparts cover procedures 

for processing, requirements that court orders must 

satisfy, and definitions of terms frequently used in 

court orders. (The terminology section for 

employee annuities and refunds of employee 

contributions are combined to avoid excessive 

duplication.) 

The subparts (B, D and G) regulating 

procedures contain rules relating to former spouse 

filing requirements and to our actions upon receipt 

of court orders. In addition, they contain rules and 

limitations that the State court cannot change such 

as when benefits are paid. The subparts (C, E, 

and H) regulating requirements that court orders 

must satisfy contain rules pertaining to the 

requirements that a court order must meet to be 

acceptable for processing. The subparts (F and I) 

defining terms explain our understanding of the 

meaning of terms commonly used in court orders. 

By choosing the correct term, the State court can 

tell us exactly what to do. We assume that State 

courts are familiar with our assigned meanings of 

these terms and have used them in the way that 

they are defined in these subparts. 

Paragraphs (b) through (i) of section 838.102 

contain cross references to other regulations 

concerning court orders or former spouse benefits. 

This information may assist in identifying areas in 

which research may be necessary. 
Retirement Regulations
 

Table of Contents
 

PART 838--COURT 

ORDERS AFFECTING 

RETIREMENT BENEFITS 

PART 838--COURT ORDERS AFFECTING RETIREMENT BENEFITS 

Subpart A--Court Orders 

Generally 

Subpart A--Court Orders Generally 

ORGANIZATION AND STRUCTURE OF REGULATIONS ON 

COURT ORDERS 

Sec. 

838.101 Purpose and scope. 

838.102 Regulatory structure. 

838.103 Definitions. 

STATUTORY LIMIT ON COURT'S AUTHORITY 

838.111 Exemption from legal process except as authorized by Federal 

law. 

DIVISION OF RESPONSIBILITIES 

838.121 OPM's responsibilities. 

838.122 State courts' responsibilities. 

838.123 Claimants' responsibilities. 

838.124 Employees' and retirees' responsibilities. 

PROCEDURES APPLICABLE TO ALL COURT ORDERS 

838.131 Computation of time. 

838.132 Payment schedules. 

838.133 Minimum awards. 

838.134 Receipt of multiple court orders. 

838.135 Settlements. 

838.136 Administrative appeal rights. 

ADDRESS FOR FILING COURT ORDERS WITH OPM 

Appendix A to Subpart A of Part 838--Addresses for Serving Court 

Orders Affecting CSRS or FERS Benefits. 

21
 
Retirement Regulations
 

Table of Contents
 

Subpart B--Procedures 

for Processing Court 

Orders Affecting 

Employee Annuities 

Subpart B--Procedures for Processing Court Orders Affecting 

Employee Annuities 

REGULATORY STRUCTURE 

838.201 Purpose and scope. 

AVAILABILITY OF FUNDS 

838.211 Amounts subject to court orders. 

APPLICATION AND PROCESSING PROCEDURES 

838.221 Application requirements. 

838.222 OPM action on receipt of a court order acceptable for 

processing. 

838.223 OPM action on receipt of a court order not acceptable for 

processing. 

838.224 Contesting the validity of court orders. 

838.225 Processing amended court orders. 

PAYMENT PROCEDURES 

838.231 Commencing date of payments. 

838.232 Suspension of payments. 

838.233 Termination of payments. 

838.234 Collection of arrearage. 

838.235 Payment of lump-sum awards. 

838.236 Court orders barring payment of annuities. 

838.237 Death of the former spouse. 

PROCEDURES FOR COMPUTING THE AMOUNT PAYABLE 

838.241 Cost-of-living adjustments. 

838.242 Computing lengths of service. 

838.243 Minimum amount of awards. 

Subpart C-­

Requirements for Court 

Orders Affecting 

Employee Annuities 

Subpart C--Requirements for Court Orders Affecting Employee 

Annuities 

838.301 Purpose and scope. 

838.302 Language not acceptable for processing. 

838.303 Expressly dividing employee annuity. 

838.304 Providing for payment to the former spouse. 

22
 
Retirement Regulations
 

Table of Contents
 

Subpart D--Procedures 

for Processing Court 

Orders Affecting Refunds 

of Employee 

Contributions 

Subpart E-­

Requirements for Court 

Orders Affecting Refunds 

of Employee 

Contributions 

838.305 OPM computation of formulas. 

838.306 Specifying type of annuity for application of formula, 

percentage or fraction. 

Subpart D--Procedures for Processing Court Orders Affecting 

Refunds of Employee Contributions 

REGULATORY STRUCTURE 

838.401 Purpose and scope. 

AVAILABILITY OF FUNDS 

838.411 Amounts subject to court orders. 

APPLICATION AND PROCESSING PROCEDURES 

838.421 Application requirements. 

838.422 Timeliness of application. 

838.423 OPM action on receipt of a court order acceptable for 

processing. 

838.424 OPM action on receipt of a court order not acceptable for 

processing. 

838.425 Contesting the validity of court orders. 

PAYMENT PROCEDURES 

838.431 Correcting failures to provide required spousal notification. 

838.432 Court orders barring payment of refunds. 

PROCEDURES FOR COMPUTING THE AMOUNT PAYABLE 

838.441 Computing lengths of service. 

Subpart E--Requirements for Court Orders Affecting Refunds of 

Employee Contributions 

838.501 Purpose and scope. 

838.502 Expressly dividing a refund of employee contributions. 

838.503 Providing for payment to the former spouse. 

838.504 OPM computation of formulas. 

838.505 Barring payment of refunds. 

23
 
Retirement Regulations
 

Table of Contents
 

Subpart F--Terminology 

Used in Court Orders 

Affecting Employee 

Annuities or Refunds of 

Subpart F--Terminology Used in Court Orders Affecting Employee 

Annuities or Refunds of Employee Contributions 

REGULATORY STRUCTURE 

Employee Contributions 

838.601 Purpose and scope. 

IDENTIFICATION OF BENEFITS 

838.611 Identifying the retirement system. 

838.612 Distinguishing between annuities and contributions. 

COMPUTATION OF BENEFITS 

838.621 Prorata share. 

838.622 Cost-of-living and salary adjustments. 

838.623 Computing lengths of service. 

838.624 Distinguishing between formulas and fixed amounts. 

838.625 Types of annuity. 

MODEL PARAGRAPHS 

Appendix A to Subpart F of Part 838--Recommended Language for Court 

Orders Dividing Employee Annuities. 

Subpart G--Procedures 

for Processing Court 

Orders Awarding Former 

Spouse Survivor 

Annuities 

Subpart G--Procedures for Processing Court Orders Awarding 

Former Spouse Survivor Annuities 

REGULATORY STRUCTURE 

838.701 Purpose and scope. 

LIMITATIONS ON SURVIVOR ANNUITIES 

838.711 Maximum former spouse survivor annuity. 

APPLICATION AND PROCESSING PROCEDURES 

838.721 Application requirements. 

838.722 OPM action on receipt of a court order acceptable for 

processing. 

838.723 OPM action on receipt of a court order not acceptable for 

processing. 

838.724 Contesting the validity of court orders. 

838.725 Effect on employee and retiree election rights. 

24
 
Retirement Regulations
 

Table of Contents
 

Subpart H-­

Requirements for Court 

Orders Awarding Former 

Spouse Survivor 

Annuities 

Subpart I--Terminology 

Used in Court Orders 

Awarding Former Spouse 

Survivor Annuities 

PAYMENT PROCEDURES 

838.731 Commencing date of payments. 

838.732 Termination of entitlement. 

838.733 Rights of current and other former spouses after termination of 

a former spouse's entitlement. 

838.734 Payment of lump-sum awards by survivor annuity. 

838.735 Cost-of-living adjustments. 

Subpart H--Requirements for Court Orders Awarding Former 

Spouse Survivor Annuities 

838.801 Purpose and scope. 

838.802 CSRS limitations. 

838.803 Language not acceptable for processing. 

838.804 Court orders must expressly award a former spouse survivor 

annuity or expressly direct an employee or retiree to elect to provide 

a former spouse survivor annuity. 

838.805 OPM computation of formulas in computing the designated 

base. 

838.806 Amended court orders. 

838.807 Cost must be paid by annuity reduction. 

Subpart I--Terminology Used in Court Orders Awarding Former 

Spouse Survivor Annuities 

REGULATORY STRUCTURE 

838.901 Purpose and scope. 

IDENTIFICATION OF BENEFITS 

838.911 Identifying the retirement system. 

838.912 Specifying an award of a former spouse survivor annuity. 

COMPUTATION OF BENEFIT 

838.921 Determining the amount of a former spouse survivor annuity. 

838.922 Prorata share defined. 

838.923 Cost-of-living adjustment before the death of a retiree. 

25
 
Retirement Regulations
 

Table of Contents
 

MISCELLANEOUS PROVISIONS 

838.931 Court orders that provide temporary awards of former spouse 

survivor annuities. 

838.932 Court orders that permit the former spouse to elect to receive a 

former spouse survivor annuity. 

838.933 Payment of the cost of a former spouse survivor annuity. 

MODEL PARAGRAPHS 

Appendix A to Subpart I of Part 838--Recommended Language for Court 

Orders Awarding Former Spouse Survivor Annuities. 

Subpart J--Court Orders 

Received Before 

January 1, 1993 

Subpart J--Court Orders Received Before January 1, 1993 

[Omitted.] 

Authority: 5 U.S.C. 8347(a) and 8461(g). Subparts B, C, D, E, 

and J also issued under 5 U.S.C. 8345(j)(2) and 

8467(b). Sections 838.221, 838.422, and 838.721 also 

issued under 5 U.S.C. 8347(b). 

26
 
Retirement Regulations
 

Court Orders Generally
 

Subpart A--Court Orders 

Generally 

Subpart A--Court Orders Generally 

ORGANIZATION AND ORGANIZATION AND STRUCTURE OF REGULATIONS ON 

STRUCTURE OF COURT ORDERS 

REGULATIONS ON 

COURT ORDERS 

§ 838.101 Purpose and § 838.101 Purpose and scope. 

scope. 

(a)(1) This part regulates the Office of Personnel Management's 

handling of court orders affecting the Civil Service Retirement System 

(CSRS) or the Federal Employees Retirement System (FERS), both of 

which are administered by the Office of Personnel Management (OPM). 

Generally, OPM must comply with court orders, decrees, or 

court-approved property settlement agreements in connection with 

divorces, annulments of marriage, or legal separations of employees, 

Members, or retirees that award a portion of the former employee's or 

Member's retirement benefits or a survivor annuity to a former spouse. 

(2) In executing court orders under this part, OPM must honor the 

clear instructions of the court. Instructions must be specific and 

unambiguous. OPM will not supply missing provisions, interpret 

ambiguous language, or clarify the court's intent by researching 

individual State laws. In carrying out the court's instructions, OPM 

performs purely ministerial actions in accordance with these regulations. 

Disagreement between the parties concerning the validity or the 

provisions of any court order must be resolved by the court. 

(b) This part prescribes-­

(1) The requirements that a court order must meet to be acceptable 

for processing under this part; 

(2) The procedures that a former spouse must follow when applying 

for benefits based on a court order under sections 8341(h), 8345(j), 8445 

or 8467 of title 5, United States Code; 

(3) The procedures that OPM will follow in honoring court orders 

and in making payments to the former spouse; and 

(4) The effect of certain words and phrases commonly used in court 

orders affecting retirement benefits. 

(c)(1) Subparts A through I of this part apply only to court orders 

received by OPM on or after January 1, 1993. 

27
 
Retirement Regulations
 

Court Orders Generally
 

§ 838.102 Regulatory 

structure. 

(2) Subpart J of this part applies only to court orders received by 

OPM before January 1, 1993. 

(d) This part has no application to the Thrift Savings Plan described 

in subchapter III of chapter 84 of title 5, United States Code. 

S))))))))))))))))))))))))))) 

§ 838.102 Regulatory structure. 

(a) This part is organized as follows: 

(1) Subpart A contains information and rules of general application 

to all court orders directed at CSRS or FERS retirement benefits. 

(2) Subparts B and C of this part contain information about court 

orders directed at ongoing employee annuity payments. 

(3) Subparts D and E of this part contain information about court 

orders directed at refunds of employee contributions. 

(4) Subpart F of this part contains information about the effect of 

words and phrases commonly used in court orders affecting ongoing 

employee annuity payments and refunds of employee contributions. 

(5) Subparts G, H, and I of this part contain information about court 

orders awarding former spouse survivor annuities. 

(6) Subpart J of this part contains the rules applicable to court orders 

filed under procedures in effect prior to the implementation of this part. 

These rules continue to apply to court orders received by OPM before 

January 1, 1993. 

(b) Part 890 of this chapter contains information about coverage 

under the Federal Employees Health Benefits Program. 

(c) Part 581 of this chapter contains information about garnishment 

of Government payments including salary and CSRS and FERS 

retirement benefits. 

(d) Parts 294 and 297 of this chapter and sections 831.106 and 

841.108 contain information about disclosure of information from OPM 

records. 

(e) Subpart V of part 831 of this chapter and subpart G of part 842 

of this chapter contain information about how court orders affect 

eligibility to make an alternative form of annuity election. 

28
 
Retirement Regulations
 

Court Orders Generally
 

(f) Part 1600 of this title contains information about court orders 

affecting the Federal Employees Thrift Savings Plan. 

(g) Subpart F of part 831 of this chapter, subpart F of part 841 of 

this chapter, and part 843 of this chapter contain information about 

entitlement to survivor annuities. 

(h) Subpart T of part 831 of this chapter and subpart B of part 843 

of this chapter contain information about refunds of employee 

contributions and lump-sum death benefits. 

(i) Parts 870, 871, 872, and 873 of this chapter contain information 

about the Federal Employees Group Life Insurance Program. 

S)))))))))))))))))))))))))))) 

§ 838.103 Definitions. § 838.103 Definitions. 

In this part (except subpart J)-­

Civil Service Retirement 

System 

"Civil Service Retirement System" or "CSRS" means the retirement 

system for Federal employees described in subchapter III of chapter 83 of 

title 5, United States Code. 

Court order "Court order" means any judgment or property settlement issued by 

or approved by any court of any State, the District of Columbia, the 

Commonwealth of Puerto Rico, Guam, The Northern Mariana Islands, or 

the Virgin Islands, or any Indian court in connection with, or incident to, 

the divorce, annulment of marriage, or legal separation of a Federal 

employee or retiree. 

Court order acceptable for 

processing 

"Court order acceptable for processing" means a court order as 

defined in this section that meets the requirements of subpart C of this 

part to affect an employee annuity, subpart E of this part to affect a 

refund of employee contributions, or subpart H of this part to award a 

former spouse survivor annuity. 

Employee "Employee" means an employee or Member covered by CSRS or 

FERS. 

Employee annuity "Employee annuity" means the recurring payments under CSRS or 

FERS made to a retiree. "Employee annuity" does not include payments 

of accrued and unpaid annuity after the death of a retiree under section 

8342(g) or section 8424(h) of title 5, United States Code. 

ERISA "ERISA" means the Employees Retirement Income Security Act, 

29 U.S.C. 1001 et seq. 

29
 
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Court Orders Generally
 

Federal Employees 

Retirement System or 

FERS 

"Federal Employees Retirement System" or "FERS" means the 

retirement system for Federal employees described in chapter 84 of title 

5, United States Code. 

Former spouse "Former spouse" means (1) in connection with a court order 

affecting an employee annuity or a refund of employee contributions, a 

living person whose marriage to an employee has been subject to a 

divorce, annulment of marriage, or legal separation resulting in a court 

order, or (2) in connection with a court order awarding a former spouse 

survivor annuity, a living person who was married for at least 9 months to 

an employee or retiree who performed at least 18 months of civilian 

service covered by CSRS or who performed at least 18 months of civilian 

service creditable under FERS, and whose marriage to the employee or 

retiree was terminated prior to the death of the employee or retiree. 

Former spouse survivor 

annuity 

"Former spouse survivor annuity" means a recurring benefit under 

CSRS or FERS, or the basic employee death benefit under FERS as 

described in part 843 of this chapter, that is payable to a former spouse 

after the employee's or retiree's death. 

Gross annuity "Gross annuity" means the amount of monthly annuity payable after 

reducing the self-only annuity to provide survivor annuity benefits, if any, 

but before any other deduction. Unless the court order expressly provides 

otherwise, "gross annuity" also includes any lump-sum payments made to 

the retiree under section 8343a or section 8420a of title 5, United States 

Code. 

Member "Member" means a Member of Congress covered by CSRS or 

FERS. 

Net annuity "Net annuity" means the amount of monthly annuity payable after 

deducting from the gross annuity any amounts that are (1) owed by the 

retiree to the United States, (2) deducted for health benefits premiums 

under section 8906 of title 5, United States Code, and §§ 891.401 and 

891.402 of this chapter, (3) deducted for life insurance premiums under 

section 8714a(d) of title 5, United States Code, (4) deducted for Medicare 

premiums, (5) properly withheld for Federal income tax purposes, if the 

amounts withheld are not greater than they would be if the retiree claimed 

all dependents to which he or she was entitled, or (6) properly withheld 

for State income tax purposes, if the amounts withheld are not greater 

than they would be if the retiree claimed all dependents to which he or 

she was entitled. Unless the court order expressly provides otherwise, 

"net annuity" also includes any lump-sum payments made to the retiree 

under section 8343a or section 8420a of title 5, United States Code. 

30
 
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Court Orders Generally
 

Reduction to provide "Reduction to provide survivor benefits" means the reduction 

survivor benefits required by section 8339(j)(4) or section 8419(a) of title 5, United States 

Code. 

Refund of employee "Refund of employee contributions" means a payment of the 

contributions lump-sum credit to a separated employee under section 8342(a) or section 

8424(a) of title 5, United States Code. "Refund of employee 

contributions" does not include lump-sum payments made under section 

8342(c) through (f) or section 8424(d) through (g) of title 5, United States 

Code. "Retiree" means a former employee or Member who is receiving 

recurring payments under CSRS or FERS based on his or her service as 

an employee. "Retiree" does not include a person receiving an annuity 

only as a current spouse, former spouse, child, or person with an 

insurable interest. "Self-only annuity" means the recurring payments to a 

retiree who has elected not to provide a survivor annuity to anyone. 

Unless the court order expressly provides otherwise, "self-only annuity" 

also includes any lump-sum payments made to the retiree under section 

8343a or section 8420a of title 5, United States Code. 

Separated employee "Separated employee" means a former employee or Member who 

has separated from a position in the Federal Government covered by 

CSRS and FERS under subpart B of part 831 of this chapter or subpart A 

of part 842 of this chapter, respectively, and is not currently employed in 

such a position, and who is not a retiree. 

S))))))))))))))))))))))))))))))))))))))))))) 

STATUTORY LIMIT ON STATUTORY LIMIT ON COURT'S AUTHORITY 

COURT'S AUTHORITY 

§ 838.111 Exemption § 838.111 Exemption from legal process except as authorized by 

from legal process except Federal law. 

as authorized by Federal 

law. (a) Employees, retirees, and State courts may not assign CSRS and 

FERS benefits except as provided in this part. 

(b) CSRS and FERS benefits are not subject to execution, levy, 

attachment, garnishment or other legal process except as expressly 

provided by Federal law. 

S))))))))))))))))))))))))))))))))))))))))))) 

31
 
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DIVISION OF DIVISION OF RESPONSIBILITIES 

RESPONSIBILITIES 

§ 838.121 OPM's 

responsibilities. 

§ 838.121 OPM's responsibilities. 

OPM is responsible for authorizing payments in accordance with 

clear, specific and express provisions of court orders acceptable for 

processing. 

S)))))))))))))))))))))))))))) 

§ 838.122 State courts' 

responsibilities. 

§ 838.122 State courts' responsibilities. 

State courts are responsible for-­

(a) Providing due process to the employee or retiree; 

(b) Issuing clear, specific, and express instructions consistent with 

the statutory provisions authorizing OPM to provide benefits to former 

spouses and the requirements of this part for awarding such benefits; 

(c) Using the terminology defined in this part only when it intends to 

use the meaning given to that terminology by this part; 

(d) Determining when court orders are invalid; and 

(e) Settling all disputes between the employee or retiree and the 

former spouse. 

S)))))))))))))))))))))))))))) 

§ 838.123 Claimants' 

responsibilities. 

§ 838.123 Claimants' responsibilities. 

Claimants are responsible for-­

(a) Filing a certified copy of court orders and all other required 

supporting information with OPM; 

(b) Keeping OPM advised of their current mailing addresses; 

(c) Notifying OPM of any changes in circumstances that could affect 

their entitlement to benefits; and 

(d) Submitting all disputes with employees or retirees to the 

appropriate State court for resolution. 

))))))))))))))))))))))))))))) 

32
 
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§ 838.124 Employees' 

and retirees' 

responsibilities. 

§ 838.124 Employees' and retirees' responsibilities. 

Employees and retirees are responsible for-­

(a) Raising any objections to the validity of a court order in the 

appropriate State court; and 

(b) Submitting all disputes with former spouses to the appropriate 

State court for resolution. 

S))))))))))))))))))))))))))))))))))))))))))) 

PROCEDURES PROCEDURES APPLICABLE TO ALL COURT ORDERS 

APPLICABLE TO ALL 

COURT ORDERS 

§ 838.131 Computation § 838.131 Computation of time. 

of time. 

(a) The rules applicable for computation of time under §§ 831.107 

and 841.109 of this chapter apply to this part. 

(b)(1) Appendix A of this subpart lists the proper addresses for 

submitting court orders affecting CSRS and FERS benefits. 

(2) A former spouse should submit the documentation required by 

this part to the address provided in Appendix A of this subpart. The 

component of OPM responsible for processing court orders will note the 

date of receipt on court orders that it receives. 

(3) If a court order is delivered to OPM at an address other than the 

address in Appendix A of this subpart, the recipient will forward the court 

order to the component of OPM responsible for processing court orders. 

However, OPM is not considered to have received the court order until 

the court order is received in the component of OPM responsible for 

processing court orders. 

S)))))))))))))))))))))))))))) 

§ 838.132 Payment § 838.132 Payment schedules. 

schedules. 

(a) Under CSRS and FERS, employee annuities and survivor 

annuities are payable on the first business day of the month following the 

month in which the benefit accrues. 

(b) In honoring and complying with a court order, OPM will not 

disrupt the payment schedule described in paragraph (a) of this section, 

despite any provision in the court order directing a different schedule of 

accrual or payment of amounts due the former spouse. 

33
 
Retirement Regulations
 

Court Orders Generally
 

§ 838.133 Minimum 

awards. 

§ 838.134 Receipt of 

multiple court orders. 

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§ 838.133 Minimum awards. 

Payments under this part will not be less than one dollar per month. 

Any court order that awards a former spouse a portion of an employee 

annuity or a former spouse survivor annuity in an amount of less than one 

dollar per month will be treated as an award of an annuity equal to one 

dollar per month. 

S)))))))))))))))))))))))))))) 

§ 838.134 Receipt of multiple court orders. 

(a) Except as provided in paragraph (c) of this section, for court 

orders affecting employee annuities or awarding former spouse survivor 

annuities, in the event that OPM receives two or more court orders 

acceptable for processing-­

(1) When the court orders affect two or more former spouses, the 

court orders will be honored in the order in which they were issued to the 

maximum extent possible under § 838.211 or § 838.711. 

(2) When two or more court orders relate to the same former spouse 

or separated spouse, the one issued last will be honored. 

(b)(1) Except as provided in paragraph (c) of this section, for court 

orders affecting refunds of employee contributions, in the event that OPM 

receives two or more court orders acceptable for processing-­

(i) When the court orders affect two or more former spouses-­

(A) The refund will not be paid if either court order prohibits 

payment of the refund of contributions; otherwise, 

(B) The court orders will be honored in the order in which they 

were issued until the contributions have been exhausted. 

(ii) When two or more court orders relate to the same former 

spouse, the one issued last will be honored first. 

(2) In no event will the amount paid out exceed the amount of the 

refund of employee contributions. 

(c) With respect to issues relating to the validity of a court order or 

to the amount of payment-­

34
 
Retirement Regulations
 

Court Orders Generally
 

§ 838.135 Settlements. 

§ 838.136 Administrative 

appeal rights. 

(1) If the employee, separated employee, retiree, or other person 

adversely affected by the court order and former spouse submit 

conflicting court orders from the same jurisdiction, OPM will consider 

only the latest court order; or 

(2) If the employee, separated employee, retiree, or other person 

adversely affected by the court order and former spouse submit 

conflicting court orders from different jurisdictions-­

(i) If one of the court orders is from the jurisdiction shown as the 

employee's, separated employee's, or retiree's address in OPM's 

records, OPM will consider only the court order issued by that 

jurisdiction; or 

(ii) If none of the court orders is from the jurisdiction shown as the 

employee's, separated employee's, or retiree's address in OPM's 

records, OPM will consider only the latest court order. 

S)))))))))))))))))))))))))))) 

§ 838.135 Settlements. 

(a) OPM must comply with the terms of a properly filed court order 

acceptable for processing even if the retiree and the former spouse agree 

that they want OPM to pay an amount different from the amount specified 

in the court order. Information about OPM's processing of amended 

court orders is contained in §§ 838.225 and 838.806. 

(b)(1) OPM will not honor a request from the former spouse that an 

amount less than the amount provided in the court order be withheld from 

an employee annuity or a refund of employee contributions. 

(2) OPM will not honor a request from the retiree that an amount 

greater than the amount provided in the court order be withheld from an 

employee annuity or a refund of employee contributions. 

S)))))))))))))))))))))))))))) 

§ 838.136 Administrative appeal rights. 

(a) Issues concerning application of these regulations are not 

appealable to the Merit Systems Protection Board. OPM's actions to 

apply these regulations are not subject to further administrative review. 

(b)(1) Issues concerning the validity of these regulations are 

appealable to the Merit Systems Protection Board. Such an appeal must 

be filed in accordance with the procedures established by the Board and 

may not be filed before OPM has issued its final decision, including a 

35
 
Retirement Regulations
 

Court Orders Generally
 

notice of the right to appeal, on the validity of the regulation. Such an 

appeal is limited to the issue of the validity of the regulation. 

(2) Any claim that a provision of these regulations is invalid, must 

be presented to the Merit Systems Protection Board before the validity of 

the regulation may be reviewed in the Federal courts. 

S))))))))))))))))))))))))))))))))))))))))))) 

ADDRESS FOR FILING 

COURT ORDERS WITH 

OPM 

ADDRESS FOR FILING COURT ORDERS WITH OPM 

Appendix A to Subpart A 

of Part 838--Addresses for 

Serving Court Orders 

Affecting CSRS or FERS 

Benefits. 

Appendix A to Subpart A of Part 838--Addresses for Serving Court 

Orders Affecting CSRS or FERS Benefits. 

(a) The mailing address for delivery of court orders affecting CSRS 

or FERS benefits by the United States Postal Service is-­

Office of Personnel Management 

Retirement and Insurance Group 

P.O. Box 17 

Washington DC 20044-0017. 

(b) The address for delivery of court orders affecting CSRS or 

FERS benefits by process servers, express carriers, or other forms of 

handcarried delivery is-­

Court-ordered Benefits Section 

Allotments Branch 

Retirement and Insurance Group 

Office of Personnel Management 

1900 E Street, N.W. 

Washington, DC. 

S))))))))))))))))))))))))))))))))))))))))))) 

36
 
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Procedures for Processing Court Orders Affecting Employee Annuities
 

Subpart B--Procedures 

for Processing Court 

Orders Affecting 

Employee Annuities 

Subpart B--Procedures for Processing Court Orders Affecting 

Employee Annuities 

REGULATORY 

STRUCTURE 

REGULATORY STRUCTURE 

§ 838.201 Purpose and 

scope. 

§ 838.201 Purpose and scope. 

(a) This subpart regulates the procedures that the Office of 

Personnel Management will follow upon the receipt of claims arising out 

of State court orders directed at employee annuities under CSRS or 

FERS. OPM must comply with qualifying court orders, decrees, or 

court-approved property settlements in connection with divorces, 

annulments of marriages, or legal separations of employees or retirees 

that award a portion of an employee annuity to a former spouse. 

(b) This subpart prescribes-­

(1) The circumstances that must occur before employee annuities 

are available to satisfy a court order acceptable for processing; and 

(2) The procedures that a former spouse must follow when applying 

for a portion of an employee annuity based on a court order under section 

8345(j) or section 8467 of title 5, United States Code. 

(c)(1) Subpart C of this part contains the rules that a court order 

must satisfy to be a court order acceptable for processing to affect an 

employee annuity. 

(2) Subpart F of this part contains definitions that OPM uses to 

determine the effect on employee annuity of a court order acceptable for 

processing. 

S))))))))))))))))))))))))))))))))))))))))))) 

AVAILABILITY OF AVAILABILITY OF FUNDS 

FUNDS 

§ 838.211 Amounts § 838.211 Amounts subject to court orders. 

subject to court orders. 

(a)(1) Employee annuities are subject to court orders acceptable for 

processing only if all of the conditions necessary for payment of the 

employee annuity to the former employee have been met, including, but 

not limited to-­

37
 
Retirement Regulations 

Procedures for Processing Court Orders Affecting Employee Annuities 

(i) Separation from a position in the Federal service covered by 

CSRS or FERS under subpart B of part 831 of this chapter or subpart A 

of part 842 of this chapter, respectively; 

(ii) Application for payment of the employee annuity by the former 

employee; and 

(iii) The former employee's immediate entitlement to an employee 

annuity. 

(2) Money held by an employing agency or OPM that may be 

payable at some future date is not available for payment under court 

orders directed at employee annuities. 

(3) OPM cannot pay a former spouse a portion of an employee 

annuity before the employee annuity begins to accrue. 

(b) Payment to a former spouse under a court order may not exceed 

the net annuity. 

(c) Waivers of employee annuity payments under the terms of 

section 8345(d) or section 8465(a) of title 5, United States Code, exclude 

the waived portion of the annuity from availability for payment under a 

court order if such waivers are postmarked or received before the date 

that OPM receives a court order acceptable for processing. 

S))))))))))))))))))))))))))))))))))))))))))) 

APPLICATION AND 

PROCESSING 

PROCEDURES 

APPLICATION AND PROCESSING PROCEDURES 

§ 838.221 Application 

requirements. 

§ 838.221 Application requirements. 

(a) A former spouse (personally or through a representative) must 

apply in writing to be eligible for a court-awarded portion of an employee 

annuity. No special form is required. 

(b) The application letter must be accompanied by-­

(l) A certified copy of the court order acceptable for processing that 

is directed at employee annuity; 

(2) A certification from the former spouse or the former spouse's 

representative that the court order is currently in force and has not been 

amended, superseded, or set aside; 

38
 
Retirement Regulations 

Procedures for Processing Court Orders Affecting Employee Annuities 

(3) Information sufficient for OPM to identify the employee or 

retiree, such as his or her full name, CSRS or FERS claim number, date 

of birth, and social security number; 

(4) The current mailing address of the former spouse; and 

(5) If the employee has not retired under CSRS or FERS or died, 

the mailing address of the employee. 

(c)(1) When court-ordered payments are subject to termination 

(under the terms of the court order) if the former spouse remarries, no 

payment will be made until the former spouse submits to OPM a 

statement in the form prescribed by OPM certifying-­

(i) That a remarriage has not occurred; 

(ii) That the former spouse will notify OPM within 15 calendar days 

of the occurrence of any remarriage; and 

(iii) That the former spouse will be personally liable for any 

overpayment to him or her resulting from a remarriage. 

(2) OPM may subsequently require periodic recertification of the 

statements required under paragraph (c)(1) of this section. 

S)))))))))))))))))))))))))))) 

§ 838.222 OPM action on § 838.222 OPM action on receipt of a court order acceptable for
 

receipt of a court order processing.
 

acceptable for processing.
 

(a) If OPM receives a court order acceptable for processing that is 

directed at an employee annuity that is in pay status, OPM will inform-­

(1) The former spouse-­

(i) That the court order is acceptable for processing; 

(ii) Of the date on which OPM received the court order, the date on 

which the former spouse's benefit begins to accrue, and if known, the 

date on which OPM commences payment under the order; 

(iii) Of the amount of the former spouse's monthly benefit and the 

formula OPM used to compute the monthly benefit; and 

(iv) That, if he or she disagrees with the amount of the monthly 

benefits, he or she must obtain, and submit to OPM, an amended court 

order clarifying the amount; and 

39
 
Retirement Regulations
 

Procedures for Processing Court Orders Affecting Employee Annuities
 

(2) The retiree-­

(i) That the former spouse has applied for benefits under this 

subpart; 

(ii) That the court order is acceptable for processing and that OPM 

must comply with the court order; 

(iii) Of the date on which OPM received the court order, the date on 

which the former spouse's benefit begins to accrue, and if known, the 

date on which OPM commences payment under the court order; 

(iv) Of the amount of the former spouse's monthly benefit and the 

formula OPM used to compute the monthly benefit; 

(v) That, if he or she contests the validity of the court order, he or 

she must obtain, and submit to OPM, a court order invalidating the court 

order submitted by the former spouse; and 

(vi) That, if he or she disagrees with the amount of the former 

spouse's monthly benefits, he or she must obtain, and submit to OPM, an 

amended court order clarifying the amount. 

(b) If OPM receives a court order acceptable for processing that is 

directed at an employee annuity but the employee has died, or if a retiree 

dies after payments from an employee to a former spouse have begun, 

OPM will inform the former spouse that the employee or retiree has died 

and that OPM can only honor court orders dividing employee annuities 

during the lifetime of the retiree. 

(c) If OPM receives a court order acceptable for processing that is 

directed at an employee annuity that is not in pay status, OPM will 

inform-­

(1) The former spouse-­

(i) That the court order is acceptable for processing; 

(ii) That benefits cannot begin to accrue until the employee retires; 

(iii) To the extent possible, the formula that OPM will use to 

compute the former spouse's monthly benefit; and 

(iv) That, if he or she disagrees with the formula, he or she must 

obtain, and submit to OPM, an amended court order clarifying the 

amount; and 

40
 
Retirement Regulations
 

Procedures for Processing Court Orders Affecting Employee Annuities
 

§ 838.223 OPM action on 

receipt of a court order 

not acceptable for 

processing. 

(2) The employee, separated employee, or retiree-­

(i) That the former spouse has applied for benefits under this 

subpart; 

(ii) That the court order is acceptable for processing and that OPM 

must comply with the court order; 

(iii) To the extent possible, the formula that OPM will use to 

compute the former spouse's monthly benefit; 

(iv) That, if he or she contests the validity of the court order, he or 

she must obtain, and submit to OPM, a court order invalidating the court 

order submitted by the former spouse; and 

(v) That, if he or she disagrees with the amount of the former 

spouse's monthly benefits, he or she must obtain, and submit to OPM, an 

amended court order clarifying the amount. 

(d) The failure of OPM to provide, or of the employee, separated 

employee, or retiree or the former spouse to receive, the information 

specified in this section prior to the commencing date of a reduction or 

accrual does not affect-­

(1) The validity of payment under the court order; or 

(2) The commencing date of the reduction in the employee annuity 

or the commencing date of the accrual of former spouse benefits as 

determined under § 838.231. 

S)))))))))))))))))))))))))))) 

§ 838.223 OPM action on receipt of a court order not acceptable for 

processing. 

If OPM receives an application from a former spouse not based on a 

court order acceptable for processing, OPM will inform the former 

spouse that OPM cannot approve the application and provide the specific 

reason(s) for disapproving the application. Examples of reasons for 

disapproving an application include that the court order does not meet the 

definition of court order in § 838.103 or does not meet one or more of the 

requirements of subpart C of this part. 

S)))))))))))))))))))))))))))) 

41
 
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§ 838.224 Contesting the 

validity of court orders. 

§ 838.224 Contesting the validity of court orders. 

(a) An employee, separated employee, or retiree who alleges that a 

court order is invalid must prove the invalidity of the court order by 

submitting a court order that-­

(1) Declares the court order submitted by the former spouse is 

invalid; or 

(2) Sets aside the court order submitted by the former spouse. 

(b) OPM must honor a court order acceptable for processing that 

appears to be valid and that the former spouse has certified is currently in 

force and has not been amended, superseded, or set aside, until OPM 

receives a court order described in paragraph (a) of this section or a court 

order amending or superseding the court order submitted by the former 

spouse. 

S)))))))))))))))))))))))))))) 

§ 838.225 Processing 

amended court orders. 

§ 838.225 Processing amended court orders. 

(a) If the employee, separated employee, retiree, or former spouse 

submits an amended court order pertaining to payment of a portion of the 

employee annuity, OPM will process the amended court order 

prospectively only, effective against employee annuity accruing beginning 

the first day of the second month after OPM receives the amended court 

order. 

(b) A court order is not effective to adjust payments prior to the first 

day of the second month after OPM receives the court order unless-­

(1) The court order-­

(i) Expressly directs OPM to adjust for payment made under the 

prior court order; and 

(ii) Determines the total amount of the adjustment or the length of 

time over which OPM will make the adjustment; and 

(iii) Provides a specific monthly amount of the adjustment or a 

formula to compute the amount of the monthly adjustment; and 

(2) Annuity continues to be available from which to make the 

adjustment. 

S))))))))))))))))))))))))))))))))))))))))))) 

42
 
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PAYMENT 

PROCEDURES 

PAYMENT PROCEDURES 

§ 838.231 Commencing 

date of payments. 

§ 838.231 Commencing date of payments. 

(a) A court order acceptable for processing is effective against 

employee annuity accruing beginning the first day of the second month 

after OPM receives the court order. 

(b)(1) OPM will not begin payments to the former spouse until 

OPM receives all the documentation required by § 838.221(b) and (c). 

(2) If payments are delayed under paragraph (b)(1) of this section, 

after OPM receives all required documentation, it will authorize payment 

of the annuity that has accrued since the date determined under paragraph 

(a) of this section but the payment of which was delayed under paragraph 

(b)(1) of this section. 

S)))))))))))))))))))))))))))) 

§ 838.232 Suspension of 

payments. 

§ 838.232 Suspension of payments. 

(a) Payments from employee annuities under this part will be 

discontinued whenever the employee annuity payments are suspended or 

terminated. If employee annuity payments to the retiree are restored, 

payments to the former spouse will also resume subject to the terms of 

any court order acceptable for processing in effect at that time. 

(b) Paragraph (a) of this section will not be applied to permit a 

retiree to deprive a former spouse of payment by causing suspension of 

payment of employee annuity. 

S)))))))))))))))))))))))))))) 

§ 838.233 Termination of 

payments. 

§ 838.233 Termination of payments. 

A former spouse portion of an employee annuity stops accruing at 

the earliest of-­

(a) The date on which the terms of the court order require 

termination; 

(b)(1) The last day of the first month before OPM receives a court 

order invalidating, vacating, or setting aside the court order submitted by 

the former spouse if OPM receives the latest court order no later than 20 

days before the end of the month; or 

(2) The last day of the month in which OPM receives a court order 

invalidating, vacating, or setting aside the court order submitted by the 

43
 
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Procedures for Processing Court Orders Affecting Employee Annuities
 

former spouse if OPM receives the latest court order later than 20 days 

before the end of the month; or 

(c) The last day of the first month after OPM receives an amended 

court order; 

(d) The last day of the first month before the death of the retiree; or 

(e) Except as provided in § 838.237, the date on which the former 

spouse dies. 

S)))))))))))))))))))))))))))) 

§ 838.234 Collection of § 838.234 Collection of arrearages. 

arrearages. 

Specific instructions are required before OPM may pay any 

arrearage. Except as provided in § 838.225(b), OPM will not increase a 

former spouse's share of employee annuity to satisfy an arrearage due the 

former spouse. However, under § 838.225, OPM will prospectively 

honor the terms of an amended court order that either increases or 

decreases the former spouse's entitlement. 

S)))))))))))))))))))))))))))) 

§ 838.235 Payment of 

lump-sum awards. 

§ 838.235 Payment of lump-sum awards. 

If a court order acceptable for processing awards a former spouse a 

lump-sum amount from the employee annuity and does not state the 

monthly rate at which OPM should pay the lump-sum, OPM will pay the 

former spouse equal monthly installments at 50 percent of the gross 

annuity (subject to the limitations under § 838.211) at the time of 

retirement or the date of the order, whichever comes later, until the 

lump-sum amount is paid. 

S)))))))))))))))))))))))))))) 

§ 838.236 Court orders 

barring payment of 

annuities. 

§ 838.236 Court orders barring payment of annuities. 

(a) State courts lack authority to prevent OPM from paying 

employee annuities as required by section 8345(a) or section 8463 of title 

5, United States Code. OPM will not honor court orders directing that 

OPM delay or otherwise not pay employee annuities at the time or in the 

amount required by statute. 

(b) Except as otherwise provided in this subpart, OPM will honor 

court orders acceptable for processing that direct OPM to pay the 

employee annuity to the court, an officer of the court acting as a 

fiduciary, or a State or local government agency during the pendency of a 

divorce or legal separation proceeding. 

S)))))))))))))))))))))))))))) 

44
 
Retirement Regulations
 

Procedures for Processing Court Orders Affecting Employee Annuities
 

§ 838.237 Death of the § 838.237 Death of the former spouse. 

former spouse. 

(a) Unless the court order acceptable for processing expressly 

provides otherwise, the former spouse's share of an employee annuity 

terminates on the last day of the month before the death of the former 

spouse, and the former spouse's share of employee annuity reverts to the 

retiree. 

(b) Except as otherwise provided in this subpart, OPM will honor a 

court order acceptable for processing or an amended court order 

acceptable for processing that directs OPM to pay, after the death of the 

former spouse, the former spouse's share of the employee annuity to-­

(1) The court; 

(2) An officer of the court acting as a fiduciary; 

(3) The estate of the former spouse; or 

(4) One or more of the retiree's children as defined in section 

8341(a)(4) or section 8441(4) of title 5, United States Code. 

S))))))))))))))))))))))))))))))))))))))))))) 

PROCEDURES FOR PROCEDURES FOR COMPUTING THE AMOUNT PAYABLE 

COMPUTING THE 

AMOUNT PAYABLE 

§ 838.241 Cost-of-living § 838.241 Cost-of-living adjustments. 

adjustments. 

Unless otherwise provided in the court order, when the terms of the 

court order or § 838.621 provide for cost-of-living adjustments on the 

former spouse's payment from employee annuity, the cost-of-living 

adjustment will be effected at the same time and at the same percentage 

rate as the cost-of-living adjustment in the employee annuity. 

S)))))))))))))))))))))))))))) 

§ 838.242 Computing § 838.242 Computing lengths of service. 

lengths of service. 

(a)(1) The smallest unit of time that OPM will calculate in 

computing a formula in a court order is a month, even where the court 

order directs OPM to make a more precise calculation. 

(2) If the court order states a formula using a specified simple or 

decimal fraction other than twelfth parts of a year, OPM will use the 

specified number to perform simple mathematical computations. 

45
 
Retirement Regulations 

Procedures for Processing Court Orders Affecting Employee Annuities 

(b) Unused sick leave is counted as "creditable service" on the date 

of separation for an immediate CSRS annuity; it is not apportioned over 

the time when earned. Unused sick leave is not countable as "creditable 

service" in a FERS annuity (except in a CSRS component for an 

employee who transferred to FERS) or in a deferred CSRS annuity. 

S)))))))))))))))))))))))))))) 

§ 838.243 Minimum § 838.243 Minimum amount of awards. 

amount of awards. 

OPM will treat any court order that awards a former spouse a 

portion of an employee annuity equal to less than $12 per year as 

awarding the former spouse $1 per month. 

S))))))))))))))))))))))))))))))))))))))))))) 

46
 
Retirement Regulations
 

Requirements for Court Orders Affecting Employee Annuities
 

Subpart C-­

Requirements for Court 

Orders Affecting 

Employee Annuities 

§ 838.301 Purpose and 

scope. 

§ 838.302 Language not 

acceptable for processing. 

Qualifying Domestic 

Relations Orders. 

Subpart C--Requirements for Court Orders Affecting Employee 

Annuities 

§ 838.301 Purpose and scope. 

This subpart regulates the requirements that a court order directed at 

employee annuity must meet to be a court order acceptable for 

processing. 

S)))))))))))))))))))))))))))) 

§ 838.302 Language not acceptable for processing. 

(a) Qualifying Domestic Relations Orders. (1) Any court order 

labeled as a "qualified domestic relations order" or issued on a form for 

ERISA qualified domestic relations orders is not a court order acceptable 

for processing unless the court order expressly states that the provisions 

of the court order concerning CSRS or FERS benefits are governed by 

this part. 

(2) When a court order is required by paragraph (a)(1) of this 

section to state that the provisions of a court order concerning CSRS or 

FERS benefits are governed by this part the court order must expressly-­

(i) Refer to part 838 of Title 5, Code of Federal Regulations, and 

(ii) State that the provisions of the court order concerning CSRS or 

FERS benefits are drafted in accordance with the terminology used in this 

part. 

(3) Although any language satisfying the requirements of paragraph 

(a)(2) of this section is sufficient to prevent a court order from being 

unacceptable under paragraph (a)(1) of this section, OPM recommends 

the use of the language provided in ¶001 in appendix A to subpart F of 

this part to state that the provisions of the court order concerning CSRS 

or FERS benefits are governed by this part. 

(4) A court order directed at employee annuity that contains the 

language described in paragraph (a)(2) of this section must also satisfy all 

other requirements of this subpart to be a court order acceptable for 

processing. 

(b) Benefits for the lifetime of the former spouse. Any court order 

directed at employee annuity that expressly provides that the former 

spouse's portion of the employee annuity may continue after the death of 

Benefits for the lifetime of 

the former spouse. 

47
 
Retirement Regulations
 

Requirements for Court Orders Affecting Employee Annuities
 

§ 838.303 Expressly 

dividing employee 

annuity. 

§ 838.304 Providing for 

payment to the former 

spouse. 

the employee or retiree, such as a court order providing that the former 

spouse's portion of the employee annuity will continue for the lifetime of 

the former spouse, is not a court order acceptable for processing. 

S)))))))))))))))))))))))))))) 

§ 838.303 Expressly dividing employee annuity. 

(a) A court order directed at employee annuity is not a court order 

acceptable for processing unless it expressly divides the employee annuity 

as provided in paragraph (b) of this section. 

(b) To expressly divide employee annuity as required by paragraph 

(a) of this section the court order must-­

(1) Identify the retirement system using terms that are sufficient to 

identify the retirement system as explained in § 838.611; and 

(2) Expressly state that the former spouse is entitled to a portion of 

the employee annuity using terms that are sufficient to identify the 

employee annuity as explained in § 838.612. 

S)))))))))))))))))))))))))))) 

§ 838.304 Providing for payment to the former spouse. 

(a) A court order directed at employee annuity is not a court order 

acceptable for processing unless it provides for OPM to pay the former 

spouse a portion of an employee annuity as provided in paragraph (b) of 

this section. 

(b) To provide for OPM to pay the former spouse a portion of an 

employee annuity as required by paragraph (a) of this section the court 

order must-­

(1) Expressly direct OPM to pay the former spouse directly; 

(2) Direct the retiree to arrange or to execute forms for OPM to pay 

the former spouse directly; or 

(3) Be silent concerning who is to pay the portion of the employee 

annuity awarded to the former spouse. 

(c) Except when the court order directed at employee annuity 

contains a provision described in paragraph (b)(2) of this section, a court 

order directed at employee annuity that instructs the retiree to pay a 

portion of the employee annuity to the former spouse is not a court order 

acceptable for processing. 

48
 
Retirement Regulations
 

Requirements for Court Orders Affecting Employee Annuities
 

§ 838.305 OPM 

computation of formulas. 

(d) Although paragraphs (b)(2) and (b)(3) of this section provide 

acceptable methods for satisfying the requirement that a court order 

directed at employee annuity provide for OPM to pay the former spouse, 

OPM strongly recommends that any court order directed at employee 

annuity expressly direct OPM to pay the former spouse directly. 

S)))))))))))))))))))))))))))) 

§ 838.305 OPM computation of formulas. 

(a) A court order directed at employee annuity is not a court order 

acceptable for processing unless the court order provides sufficient 

instructions and information that OPM can compute the amount of the 

former spouse's monthly benefit using only the express language of the 

court order, subparts A, B, and F of this part, and information from 

normal OPM files. 

(b)(1) To provide sufficient instructions and information for OPM to 

compute the amount of the former spouse's share of the employee annuity 

as required by paragraph (a) of this section the court order must state the 

former spouse's share as-­

(i) A fixed amount; 

(ii) A percentage or a fraction of the employee annuity; or 

(iii) A formula that does not contain any variables whose values are 

not readily ascertainable from the face of the court order directed at 

employee annuity or normal OPM files. 

(2) Normal OPM files include information about-­

(i) The dates of employment for all periods of creditable civilian and 

military service; 

(ii) The rate of basic pay for all periods of creditable civilian 

service; 

(iii) The annual rates of basic pay for each grade and step under the 

General Schedule since 1920; 

(iv) The amount of premiums for basic and optional life insurance 

under the Federal Employees Group Life Insurance Program; 

(v) The amount of the Government and the employee shares of 

premiums for any health insurance plan under the Federal Employees 

Health Benefits Program; 

49
 
Retirement Regulations
 

Requirements for Court Orders Affecting Employee Annuities
 

(vi) The standard Federal income tax withholding tables; 

(vii) The amount of cost-of-living adjustments under section 8340 or 

section 8462 of title 5, United States Code, and the amount of the 

percentage change in the national index on which the adjustment is based; 

(viii) The amount of pay adjustments to the General Schedule under 

section 5303 (or section 5305 prior to November 5, 1990) of title 5, 

United States Code, and the amount of the percentage change in the 

national index on which the adjustment is based; 

(ix) The provision of law under which a retiree has retired; and 

(x) Whether a retiree has elected to provide survivor benefits for a 

current spouse, former spouse, or a person with an insurable interest. 

(c)(1) A court order directed at employee annuity is not a court 

order acceptable for processing if OPM would have to examine a State 

statute or court decision (on a different case) to understand, establish, or 

evaluate the formula for computing the former spouse's share of the 

employee annuity. 

(2) A court order directed at employee annuity is not a court order 

acceptable for processing if it awards the former spouse a "community 

property" fraction, share, or percentage of the employee annuity and does 

not provide a formula by which OPM can compute the amount of the 

former spouse's share of the employee annuity from the face of the court 

order or from normal OPM files. 

(d) A court order directed at employee annuity is not a court order 

acceptable for processing if the court order awards a portion of the 

"present value" of an annuity unless the amount of the "present value" is 

stated in the court order. 

(e) A court order directed at employee annuity is not a court order 

acceptable for processing if the court order directs OPM to determine a 

rate of employee annuity that would require OPM to determine a salary 

or average salary, other than a salary or average salary actually used in 

computing the employee annuity, as of a date prior to the date of the 

employee's separation and to adjust that salary for use in computing the 

former spouse share unless the adjustment is by-­

(1) A fixed amount or fixed annual amounts that are stated in the 

order; 

(2) The rate of cost-of-living or salary adjustments as those terms 

are described in § 838.622; 

50
 
Retirement Regulations
 

Requirements for Court Orders Affecting Employee Annuities
 

(3) The percentage change in pay that the employee actually 

received excluding changes in grade and/or step; or 

(4) The percentage change in either of the national indices used to 

compute cost-of-living or salary adjustments as those terms are described 

in § 838.622. 

S)))))))))))))))))))))))))))) 

§ 838.306 Specifying type 

of annuity for application 

of formula, percentage or 

fraction. 

§ 838.306 Specifying type of annuity for application of formula, 

percentage or fraction. 

(a) A court order directed at employee annuity that states the former 

spouse's share of employee annuity as a formula, percentage, or fraction 

is not a court order acceptable for processing unless OPM can determine 

the type of annuity on which to apply the formula, percentage, or 

fraction. 

(b) The standard types of annuity to which OPM can apply the 

formula, percentage, or fraction are net annuity, gross annuity, or 

self-only annuity, which are defined in § 838.103. Unless the court order 

otherwise directs, OPM will apply the formula, percentage, or fraction to 

gross annuity. Section 838.625 contains information on other methods of 

describing these types of annuity. 

S))))))))))))))))))))))))))))))))))))))))))) 

51
 
Retirement Regulations
 

Procedures for Processing Court Orders Affecting 

Refunds of Employee Contributions
 

Subpart D--Procedures 

for Processing Court 

Orders Affecting Refunds 

of Employee 

Contributions 

Subpart D--Procedures for Processing Court Orders Affecting 

Refunds of Employee Contributions 

REGULATORY 

STRUCTURE 

REGULATORY STRUCTURE 

§ 838.401 Purpose and 

scope. 

§ 838.401 Purpose and scope. 

(a) This subpart regulates the procedures that the Office of 

Personnel Management will follow upon the receipt of claims arising out 

of State court orders that affect refunds of employee contributions under 

CSRS or FERS. OPM must comply with court orders, decrees, or 

court-approved property settlements in connection with divorces, 

annulments of marriages, or legal separations of employees or retirees 

that-­

(1) Award a portion of a refund of employee contributions to a 

former spouse; or 

(2) If the requirements of §§ 838.431 and 838.505 are met, bar 

payment of a refund of employee contributions. 

(b) This subpart prescribes-­

(1) The circumstances that must occur before refunds of employee 

contributions are available to satisfy a court order acceptable for 

processing; and 

(2) The procedures that a former spouse must follow when applying 

for a portion of a refund of employee contributions based on a court order 

under section 8345(j) or section 8467 of title 5, United States Code. 

(c)(1) Subpart E of this part contains the rules that a court order 

directed at a refund of employee contributions must satisfy to be a court 

order acceptable for processing. 

(2) Subpart F of this part contains definitions that OPM uses to 

determine the effect on a refund of employee contributions of a court 

order acceptable for processing. 

S))))))))))))))))))))))))))))))))))))))))))) 

52
 
Retirement Regulations
 

Procedures for Processing Court Orders Affecting 

Refunds of Employee Contributions
 

AVAILABILITY OF 

FUNDS 

AVAILABILITY OF FUNDS 

§ 838.411 Amounts 

subject to court orders. 

§ 838.411 Amounts subject to court orders. 

(a)(1) Refunds of employee contributions are subject to court orders 

acceptable for processing only if all of the conditions necessary for 

payment of the refund of employee contributions to the separated 

employee have been met, including, but not limited to-­

(i) Separation from a covered position in the Federal service; 

(ii) Application for payment of the refund of employee contributions 

by the separated employee; and 

(iii) Immediate entitlement to a refund of employee contributions. 

(2) Money held by an employing agency or OPM that may be 

payable at some future date is not available for payment under court 

orders directed at refunds of employee contributions. 

(b) Payment under a court order may not exceed the amount of the 

refund of employee contributions. 

S))))))))))))))))))))))))))))))))))))))))))) 

APPLICATION AND APPLICATION AND PROCESSING PROCEDURES 

PROCESSING 

PROCEDURES 

§ 838.421 Application § 838.421 Application requirements. 

requirements. 

(a) A former spouse (personally or through a representative) must 

apply in writing to be eligible for a court-awarded portion of a refund of 

employee contributions. No special form is required. 

(b) The application letter must be accompanied by-­

(l) A certified copy of the court order acceptable for processing that 

is directed at a refund of employee contributions. 

(2) A certification from the former spouse or the former spouse's 

representative that the court order is currently in force and has not been 

amended, superseded, or set aside; 

53
 
Retirement Regulations
 

Procedures for Processing Court Orders Affecting 

Refunds of Employee Contributions
 

§ 838.422 Timeliness of 

application. 

§ 838.423 OPM action on 

receipt of a court order 

acceptable for processing. 

(3) Information sufficient for OPM to identify the employee or 

separated employee, such as his or her full name, date of birth, and social 

security number; 

(4) The current mailing address of the former spouse; and 

(5) If the employee or separated employee has not applied for a 

refund of employee contributions, the current mailing address of the 

employee or separated employee. 

S)))))))))))))))))))))))))))) 

§ 838.422 Timeliness of application. 

(a) Except as provided in § 838.431 and paragraph (b) of this 

section, a court order acceptable for processing that is directed at a refund 

of employee contributions is not effective unless OPM receives the 

documentation required by § 838.421 not later than-­

(1) The last day of the second month before payment of the refund; 

or 

(2) Twenty days after OPM receives the Statement required by 

§ 831.2007(c) or § 843.208(b) of this chapter if the former spouse has 

indicated on that Statement that such a court order exists. 

(b) If OPM receives a copy of a court order acceptable for 

processing that is directed at a refund of employee contributions but not 

all of the documentation required by § 838.421, OPM will notify the 

former spouse that OPM must receive the missing items within 15 days 

after the date of the notice or OPM cannot comply with the court order. 

S)))))))))))))))))))))))))))) 

§ 838.423 OPM action on receipt of a court order acceptable for 

processing. 

(a) If OPM receives a court order acceptable for processing that is 

directed at a refund of employee contributions, OPM will inform-­

(1) The former spouse-­

(i) That the court order is acceptable for processing; 

(ii) Of the date on which OPM received the court order; 

(iii) Whether OPM has a record of unrefunded employee 

contributions on the employee; 

54
 
Retirement Regulations
 

Procedures for Processing Court Orders Affecting 

Refunds of Employee Contributions
 

(iv) That the former spouse's share of the refund of employee 

contributions cannot be paid unless the employee separates from the 

Federal service and applies for a refund of employee contributions; 

(v) To the extent possible, the formula that OPM will use to 

compute the former spouse's share of a refund of employee contributions; 

and 

(vi) That, if the former spouse disagrees with the formula, the 

former spouse must obtain, and submit to OPM, an amended court order 

clarifying the amount; and 

(2) The employee or separated employee-­

(i) That the former spouse has applied for benefits under this 

subpart; 

(ii) That the court order is acceptable for processing and that OPM 

must comply with the court order; 

(iii) Of the date on which OPM received the court order; 

(iv) That the former spouse's share of the refund of employee 

contributions cannot be paid unless the employee separates from the 

Federal service and applies for a refund of employee contributions; 

(v) To the extent possible, the formula that OPM will use to 

compute the former spouse's share of the refund of employee 

contributions; 

(vi) That, if he or she contests the validity of the court order, he or 

she must obtain, and submit to OPM, a court order invalidating the court 

order submitted by the former spouse; and 

(vii) That, if he or she disagrees with the formula, he or she must 

obtain, and submit to OPM, an amended court order clarifying the 

amount. 

(b) The failure of OPM to provide, or of the employee or separated 

employee or the former spouse to receive, the information specified in 

this section does not affect the validity of payment under the court order. 

S)))))))))))))))))))))))))))) 

55
 
Retirement Regulations
 

Procedures for Processing Court Orders Affecting 

Refunds of Employee Contributions
 

§ 838.424 OPM action on § 838.424 OPM action on receipt of a court order not acceptable for 

receipt of a court order processing. 

not acceptable for 

processing. If OPM receives an application from a former spouse not based on a 

court order acceptable for processing, OPM will inform the former 

spouse that OPM cannot approve the application and provide the specific 

reason(s) for disapproving the application. Examples of reasons for 

disapproving an application include that the order does not meet the 

definition of court order in § 838.103 or does not meet one or more of the 

requirements of subpart E of this part. 

S)))))))))))))))))))))))))))) 

§ 838.425 Contesting the § 838.425 Contesting the validity of court orders. 

validity of court orders. 

(a) An employee or separated employee who alleges that a court 

order is invalid must prove the invalidity of the court order by submitting 

a court order that-­

(1) Declares invalid the court order submitted by the former spouse; 

or 

(2) Sets aside the court order submitted by the former spouse. 

(b) OPM must honor a court order acceptable for processing that 

appears to be valid and that the former spouse has certified is currently in 

force and has not been amended, superseded, or set aside, until the 

employee or separated employee submits a court order described in 

paragraph (a) of this section or a court order amending or superseding the 

court order submitted by the former spouse. 

S))))))))))))))))))))))))))))))))))))))))))) 

PAYMENT PAYMENT PROCEDURES 

PROCEDURES 

§ 838.431 Correcting § 838.431 Correcting failures to provide required spousal 

failures to provide notification. 

required spousal 

notification. The interests of a former spouse with a court order acceptable for 

processing that is directed at a refund of employee contributions who does 

not receive notice of an application for refund of employee contributions 

because the employee or separated employee submits fraudulent proof of 

notification or fraudulent proof that the former spouse's whereabouts are 

unknown are protected if, and only if-­

56
 
Retirement Regulations
 

Procedures for Processing Court Orders Affecting 

Refunds of Employee Contributions
 

(a) The former spouse files a court order acceptable for processing 

that affects or bars the refund of employee contributions with OPM no 

later than the last day of the second month before the payment of the 

refund; or 

(b) The former spouse submits proof that-­

(1) The evidence submitted by the employee was fraudulent; and 

(2) Absent the fraud, the former spouse would have been able to 

submit the necessary documentation required by § 838.421 within the 

time limit prescribed in § 838.422. 

S)))))))))))))))))))))))))))) 

§ 838.432 Court orders 

barring payment of 

refunds. 

§ 838.432 Court orders barring payment of refunds. 

A court order, notice, summons, or other document that attempts to 

restrain OPM from paying a refund of employee contributions is not 

effective unless it meets all the requirements of § 838.505 or part 581 of 

this chapter. 

S))))))))))))))))))))))))))))))))))))))))))) 

PROCEDURES FOR PROCEDURES FOR COMPUTING THE AMOUNT PAYABLE 

COMPUTING THE 

AMOUNT PAYABLE 

§ 838.441 Computing § 838.441 Computing lengths of service. 

lengths of service. 

(a) The smallest unit of time that OPM will calculate in computing a 

formula in a court order is a month, even where the court order directs 

OPM to make a more precise calculation. 

(b) If the court order states a formula using a specified simple or 

decimal fraction other than twelfth parts of a year, OPM will use the 

specified number to perform simple mathematical computations. 

S))))))))))))))))))))))))))))))))))))))))))) 

57
 
Retirement Regulations
 

Requirements for Court Orders Affecting Refunds of Employee
 

Contributions
 

Subpart E-­

Requirements for Court 

Orders Affecting Refunds 

of Employee 

Contributions 

Subpart E--Requirements for Court Orders Affecting Refunds of 

Employee Contributions 

§ 838.501 Purpose and 

scope. 

§ 838.501 Purpose and scope. 

This subpart regulates the requirements that a court order directed at 

or barring a refund of employee contributions must meet to be a court 

order acceptable for processing. 

(a) A court order is directed at a refund of employee contributions if 

it awards a former spouse a portion of a refund of employee 

contributions. 

(b) A court order bars a refund of employee contributions if it 

prohibits payment of a refund of employee contributions to preserve a 

former spouse's court-awarded entitlement to a portion of an employee 

annuity or to a former spouse survivor annuity. 

S)))))))))))))))))))))))))))) 

§ 838.502 Expressly 

dividing a refund of 

employee contributions. 

§ 838.502 Expressly dividing a refund of employee contributions. 

(a) A court order directed at a refund of employee contributions is 

not a court order acceptable for processing unless it expressly awards a 

former spouse a portion of a refund of employee contributions as 

provided in paragraph (b) of this section. 

(b) To expressly award a former spouse a portion of a refund of 

employee contributions as required by paragraph (a) of this section, the 

court order must-­

(1) Identify the retirement system using terms that are sufficient to 

identify the retirement system as explained in § 838.611; and 

(2) Expressly state that the former spouse is entitled to a portion of a 

refund of employee contributions using terms that are sufficient to identify 

the refund of employee contributions as explained in § 838.612. 

S)))))))))))))))))))))))))))) 

58
 
Retirement Regulations
 

Requirements for Court Orders Affecting Refunds of Employee
 

Contributions
 

§ 838.503 Providing for 

payment to the former 

spouse. 

§ 838.503 Providing for payment to the former spouse. 

(a) A court order directed at a refund of employee contributions is 

not a court order acceptable for processing unless it provides for OPM to 

pay a portion of a refund of employee contributions to the former spouse 

as provided in paragraph (b) of this section. 

(b) To provide for OPM to pay a portion of a refund of employee 

contributions to the former spouse as required by paragraph (a) of this 

section, the court order must-­

(1) Expressly direct OPM to pay the former spouse directly; 

(2) Direct the employee or separated employee to arrange or to 

execute forms for OPM to pay the former spouse directly; or 

(3) Be silent concerning who is to pay the portion of the refund of 

employee contributions awarded to the former spouse. 

(c) Although paragraphs (b)(2) and (b)(3) of this section provide 

acceptable methods for satisfying the requirement that the court order 

provide for OPM to pay the former spouse, OPM strongly recommends 

that the court order expressly direct OPM to pay the former spouse 

directly. 

S)))))))))))))))))))))))))))) 

§ 838.504 OPM 

computation of formulas. 

§ 838.504 OPM computation of formulas. 

(a) A court order directed at a refund of employee contributions is 

not a court order acceptable for processing unless the court order 

provides sufficient instructions and information so that OPM can compute 

the amount of the former spouse's share of the refund of employee 

contributions using only the express language of the court order, subparts 

A, D, and F of this part, and information from normal OPM files. 

(b) To provide sufficient instructions and information that OPM can 

compute the amount of the former spouse's share of the refund of 

employee contributions as required by paragraph (a) of this section 

requires that the court order state the former spouse's share as-­

(1) A fixed amount; 

(2) A percentage or a fraction of the refund of employee 

contributions; or 

59
 
Retirement Regulations
 

Requirements for Court Orders Affecting Refunds of Employee
 

Contributions
 

(3) A formula that does not contain any variables whose values are 

not readily ascertainable from the face of the court order or normal OPM 

files. 

(c) A court order directed at a refund of employee contributions is 

not a court order acceptable for processing if OPM would have to 

examine a State statute or court decision (on a different case) to 

understand, establish, or evaluate the formula for computing the former 

spouse's share of the refund of employee contributions. 

S)))))))))))))))))))))))))))) 

§ 838.505 Barring § 838.505 Barring payment of refunds. 

payment of refunds. 

A court order barring payment of a refund of employee 

contributions is not a court order acceptable for processing unless-­

(a) It expressly directs OPM not to pay a refund of employee 

contributions; 

(b) It awards, or a prior court order acceptable for processing has 

awarded, the former spouse a former spouse survivor annuity or a portion 

of the employee annuity; and 

(c) Payment of the refund of employee contributions would prevent 

payment to the former spouse under the court order described in 

paragraph (b) of this section. 

S))))))))))))))))))))))))))))))))))))))))))) 

60
 
Retirement Regulations
 

Terminology Used in Court Orders Affecting Employee Annuities

 or Refunds of Employee Contributions
 

Subpart F--Terminology 

Used in Court Orders 

Affecting Employee 

Annuities or Refunds of 

Employee Contributions 

Subpart F--Terminology Used in Court Orders Affecting Employee 

Annuities or Refunds of Employee Contributions 

REGULATORY 

STRUCTURE 

REGULATORY STRUCTURE 

§ 838.601 Purpose and 

scope. 

§ 838.601 Purpose and scope. 

(a) This subpart regulates the meaning of terms necessary to award 

benefits in a court order directed at an employee annuity or a refund of 

employee contributions. OPM applies the meanings to determine whether 

a court order directed at an employee annuity or a refund of employee 

contributions is a court order acceptable for processing and to establish 

the amount of the former spouse's share of an employee annuity or a 

refund of employee contributions. 

(b)(1) This subpart establishes a uniform meaning to be used for 

terms and phrases frequently used in awarding a former spouse a portion 

of an employee annuity or a refund of employee contributions. 

(2) This subpart informs the legal community about the definitions to 

apply terms used in drafting court orders so that the resulting court orders 

contain the proper language to accomplish the aims of the court. 

(c)(1) To assist attorneys and courts in preparing court orders that 

OPM can honor in the manner that the court intends, Appendix A of this 

subpart contains model language to accomplish many of the more 

common objectives associated with the award of a former spouse's share 

of an employee annuity or a refund of employee contributions. 

(2) By using the language in Appendix A of this subpart, the court, 

attorneys, and parties will know that the court order will be acceptable for 

processing and that OPM will treat the terminology used in the court 

order in the manner stated in the Appendix. 

S))))))))))))))))))))))))))))))))))))))))))) 

61
 
Retirement Regulations
 

Terminology Used in Court Orders Affecting Employee Annuities

 or Refunds of Employee Contributions
 

IDENTIFICATION OF IDENTIFICATION OF BENEFITS 

BENEFITS 

§ 838.611 Identifying the 

retirement system. 

§ 838.611 Identifying the retirement system. 

(a) To satisfy the requirements of § 838.303(b)(1) or 

§ 838.502(b)(1), a court order must contain language identifying the 

retirement system to be affected. For example, "CSRS," "FERS," 

"OPM," or "Federal Government" benefits, or benefits payable "based 

on service with the U.S. Department of Agriculture," etc., are sufficient 

identification of the retirement system. 

(b) Except as provided in paragraphs (b)(1) and (b)(2) of this 

section, language referring to benefits under another retirement system, 

such as military retired pay, Foreign Service retirement benefits or 

Central Intelligence Agency retirement benefits, does not satisfy the 

requirements of § 838.303(b)(1) or § 838.502(b)(1). 

(1) A court order that mistakenly labels CSRS benefits as FERS 

benefits and vice versa satisfies the requirements of §§ 838.303(b)(1) and 

838.502(b)(1). 

(2) Unless the court order expressly provides otherwise, for 

employees transferring to FERS, court orders directed at CSRS benefits 

apply to the entire FERS basic benefit, including the CSRS component, if 

any. Such a court order satisfies the requirements of §§ 838.303(b)(1) 

and 838.502(b)(1). 

(c) A court order affecting military retired pay, even when military 

retired pay has been waived for inclusion in CSRS annuities, does not 

award a former spouse a portion of an employee annuity or a refund of 

employee contributions under CSRS or FERS. Such a court order does 

not satisfy the requirements of § 838.303(b)(1) or § 838.502(b)(1). 

S)))))))))))))))))))))))))))) 

§ 838.612 Distinguishing 

between annuities and 

§ 838.612 Distinguishing between annuities and contributions. 

contributions. (a) A court order using "annuities," "pensions," "retirement 

benefits," or similar terms satisfies the requirements of §§ 838.303(b)(2) 

and 838.502(b)(2) and may be used to divide an employee annuity and a 

refund of employee contributions. 

(b)(1) A court order using "contributions," "deductions," 

"deposits," "retirement accounts," "retirement fund," or similar terms 

satisfies the requirements of § 838.502(b)(2) and may be used only to 

62
 
Retirement Regulations
 

Terminology Used in Court Orders Affecting Employee Annuities

 or Refunds of Employee Contributions
 

divide the amount of contributions that the employee has paid into the 

Civil Service Retirement and Disability Fund. 

(2) Unless the court order specifically states otherwise, when an 

employee annuity is payable, a court order using the terms specified in 

paragraph (b)(1) of this section satisfies the requirements of 

§ 838.303(b)(2) and awards the former spouse a benefit to be paid in 

equal monthly installments at 50 percent of the gross annuity at the time 

of retirement or the date of the court order, whichever comes later, until 

the specific dollar amount is reached. 

S))))))))))))))))))))))))))))))))))))))))))) 

COMPUTATION OF 

BENEFITS 

COMPUTATION OF BENEFITS 

§ 838.621 Prorata share. § 838.621 Prorata share. 

(a) "Prorata share" means one-half of the fraction whose numerator 

is the number of months of Federal civilian and military service that the 

employee performed during the marriage and whose denominator is the 

total number of months of Federal civilian and military service performed 

by the employee. 

(b) A court order that awards a former spouse a prorata share of an 

employee annuity or a refund of employee contributions by using the term 

"prorata share" and identifying the date when the marriage began satisfies 

the requirements of §§ 838.305 and 838.504 and awards the former 

spouse a prorata share as defined in paragraph (a) of this section. 

(c) A court order that awards a portion of an employee annuity as of 

a specified date before the employee's retirement awards the former 

spouse a prorata share as defined in paragraph (a) of this section. 

(d) A court order that awards a portion of the "value" of an annuity 

as of a specific date before retirement, without specifying what "value" 

is, awards the former spouse a prorata share as defined in paragraph (a) 

of this section. 

S)))))))))))))))))))))))))))) 

63
 
Retirement Regulations
 

Terminology Used in Court Orders Affecting Employee Annuities

 or Refunds of Employee Contributions
 

§ 838.622 Cost-of-living 

and salary adjustments. 

§ 838.622 Cost-of-living and salary adjustments. 

(a)(1) A court order that awards adjustments to a former spouse's 

portion of an employee annuity stated in terms such as "cost-of-living 

adjustments" or "COLA's" occurring after the date of the decree but 

before the date of retirement provides increases equal to the adjustments 

described in or effected under section 8340 or section 8462 of title 5, 

United States Code. 

(2) A court order that awards adjustments to a former spouse's 

portion of an employee annuity stated in terms such as "salary 

adjustments" or "pay adjustments" occurring after the date of the decree 

provides increases equal to the adjustments described in or effected under 

section 5303 of title 5, United States Code until the date of retirement. 

(b)(1) Unless the court order directly and unequivocally orders 

otherwise, a court order that awards a former spouse a portion of an 

employee annuity either on a percentage basis or by use of a fraction or 

formula provides that the former spouse's share of the employee annuity 

will be adjusted to maintain the same percentage or fraction whenever the 

employee annuity changes as a result of-­

(i) Salary adjustments occurring after the date of the decree and 

before the employee retires; and 

(ii) Cost-of-living adjustments occurring after the date of the decree 

and after the date of the employee's retirement. 

(2) A court order that awards a former spouse a specific dollar 

amount from the employee annuity prevents the former spouse from 

benefiting from salary and cost-of-living adjustments after the date of the 

decree, unless the court expressly orders their inclusion. 

(c)(1)(i) Except as provided in paragraph (b) of this section, a court 

order that contains a general instruction to calculate the former spouse's 

share effective at the time of divorce or separation entitles the former 

spouse to the benefit of salary adjustments occurring after the specified 

date to the same extent as the employee. 

(ii) To prevent the application of salary adjustments after the date of 

the divorce or separation, the court order must either state the exact 

dollar amount of the award to the former spouse or specifically instruct 

OPM not to apply salary adjustments after the specified date in computing 

the former spouse's share of the employee annuity. 

64
 
Retirement Regulations
 

Terminology Used in Court Orders Affecting Employee Annuities

 or Refunds of Employee Contributions
 

§ 838.623 Computing 

lengths of service. 

(2)(i) Except as provided in paragraph (b) of this section, a court 

order that requires OPM to compute a benefit as of a specified date 

before the employee's retirement, and specifically instructs OPM not to 

apply salary adjustments after the specified date in computing the former 

spouse's share of an employee annuity provides that the former spouse is 

entitled to the application of cost-of-living adjustments after the date of the 

employee's retirement in the manner described in § 838.241. 

(ii) To award cost-of-living adjustments between a specified date and 

the employee's retirement, the court order must specifically instruct OPM 

to adjust the former spouse's share of the employee annuity by any 

cost-of-living adjustments occurring between the specified date and the 

date of the employee's retirement. 

(iii) To prevent the application of cost-of-living adjustments that 

occur after the employee annuity begins to accrue to the former spouse's 

share of the employee annuity, the decree must either state the exact 

dollar amount of the award to the former spouse or specifically instruct 

OPM not to apply cost-of-living adjustments occurring after the date of 

the employee's retirement. 

S)))))))))))))))))))))))))))) 

§ 838.623 Computing lengths of service. 

(a) Sections 838.242 and 838.441 contain information on how OPM 

calculates lengths of service. 

(b) Unless the court order otherwise expressly directs-­

(1) For the purpose of describing a period of time to be excluded 

from any element of a computation, the term "military service" means 

military service as defined in section 8331(13) of title 5, United States 

Code, and does not include civilian service with the Department of 

Defense or the Coast Guard; and 

(2) For the purpose of describing a period of time to be included in 

any element of a computation, the term "military service" means all 

periods of military and civilian service performed with the Department of 

Defense or the Coast Guard. 

(c)(1) When a court order contains a formula for dividing employee 

annuity that requires a computation of service worked as of a date prior to 

separation and using terms such as "years of service," "total service," 

"service performed," or similar terms, the time attributable to unused 

sick leave will not be included. 

65
 
Retirement Regulations
 

Terminology Used in Court Orders Affecting Employee Annuities

 or Refunds of Employee Contributions
 

(2) When a court order contains a formula for dividing employee 

annuity that requires a computation of "creditable service" (or some other 

phrase using "credit" or its equivalent) as of a date prior to retirement, 

unused sick leave will be included in the computation (involving a CSRS 

employee annuity or the CSRS component of a FERS employee annuity) 

as follows: 

(i) If the amount of unused sick leave is specified, the court order 

awards a portion of the employee annuity equal to the monthly employee 

annuity at retirement times a fraction, the numerator of which is the 

number of months of "creditable service" as of the date specified plus the 

number of months of unused sick leave specified (which sum is rounded 

to eliminate partial months) and whose denominator is the months of 

"creditable service" used in the retirement computation. 

(ii) If the amount of unused sick leave is not specified, the court 

order awards a portion of the employee annuity equal to the monthly rate 

at the time of retirement times a fraction, the numerator of which is the 

number of months of "creditable service" as of the date specified (no sick 

leave included) and whose denominator is the number of months of 

"creditable service" used in the retirement computation (sick leave 

included). 

(d)(1) General language such as "benefits earned as an employee 

with the U.S. Postal Service . . ." provides only that CSRS retirement 

benefits are subject to division and does not limit the period of service 

included in the computation (i.e., service performed with other 

Government agencies will be included). 

(2) To limit the computation of benefits to a particular period of 

employment, the court order must-­

(i) Use language expressly limiting the period of service to be 

included in the computation (e.g., "only U.S. Postal Service" or 

"exclusive of any service other than U.S. Postal Service employment"); 

or 

(ii) Specify the number of months to be included in the computation; 

or 

(iii) Describe specifically the period of service to be included in the 

computation (e.g., "only service performed during the period Petitioner 

and Defendant were married" or "benefits based on service performed 

through the date of divorce"). 

S)))))))))))))))))))))))))))) 

66
 
Retirement Regulations
 

Terminology Used in Court Orders Affecting Employee Annuities

 or Refunds of Employee Contributions
 

§ 838.624 Distinguishing 

between formulas and 

fixed amounts. 

§ 838.624 Distinguishing between formulas and fixed amounts. 

(a) A court order that contains both a formula or percentage 

instruction and a dollar amount is deemed to include the dollar amount 

only as the court's estimate of the initial amount of payment. The 

formula or percentage instruction controls. 

(b) A court order that awards a portion of the "present value" of an 

employee annuity and specifically states the amount of either the "present 

value" of the employee annuity or of the award is deemed to give the 

former spouse "a specific dollar amount" that is payable from a monthly 

employee annuity and will be paid as a lump-sum award in accordance 

with § 838.235. 

S)))))))))))))))))))))))))))) 

§ 838.625 Types of 

annuity. 

§ 838.625 Types of annuity. 

(a) Terms that are synonymous with net annuity are-­

(1) Disposable annuity; and 

(2) Retirement check. 

(b) Terms that are synonymous with self-only annuity are-­

(1) Life rate annuity; 

(2) Unreduced annuity; and 

(3) Annuity without survivor benefit. 

(c) All court orders that do not specify net annuity or self-only 

annuity apply to gross annuity. 

S))))))))))))))))))))))))))))))))))))))))))) 

67
 
Retirement Regulations
 

Model Paragraphs
 

MODEL PARAGRAPHS MODEL PARAGRAPHS 

Appendix A to Subpart F 

of Part 

838--Recommended 

Appendix A to Subpart F of Part 838--Recommended Language for 

Court Orders Dividing Employee Annuities. 

Language for Court 

Orders Dividing 

Employee Annuities. 

This appendix provides recommended language for use in court 

orders attempting to divide employee annuity. A court order directed at 

employee annuity should include five elements: 

! Identification of the benefits; 

! Instructions that OPM pay the former spouse; 

! A method for computing the amount of the former spouse's 

benefit; 

! Identification of the type of annuity to which to apply a fraction, 

percentage or formula; and 

! Instructions on what OPM should do if the employee leaves 

Federal service before retirement and applies for a refund of employee 

contributions. 

The court order may also include instructions for disposition of the 

former spouse's share if the former spouse dies before the employee. By 

using the model language, courts will know that the court order will have 

the effect described in this appendix. 

The model language in this appendix does not award a benefit that is 

payable after the death of the employee. A separate, distinct award of a 

former spouse survivor annuity is necessary to award a former spouse a 

benefit that is payable after the death of the employee. Appendix A to 

subpart I of this part contains model language for awarding survivor 

annuities and contains some examples that award both a portion of an 

employee annuity and a survivor annuity. 

The model language uses the terms "[former spouse]" to identify the 

spouse who is receiving a former spouse's portion of an employee annuity 

and "[employee]" to identify the Federal employee whose employment 

was covered by the Civil Service Retirement System or the Federal 

Employees Retirement System. Obviously, in drafting an actual court 

order the appropriate terms, such as "Petitioner" and "Respondent," or 

the names of the parties should replace "[former spouse]" and 

"[employee]." 

Similarly, the models are drafted for employees covered by the 

Civil Service Retirement System. The name of the retirement system 

should be changed for employees covered by the Federal Employees 

Retirement System. 

TABLE OF CONTENTS TABLE OF CONTENTS
 

68
 
Retirement Regulations 

Model Paragraphs 

000 Series--Special Technical Provisions.
 

¶001 Language required in Qualified Domestic Relations Orders.
 

100 Series--Identification of the benefits and instructions that OPM 

pay the former spouse. 

¶101 Identifying retirement benefits and directing OPM to pay the 

former spouse. 

¶102-110 [Reserved]. 

¶111 Protecting a former spouse entitled to military retired pay. 

200 Series--Computing the amount of the former spouse's benefit. 

¶201 Award of a fixed monthly amount.
 

¶202 Award of a percentage.
 

¶203 Award of a fraction.
 

¶204 Award of a prorata share.
 

¶205-210 [Reserved].
 

¶211 Award based on a stated formula.
 

¶212-230 [Reserved].
 

¶231 Awarding COLA's on fixed monthly amounts.
 

¶232 Excluding COLA's on awards other than fixed monthly amounts.
 

300 Series--Type of annuity. 

¶301 Awards based on benefits actually paid. 

¶302-310 [Reserved]. 

¶311 Awards of earned annuity in cases where the actual annuity is based 

on disability. 

400 Series--Refunds of employee contributions. 

¶401 Barring payment of a refund of employee contributions. 

¶402 Dividing a refund of employee contributions. 

500 Series--Death of the former spouse. 

¶501 Full annuity restored to the retiree. 

¶502 Former spouse share paid to children. 

¶503 Former spouse share paid to the court. 

69
 
Retirement Regulations
 

Model Paragraphs
 

000 Series--Special 000 Series--Special Technical Provisions. 

Technical Provisions. 

¶001 Language required ¶001 Language required in Qualified Domestic Relations Orders. 

in Qualified Domestic 

Relations Orders. Using the following paragraph will expressly state that the 

provisions of the court order concerning CSRS or FERS benefits are 

governed by this part. A court order directed at employee annuity (or 

awarding a survivor annuity) that is labelled a "Qualified Domestic 

Relations Order" or is issued on an ERISA form will not be automatically 

rendered unacceptable under § 838.302(a) or § 838.803(a) if the court 

order contains the following paragraph. 

"The court has considered the requirements and standard 

terminology provided in part 838 of Title 5, Code of Federal Regulations. 

The terminology used in the provisions of this order that concern benefits 

under the Civil Service Retirement System are governed by the standard 

conventions established in that part." 

S))))))))))))))))))))))))))))))))))))))))))) 

100 Series--Identification 100 Series--Identification of the benefits and instructions that OPM
 

of the benefits and pay the former spouse.
 

instructions that OPM
 

pay the former spouse.
 

¶101 Identifying ¶101 Identifying retirement benefits and directing OPM to pay the
 

retirement benefits and former spouse.
 

directing OPM to pay the
 

former spouse. Using the following paragraph will expressly divide employee
 

annuity to satisfy the requirements of § 838.303 and direct OPM to pay 

the former spouse a share of an employee annuity to satisfy the 

requirements of § 838.304. 

"[Employee] is (or will be) eligible for retirement benefits under the 

Civil Service Retirement System based on employment with the United 

States Government. [Insert language for computing the former spouse's 

share from 200 series of this appendix.] The United States Office of 

Personnel Management is directed to pay [former spouse]'s share directly 

to [former spouse]." 

S)))))))))))))))))))))))))))) 

¶102-110 [Reserved]. 

70
 
Retirement Regulations
 

Model Paragraphs
 

¶111 Protecting a former ¶111 Protecting a former spouse entitled to military retired pay. 

spouse entitled to military 

retired pay. Using the following paragraph will protect the former spouse 

interest in military retired pay in the event that the employee waives the 

military retired pay to allow crediting the military service under CSRS or 

FERS. The paragraph should be used only if the former spouse is 

awarded a portion of the military retired pay. "If [Employee] waives 

military retired pay to credit military service under the Civil Service 

Retirement System, [insert language for computing the former spouse's 

share from 200 series of this appendix.]. The United States Office of 

Personnel Management is directed to pay [former spouse]'s share directly 

to [former spouse]." 

S))))))))))))))))))))))))))))))))))))))))))) 

200 Series--Computing 200 Series--Computing the amount of the former spouse's benefit. 

the amount of the former 

spouse's benefit. Paragraphs 201 through 204 contain model language for the most 

common types of awards that court orders make to former spouses. 

Subsequent paragraphs in the 200 series contain model language for less 

common, more complex awards. 

Awards other than fixed amounts require that the court order specify 

the type of annuity ("gross," "net," or self-only) on which the award is 

computed. The types of annuity are defined in § 838.103. Variations on 

type of annuity are covered by the 300 series of this appendix. 

¶201 Award of a fixed ¶201 Award of a fixed monthly amount. 

monthly amount. 

Using the following paragraph will award the former spouse a fixed 

monthly amount. OPM will not apply COLA's to a fixed monthly 

amount unless the court order expressly directs that OPM add COLA's 

using the language in ¶231 of this appendix or similar language. 

"[Employee] is (or will be) eligible for retirement benefits under the 

Civil Service Retirement System based on employment with the United 

States Government. [Former spouse] is entitled to $[insert a number] per 

month from [employee]'s civil service retirement benefits. The United 

States Office of Personnel Management is directed to pay [former 

spouse]'s share directly to [former spouse]." 

S)))))))))))))))))))))))))))) 

71
 
Retirement Regulations
 

Model Paragraphs
 

¶202 Award of a ¶202 Award of a percentage. 

percentage. 

Using the following paragraph will award the former spouse a stated 

percentage of the employee annuity. Unless the court order expressly 

directs that OPM not add COLA's to the former spouse's share of the 

employee annuity, OPM will add COLA's to keep the former spouse's 

share at the stated percentage. Paragraph 232 of this appendix provides 

language for excluding COLA's. 

"[Employee] is (or will be) eligible for retirement benefits under the 

Civil Service Retirement System based on employment with the United 

States Government. [Former spouse] is entitled to [insert a number] 

percent of [employee]'s [insert "gross," "net," or "self-only"] monthly 

annuity under the Civil Service Retirement System. The United States 

Office of Personnel Management is directed to pay [former spouse]'s 

share directly to [former spouse]." 

S)))))))))))))))))))))))))))) 

¶203 Award of a 

fraction. 

¶203 Award of a fraction. 

Using the following paragraph will award the former spouse a stated 

fraction of the employee annuity. Unless the court order expressly directs 

that OPM not add COLA's to the former spouse's share of the employee 

annuity, OPM will add COLA's to keep the former spouse's share at the 

stated percentage. Paragraph 232 of this appendix provides language for 

excluding COLA's. 

"[Employee] is (or will be) eligible for retirement benefits under the 

Civil Service Retirement System based on employment with the United 

States Government. [Former spouse] is entitled to [insert fraction]ths of 

[employee]'s [insert "gross," "net," or "self-only"] monthly annuity 

under the Civil Service Retirement System. The United States Office of 

Personnel Management is directed to pay [former spouse]'s share directly 

to [former spouse]." 

S)))))))))))))))))))))))))))) 

¶204 Award of a prorata 

share. 

¶204 Award of a prorata share. 

Using the following paragraph will award the former spouse a 

prorata share of the employee annuity. Prorata share is defined in 

§ 838.621. To award a prorata share the court order must state the date 

of the marriage. Unless the court order specifies a different ending date, 

the marriage ends for computation purposes on the date that the court 

order is filed with the court clerk. Unless the court order expressly 

directs that OPM not add COLA's to the former spouse's share of the 

employee annuity, OPM will add COLA's to keep the former spouse's 

72
 
Retirement Regulations
 

Model Paragraphs
 

share at the stated percentage. Paragraph 232 of this appendix provides 

language for excluding COLA's. 

"[Employee] is (or will be) eligible for retirement benefits under the 

Civil Service Retirement System based on employment with the United 

States Government. [Former spouse] is entitled to a prorata share of 

[employee]'s [insert "gross," "net," or self-only] monthly annuity under 

the Civil Service Retirement System. The marriage began on [insert 

date]. The United States Office of Personnel Management is directed to 

pay [former spouse]'s share directly to [former spouse]." 

S)))))))))))))))))))))))))))) 

¶205-210 [Reserved]. 

¶211 Award based on a ¶211 Award based on a stated formula. 

stated formula. 

Using the following paragraphs will award the former spouse a 

share of the employee annuity based on a formula stated in the court 

order. The formula must be stated in the court order (including a 

court-approved property settlement agreement). The formula may not be 

incorporated by reference to a statutory provision or a court decision in 

another case. If the court order uses a formula, the court order must 

include any data that is necessary for OPM to apply the formula unless 

the necessary data is contained in normal OPM files. 

"[Employee] is (or will be) eligible for retirement benefits under the 

Civil Service Retirement System based on employment with the United 

States Government. [Former spouse] is entitled to a share of 

[employee]'s [insert "gross," "net," or self-only] monthly annuity under 

the Civil Service Retirement System to be computed as follows: "[Insert 

formula for computing the former spouse's share.] 

"The United States Office of Personnel Management is directed to 

pay [former spouse]'s share directly to [former spouse]." 

S)))))))))))))))))))))))))))) 

¶212-230 [Reserved]. 

73
 
Retirement Regulations
 

Model Paragraphs
 

¶231 Awarding COLA's ¶231 Awarding COLA's on fixed monthly amounts. 

on fixed monthly 

amounts. Using the following paragraph will award COLA's in addition to a 

fixed monthly amount to the former spouse. The model awards COLA's 

at the same rate applied to the employee annuity. 

"[Employee] is (or will be) eligible for retirement benefits under the 

Civil Service Retirement System based on employment with the United 

States Government. [Former spouse] is entitled to $[insert a number] per 

month from [employee]'s civil service retirement benefits. When 

COLA's are applied to [employee]'s retirement benefits, the same COLA 

applies to [former spouse]'s share. The United States Office of Personnel 

Management is directed to pay [former spouse]'s share directly to 

[former spouse]." 

S)))))))))))))))))))))))))))) 

¶232 Excluding COLA's ¶232 Excluding COLA's on awards other than fixed monthly 

on awards other than amounts. 

fixed monthly amounts. 

Using the following paragraph will prevent application of COLA's 

to a former spouse's share of an employee annuity in cases where the 

former spouse has been awarded a percentage, fraction or prorata share 

of the employee annuity, rather than a fixed dollar amount. 

"[Employee] is (or will be) eligible for retirement benefits under the 

Civil Service Retirement System based on employment with the United 

States Government. [Insert language for computing the former spouse's 

share from ¶202, ¶203, ¶204, or ¶211 of this appendix.] The United 

States Office of Personnel Management is directed to determine the 

amount of [former spouse]'s share on the date [insert "when [employee] 

retires" if the employee has not retired, or "of this order" if the employee 

is already retired] and not to apply COLA's to that amount. The United 

States Office of Personnel Management is directed to pay [former 

spouse]'s share directly to [former spouse]." 

S))))))))))))))))))))))))))))))))))))))))))) 

300 Series--Type of 300 Series--Type of annuity. 

annuity. 

Awards of employee annuity to a former spouse (other than awards 

of fixed dollar amounts) must specify whether OPM will use the "gross," 

"net," or self-only annuity as defined in § 838.103 in determining the 

amount of the former spouse's entitlement. The court order may contain 

a formula that has the effect of creating other types of annuity, but the 

court order may only do this by providing a formula that starts from 

"gross," "net," or self-only annuity as defined in § 838.103. 

74
 
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Model Paragraphs
 

¶301 Awards based on 

benefits actually paid. 

¶311 Awards of earned 

annuity in cases where the 

actual annuity is based on 

disability. 

¶301 Awards based on benefits actually paid. 

The court order may include a formula that effectively uses the 

court's definition of net annuity rather than the one provided by 

§ 838.103. For example, using the following paragraph will award the 

former spouse a prorata share of the employee annuity reduced only by 

the amount deducted as premiums for basic life insurance under the 

Federal Employee Group Life Insurance Program. 

"[Employee] is (or will be) eligible for retirement benefits under the 

Civil Service Retirement System based on employment with the United 

States Government. [Former spouse] is entitled to a prorata share of 

[employee]'s monthly annuity under the Civil Service Retirement System, 

where monthly annuity means the self-only annuity less the amount 

deducted as premiums for basic life insurance under the Federal 

Employee Group Life Insurance Program. The marriage began on [insert 

date]. The United States Office of Personnel Management is directed to 

pay [former spouse]'s share directly to [former spouse]." 

S)))))))))))))))))))))))))))) 

¶302-310 [Reserved]. 

¶311 Awards of earned annuity in cases where the actual annuity is 

based on disability. 

Using the following paragraph will award a former spouse a prorata 

share of what the employee annuity would have been based on only the 

employee's actual service in cases where the actual employee annuity is 

based on disability. The paragraph also allows the court order to provide 

for the former spouse's share to begin when the employee reaches a 

stated age, using age 62 as an example. As with all other formulas the 

court order must specify whether the computation applies to "gross," 

"net," or self-only annuity. OPM will apply COLA's that occurred after 

the date of the disability retirement to the former spouse's share. The 

following paragraph should be used only for disability retirees under 

CSRS. Under FERS, section 8452 of title 5, United States Code, 

provides a formula for recomputation of disability annuities at age 62 to 

approximate an earned annuity. Therefore to award a portion of the 

"earned" benefit under FERS add the introductory phrase, "Starting when 

[employee] reaches age 62," to the paragraph describing how to compute 

the amount. 

"[Employee] is (or will be) eligible for retirement benefits under the 

Civil Service Retirement System based on employment with the United 

75
 
Retirement Regulations
 

Model Paragraphs
 

State's Government. Starting when [employee] reaches age 62, [former 

spouse] is entitled to a prorata share of [employee]'s [insert "gross," 

"net," or self-only] monthly annuity under the Civil Service Retirement 

System, where monthly annuity means the amount of [employee]'s 

monthly annuity computed as though [employee] had retired on an 

immediate, nondisability annuity on the commencing date of [employee]'s 

annuity based on disability. In computing the amount of the immediate 

annuity, the United States Office of Personnel Management will deem 

[employee] to have been age 62 at the time that [employee] retired on 

disability. The marriage began on [insert date]. The United States Office 

of Personnel Management is directed to pay [former spouse]'s share 

directly to [former spouse]." 

S))))))))))))))))))))))))))))))))))))))))))) 

400 Series--Refunds of 400 Series--Refunds of employee contributions. 

employee contributions. 

Court orders that award a former spouse a portion of a future 

employee annuity of an employee who is not then eligible to retire should 

include an additional paragraph containing instructions that tell OPM what 

to do if the employee separates before becoming eligible to retire and 

requests a refund of employee contributions. The court order may award 

the former spouse a portion of the refund of employee contributions or 

bar payment of the refund of employee contributions. 

¶401 Barring payment of ¶401 Barring payment of a refund of employee contributions. 

a refund of employee 

contributions. Using the following paragraph will bar payment of the refund of 

employee contributions if payment of the refund of employee 

contributions would extinguish the former spouse's entitlement to a 

portion of the employee annuity. "The United States Office of Personnel 

Management is directed not to pay [employee] a refund of employee 

contributions." 

S)))))))))))))))))))))))))))) 

¶402 Dividing a refund of ¶402 Dividing a refund of employee contributions. 

employee contributions. 

Using the following paragraph will allow the refund of employee 

contributions to be paid but will award a prorata share of the refund of 

employee contributions to the former spouse. The sentence on the 

beginning date of the marriage is unnecessary if the beginning is stated 

elsewhere in the order. The award of a prorata share is used only as an 

example; the court order could provide another fraction, percentage, or 

formula, or a fixed amount. Note that a refund of employee contributions 

voids the employee's rights to an employee annuity and the former 

spouse's right to any portion of that annuity. 

76
 
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Model Paragraphs
 

"If [employee] becomes eligible and applies for a refund of 

employee contributions, [former spouse] is entitled to a prorata share of 

the refund of employee contributions. The marriage began on [insert 

date]. The United States Office of Personnel Management is directed to 

pay [former spouse]'s share directly to [former spouse]." 

S))))))))))))))))))))))))))))))))))))))))))) 

500 Series--Death of the 

former spouse. 

500 Series--Death of the former spouse. 

¶501 Full annuity 

restored to the retiree. 

¶501 Full annuity restored to the retiree. 

No special provision is necessary to restore the entire annuity to the 

retiree upon the death of the former spouse. Unless the court order 

expressly provides otherwise, OPM will pay the former spouse's share to 

the retiree after the death of the former spouse. 

S)))))))))))))))))))))))))))) 

¶502 Former spouse 

share paid to children. 

¶502 Former spouse share paid to children. 

Using the following paragraph will award the former spouse's share 

of an employee annuity to the children, including any adopted children, of 

the employee and former spouse. 

"If [former spouse] dies before [employee], the United States Office 

of Personnel Management is directed to pay [former spouse]'s share of 

[employee]'s civil service retirement benefits to surviving children of the 

marriage including any adopted children, in equal shares. Upon the death 

of any child, that child's share will be distributed among the other 

surviving children." 

The language may be modified to terminate the payments to the 

children when they reach a stated age. A court order that includes such a 

provision for termination must include sufficient information (such as the 

children's dates of birth) to permit OPM to determine when the children's 

interest terminate. OPM will not consider evidence outside the court 

order (and normal OPM files) to establish the children's dates of birth. 

S)))))))))))))))))))))))))))) 

¶503 Former spouse 

share paid to the court. 

¶503 Former spouse share paid to the court. 

Using the following paragraph will provide for payment of the 

former spouse's share of an employee annuity to the court after the death 

of the former spouse. This would allow a court officer to administer the 

funds. "If [former spouse] dies before [employee], the United States 

Office of Personnel Management is directed to pay [former spouse]'s 

77
 
Retirement Regulations
 

Model Paragraphs
 

share of [employee]'s civil service retirement benefits to this court at the 

following address: "[Insert address where checks should be sent. The 

address may be up to six lines and should include sufficient information 

for court officials to credit the correct account.]" 

S))))))))))))))))))))))))))))))))))))))))))) 

78
 
Retirement Regulations
 

Procedures for Processing Court Orders Awarding
 

Former Spouse Survivor Annuities
 

Subpart G--Procedures 

for Processing Court 

Orders Awarding Former 

Spouse Survivor 

Annuities 

Subpart G--Procedures for Processing Court Orders Awarding 

Former Spouse Survivor Annuities 

REGULATORY 

STRUCTURE 

REGULATORY STRUCTURE 

§ 838.701 Purpose and 

scope. 

§ 838.701 Purpose and scope. 

(a) This subpart regulates the procedures that the Office of 

Personnel Management will follow upon the receipt of claims arising out 

of State court orders awarding former spouse survivor annuities under 

CSRS or FERS (including the FERS basic employee death benefit as 

defined in § 843.602 of this chapter). OPM must comply with qualifying 

court orders, decrees, or court-approved property settlements in 

connection with divorces, annulments of marriages, or legal separations 

of employees or retirees that award former spouse survivor annuities. 

(b) This subpart prescribes-­

(1) The commencing and terminating dates of former spouse 

survivor annuities based on court orders acceptable for processing; and 

(2) The procedures that a former spouse must follow when applying 

for a former spouse survivor annuity based on a court order under section 

8341(h) or section 8445 of title 5, United States Code. 

(c)(1) Subpart H of this part contains the rules that a court order 

must satisfy to be a court order acceptable for processing to award a 

former spouse survivor annuity. 

(2) Subpart I of this part contains definitions that OPM uses to 

determine the effect of a court order in connection with a former spouse 

survivor annuity. 

S))))))))))))))))))))))))))))))))))))))))))) 

79
 
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Procedures for Processing Court Orders Awarding
 

Former Spouse Survivor Annuities
 

LIMITATIONS ON LIMITATIONS ON SURVIVOR ANNUITIES 

SURVIVOR ANNUITIES 

§ 838.711 Maximum § 838.711 Maximum former spouse survivor annuity. 

former spouse survivor 

annuity. (a) Under CSRS, payments under a court order may not exceed the 

amount provided in § 831.614 of this chapter. 

(b) Under FERS, payments under a court order may not exceed 

amount provided in § 842.613 of this chapter plus the basic employee 

death benefit as defined in § 843.102 of this chapter. 

S))))))))))))))))))))))))))))))))))))))))))) 

APPLICATION AND APPLICATION AND PROCESSING PROCEDURES 

PROCESSING 

PROCEDURES 

§ 838.721 Application § 838.721 Application requirements. 

requirements. 

(a)(1) A former spouse (personally or through a representative) must 

apply in writing to be eligible for a former spouse survivor annuity based 

on a court order acceptable for processing. No special form is required 

to give OPM notice of the court order. 

(2) OPM may require an additional application after the death of the 

employee, separated employee, or retiree. This additional application 

will be on a form prescribed by OPM. 

(b)(1) The application letter under paragraph (a)(1) of this section 

must be accompanied by-­

(i) A certified copy of the court order; 

(ii) A certification from the former spouse or the former spouse's 

representative that the court order is currently in force and has not been 

amended, superseded, or set aside; 

(iii) Information sufficient for OPM to identify the employee or 

retiree, such as his or her full name, CSRS or FERS claim number, date 

of birth, and social security number; 

(iv) The current mailing address of the former spouse; 

(v) If the employee has not retired or died, the mailing address of 

the employee; and 

80
 
Retirement Regulations
 

Procedures for Processing Court Orders Awarding
 

Former Spouse Survivor Annuities
 

§ 838.722 OPM action on 

receipt of a court order 

acceptable for processing. 

(vi) A statement in the form prescribed by OPM certifying-­

(A) That the former spouse has not remarried before age 55; 

(B) That the former spouse will notify OPM within 15 calendar days 

of the occurrence of any remarriage before age 55; and 

(C) That the former spouse will be personally liable for any 

overpayment to him or her resulting from a remarriage before age 55. 

(2) OPM may subsequently require recertification of the statements 

required by this paragraph. 

S)))))))))))))))))))))))))))) 

§ 838.722 OPM action on receipt of a court order acceptable for 

processing. 

(a) If OPM receives a court order acceptable for processing that 

awards a former spouse survivor annuity based on the service of a living 

retiree, OPM will inform-­

(1) The former spouse-­

(i) That the court order is acceptable for processing; 

(ii) Of the date on which OPM received the court order; and 

(iii) Of the present amount of the monthly former spouse survivor 

annuity if the retiree were to die immediately and the formula OPM used 

to compute the monthly benefit; and 

(2) The retiree-­

(i) That the former spouse has applied for benefits under this 

subpart; 

(ii) That the court order is acceptable for processing and that OPM 

must comply with the court order; 

(iii) Of the date on which OPM received the court order; 

(iv) Of the amount and commencing date of the reduction in the 

retiree's annuity; 

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Procedures for Processing Court Orders Awarding
 

Former Spouse Survivor Annuities
 

(v) Of the present amount of the monthly former spouse survivor 

annuity if the retiree were to die immediately and the formula OPM used 

to compute the amount of the former spouse survivor annuity; and 

(vi) That, if he or she contests the validity of the court order, he or 

she must obtain, and submit to OPM, a court order invalidating the court 

order submitted by the former spouse. 

(b) If OPM receives a court order acceptable for processing that 

awards a former spouse survivor annuity, but the employee, separated 

employee, or retiree has died, OPM will inform-­

(1) The former spouse-­

(i) That the court order is acceptable for processing; 

(ii) Of the date on which OPM received the court order, the date on 

which the former spouse's benefit will begin to accrue, and if known the 

date on which OPM will commence payment under the court order; and 

(iii) Of the amount on the monthly former spouse survivor annuity 

and the formula OPM used to compute the former spouse survivor 

annuity. 

(2) Anyone whom OPM knows will be adversely affected by the 

court order-­

(i) That the former spouse has applied for benefits under this 

subpart; 

(ii) That the court order is acceptable for processing and that OPM 

must comply with the court order; 

(iii) Of the date on which OPM received the court order; 

(iv) How the court order may adversely affect him or her; and 

(v) That, if he or she contests the validity of the court order, he or 

she must obtain, and submit to OPM, a court order invalidating the court 

order submitted by the former spouse. 

(c) If OPM receives a court order acceptable for processing that 

awards a former spouse survivor annuity and the employee or separated 

employee has not retired or died, OPM will attempt to inform-­

(1) The former spouse-­

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Procedures for Processing Court Orders Awarding
 

Former Spouse Survivor Annuities
 

(i) That the court order is acceptable for processing; 

(ii) To the extent possible, the formula that OPM will use to 

compute the former spouse survivor annuity (including the FERS basic 

employee death benefit as defined in § 843.602 of this chapter, if 

applicable); and 

(iii) That, if he or she disagrees with the formula, he or she must 

obtain, and submit to OPM, an amended court order clarifying the 

amount before the employee or separated employee retires or dies; and 

(2) The employee or separated employee-­

(i) That the former spouse has applied for benefits under this 

subpart; 

(ii) That the court order is acceptable for processing and that OPM 

must comply with the court order; 

(iii) To the extent possible, the formula that OPM will use to 

compute the former spouse survivor annuity (including the FERS basic 

employee death benefit as defined in § 843.602 of this chapter, if 

applicable); and 

(iv) That, if he or she-­

(A) Contests the validity of the court order, he or she must obtain, 

and submit to OPM, a court order invalidating the court order submitted 

by the former spouse; or 

(B) Disagrees with the formula, he or she must obtain, and submit 

to OPM, an amended court order clarifying the amount before he or she 

retires or dies. 

(d) The failure of OPM to provide, or of the employee, separated 

employee, or retiree, the former spouse, or anyone else to receive, the 

information specified in this section does not affect-­

(1) The validity of payment under the court order; or 

(2) The commencing date of the reduction in the employee annuity 

or the commencing date of the former spouse's entitlement as determined 

under § 838.731. 

S)))))))))))))))))))))))))))) 

83
 
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Procedures for Processing Court Orders Awarding
 

Former Spouse Survivor Annuities
 

§ 838.723 OPM action on 

receipt of a court order 

not acceptable for 

processing. 

§ 838.724 Contesting the 

validity of court orders. 

§ 838.725 Effect on 

employee and retiree 

election rights. 

§ 838.723 OPM action on receipt of a court order not acceptable for 

processing. 

If OPM receives an application from a former spouse not based on a 

court order acceptable for processing, OPM will inform the former 

spouse that OPM cannot approve the application and provide the specific 

reason(s) for disapproving the application. Examples of reasons for 

disapproving an application include that the order does not meet the 

definition of court order in § 838.103 or does not meet one or more of the 

requirements of subpart H of this part. 

S)))))))))))))))))))))))))))) 

§ 838.724 Contesting the validity of court orders. 

(a) An employee, retiree or person adversely affected by a court 

order who alleges that a court order is invalid must prove the invalidity of 

the court order by submitting to OPM a court order that-­

(1) Declares invalid the court order submitted by the former spouse; 

or 

(2) Sets aside the court order submitted by the former spouse. 

(b) OPM must honor a court order acceptable for processing that 

appears to be valid and that the former spouse has certified is currently in 

force and has not been amended, superseded, or set aside, until the 

employee, separated employee, retiree, or person adversely affected by 

the court order submits to OPM a court order described in paragraph (a) 

of this section or, if issued before the retirement or death of the employee 

or separated employee, a court order acceptable for processing amending 

or superseding the court order submitted by the former spouse. 

S)))))))))))))))))))))))))))) 

§ 838.725 Effect on employee and retiree election rights. 

(a) A court order acceptable for processing that awards a former 

spouse survivor annuity does not affect a retiring employee's or retiree's 

rights and obligations to make survivor elections under subpart F of part 

831 of this chapter or subpart F of part 842 of this chapter. 

(b) A court order acceptable for processing that awards a former 

spouse survivor annuity requires OPM to pay a former spouse survivor 

annuity and prevents OPM from paying an elected survivor benefit to a 

widow or widower or another former spouse if the election is inconsistent 

with the court order. 

84
 
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Procedures for Processing Court Orders Awarding
 

Former Spouse Survivor Annuities
 

S)))))))))))))))))))))))))))))))))))))))))))
 

PAYMENT 

PROCEDURES 

PAYMENT PROCEDURES 

§ 838.731 Commencing 

date of payments. 

§ 838.731 Commencing date of payments. 

(a) A former spouse survivor annuity based on a court order 

acceptable for processing begins to accrue in accordance with the terms 

of the court order but no earlier than the later of-­

(1) The first day after the date of death of the employee, separated 

employee, or retiree; or 

(2) The first day of the second month after OPM receives a copy of 

the court order acceptable for processing. 

(b) OPM will not authorize payment of the former spouse survivor 

annuity until it receives an application and supporting documentation 

required under § 838.721. 

S)))))))))))))))))))))))))))) 

§ 838.732 Termination of 

entitlement. 

§ 838.732 Termination of entitlement. 

(a) A former spouse survivor annuity (other than the FERS basic 

employee death benefit as defined in § 843.602 of this chapter) or the 

right to a future former spouse survivor annuity based on a court order 

acceptable for processing terminates in accordance with the terms of the 

court order but no later than the last day of the month before the former 

spouse remarries before age 55 or dies. 

(b) If the employee dies before the former spouse remarries before 

age 55 or dies, the former spouse's entitlement to the FERS basic 

employee death benefit as defined in § 843.602 of this chapter based on a 

court order acceptable for processing terminates in accordance with the 

terms of the court order. 

S)))))))))))))))))))))))))))) 

§ 838.733 Rights of 

current and other former 

spouses after termination 

of a former spouse's 

entitlement. 

§ 838.733 Rights of current and other former spouses after 

termination of a former spouse's entitlement. 

(a) If a former spouse of a retiree loses entitlement to a former 

spouse survivor annuity based on a court order acceptable for processing 

while the retiree is living and-­

85
 
Retirement Regulations
 

Procedures for Processing Court Orders Awarding
 

Former Spouse Survivor Annuities
 

(1) If court orders acceptable for processing award former spouse 

survivor annuities to other former spouses, OPM will continue the 

reduction to comply with court orders in the order specified in § 838.135; 

(2) If paragraph (a)(1) of this section does not obligate the entire 

entitlement lost by the former spouse, OPM will continue the reduction to 

provide a current spouse survivor annuity or a former spouse survivor 

annuity based on a timely-filed election under § 831.604, § 831.605, 

§ 831.612, § 831.613, § 842.603, § 842.604, § 842.611, or § 842.612 of 

this chapter; or 

(3) If paragraphs (a)(1) and (a)(2) of this section do not obligate the 

entire entitlement lost by the former spouse, the retiree (except a retiree 

under CSRS who retired before May 7, 1985 and who remarried before 

February 27, 1986) may elect within 2 years after the former spouse loses 

entitlement to continue the reduction to provide a survivor annuity for a 

spouse acquired after retirement. 

(b)(1) If a former spouse of an employee or retiree loses entitlement 

to a former spouse survivor annuity based on a court order acceptable for 

processing after the death of the employee or retiree and-­

(i) If court orders acceptable for processing award former spouse 

survivor annuities to other former spouses, OPM will pay the next 

entitled former spouse in the order specified in § 838.135; or 

(ii) If paragraph (b)(1) of this section does not obligate the entire 

entitlement lost by the former spouse, OPM will pay the balance to a 

current spouse of the deceased-­

(A) Retiree who had elected a reduced annuity to provide a current 

spouse annuity (as defined in § 831.603 or § 842.602); or 

(B) Employee. 

(2) Except as provided in § 838.734-­

(i) The former spouse survivor annuity based on paragraph (b)(1)(i) 

of this section begins to accrue in accordance with the terms of the court 

order but no earlier than the later of-­

(A) The first day of the month in which the former spouse with the 

earlier-issued court order loses entitlement; or 

(B) The first day of the second month after OPM receives a copy of 

the court order acceptable for processing; or 

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Procedures for Processing Court Orders Awarding
 

Former Spouse Survivor Annuities
 

(ii) The current spouse annuity under paragraph (b)(1)(ii) of this 

section begins to accrue on the first day of the month in which the former 

spouse loses entitlement. 

(c) OPM will not authorize payment of the former spouse survivor 

annuity until it receives an application and supporting documentation 

required under § 838.721. 

S)))))))))))))))))))))))))))) 

§ 838.734 Payment of § 838.734 Payment of lump-sum awards by survivor annuity. 

lump-sum awards by 

survivor annuity. OPM will not honor court orders awarding lump-sum payments 

(other than the FERS basic employee death benefit as defined in 

§ 843.602 of this chapter) to a former spouse upon the death of an 

employee or retiree. 

S)))))))))))))))))))))))))))) 

§ 838.735 Cost-of-living § 838.735 Cost-of-living adjustments. 

adjustments. 

(a) OPM applies cost-of-living adjustments to all former spouse 

survivor annuities in pay status at the time of the adjustment and in the 

amount provided by Federal statute. 

(b) OPM will not honor provisions of a court order that alters the 

time or amount of cost-of-living adjustments or that attempts to prevent 

OPM from applying cost-of-living adjustments to a former spouse 

survivor annuity in pay status. 

S))))))))))))))))))))))))))))))))))))))))))) 

87
 
Retirement Regulations
 

Requirements for Court Orders Awarding
 

Former Spouse Survivor Annuities
 

Subpart H-­

Requirements for Court 

Orders Awarding Former 

Spouse Survivor 

Annuities 

Subpart H--Requirements for Court Orders Awarding Former 

Spouse Survivor Annuities 

§ 838.801 Purpose and § 838.801 Purpose and scope. 

scope. 

This subpart regulates the requirements that a court order awarding 

a former spouse survivor annuity must meet to be a court order 

acceptable for processing. 

S)))))))))))))))))))))))))))) 

§ 838.802 CSRS 

limitations. 

§ 838.802 CSRS limitations. 

(a) A court order awarding a former spouse survivor annuity under 

CSRS is not a court order acceptable for processing unless the marriage 

terminated on or after May 7, 1985. 

(b) In the case of a retiree who retired under CSRS before May 7, 

1985, a court order awarding a former spouse survivor annuity under 

CSRS is not a court order acceptable for processing unless the retiree was 

receiving a reduced annuity to provide a survivor annuity to benefit that 

spouse on May 7, 1985. 

S)))))))))))))))))))))))))))) 

§ 838.803 Language not 

acceptable for processing. 

§ 838.803 Language not acceptable for processing. 

Qualifying Domestic 

Relations Orders. 

(a) Qualifying Domestic Relations Orders. (1) Any court order 

labeled as a "qualified domestic relations order" or issued on a form for 

ERISA qualified domestic relations orders is not a court order acceptable 

for processing unless the court order expressly states that the provisions 

of the court order concerning CSRS or FERS benefits are governed by 

this part. 

(2) When a court order is required by paragraph (a)(1) of this 

section to state that the provisions of a court order concerning CSRS or 

FERS benefits are governed by this part the court order must-­

(i) Expressly refer to part 838 of Title 5, Code of Federal 

Regulations, and 

(ii) Expressly state that the provisions of the court order concerning 

CSRS or FERS benefits are drafted in accordance with the terminology 

used in this part. 

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Requirements for Court Orders Awarding
 

Former Spouse Survivor Annuities
 

Employee annuity cannot 

continue after the death of 

the retiree. 

§ 838.804 Court orders 

must expressly award a 

former spouse survivor 

annuity or expressly 

direct an employee or 

retiree to elect to provide 

a former spouse survivor 

annuity. 

(3) Although any language satisfying the requirement of paragraph 

(a)(2) of this section is sufficient to prevent a court order from being 

unacceptable under paragraph (a)(1) of this section, OPM recommends 

the use of the language provided in ¶001 in appendix A to subpart F of 

this part to state that the provisions of the court order concerning CSRS 

or FERS benefits are governed by this part. 

(4) A court order directed at employee annuity that contains the 

language described in paragraph (a)(2) of this section must also satisfy all 

other requirements of this subpart to be a court order acceptable for 

processing. 

(b) Employee annuity cannot continue after the death of the retiree. 

Any court order that provides that the former spouse's portion of the 

employee annuity shall continue after the death of the employee or 

retiree, by using language such as "will continue to receive benefits after 

the death of" the employee, that the former spouse "will continue to 

receive benefits for his (or her) lifetime," or "that benefits will continue 

after the death of" the employee, but does not use terms such as "survivor 

annuity," "death benefits," "former spouse annuity," or similar terms is 

not a court order acceptable for processing. 

S)))))))))))))))))))))))))))) 

§ 838.804 Court orders must expressly award a former spouse 

survivor annuity or expressly direct an employee or retiree to 

elect to provide a former spouse survivor annuity. 

(a) A court order awarding a former spouse survivor annuity is not a 

court order acceptable for processing unless it expressly awards a former 

spouse survivor annuity or expressly directs an employee or retiree to 

elect to provide a former spouse survivor annuity as described in 

paragraph (b) of this section. 

(b) To expressly award a former spouse survivor annuity or 

expressly direct an employee or retiree to elect to provide a former 

spouse survivor annuity as required by paragraph (a) of this section the 

court order must-­

(1) Identify the retirement system using terms that are sufficient to 

identify the retirement system as explained in § 838.911; and 

(2)(i) Expressly state that the former spouse is entitled to a former 

spouse survivor annuity using terms that are sufficient to identify the 

survivor annuity as explained in § 838.912; or 

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Retirement Regulations
 

Requirements for Court Orders Awarding
 

Former Spouse Survivor Annuities
 

§ 838.805 OPM 

computation of formulas 

in computing the 

designated base. 

§ 838.806 Amended court 

orders. 

(ii) Expressly direct the retiree to elect to provide a former spouse 

survivor annuity using terms that are sufficient to identify the survivor 

annuity as explained in § 838.912. 

S)))))))))))))))))))))))))))) 

§ 838.805 OPM computation of formulas in computing the 

designated base. 

(a) A court order awarding a former spouse survivor annuity is not a 

court order acceptable for processing unless the court order provides 

sufficient instructions and information so that OPM can determine the 

amount of the former spouse's monthly benefit using only the express 

language of the court order, subparts A, G and I of this part, and 

information from normal OPM files. 

(b) To provide sufficient instructions and information for OPM to 

compute the amount of a former spouse survivor annuity as required by 

paragraph (a) of this section, if the court order uses a formula to 

determine the former spouse survivor annuity, it must not use any 

variables whose values are not readily ascertainable from the face of the 

court order or normal OPM files. 

(c) A court order awarding a former spouse survivor annuity is not a 

court order acceptable for processing if OPM would have to examine a 

State statute or court decision (on a different case) to understand, 

establish, or evaluate the formula for computing the former spouse 

survivor annuity. 

S)))))))))))))))))))))))))))) 

§ 838.806 Amended court orders. 

(a) A court order awarding a former spouse survivor annuity is not a 

court order acceptable for processing if it is issued after the date of 

retirement or death of the employee and modifies or replaces the first 

order dividing the marital property of the employee or retiree and the 

former spouse. 

(b) 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 survivor annuity, the court order must be-­

(1) Issued on a day prior to the date of retirement or date of death of 

the employee; or 

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Requirements for Court Orders Awarding
 

Former Spouse Survivor Annuities
 

(2) The first order dividing the marital property of the retiree and 

the former spouse. 

(c) A court order that awards a former spouse survivor annuity and 

that is issued after the first order dividing the marital property of the 

retiree and the former spouse has been vacated, set aside, or otherwise 

declared invalid is not a court order acceptable for processing if-­

(1) It is issued after the date of retirement or death of the retiree; 

(2) It changes any provision concerning a former spouse survivor 

annuity in the court order that was vacated, set aside or otherwise 

declared invalid; and 

(3)(i) The court order is effective prior to the date when it is issued; 

or 

(ii) The retiree and former spouse do not compensate the Civil 

Service Retirement and Disability Fund for any uncollected annuity 

reduction due as a result of the court order vacating, setting aside, or 

otherwise invalidating the first order terminating the marital relationship 

between the retiree and the former spouse. 

(d) In this section, "date of retirement" means the later of-­

(1) The date that the employee files an application for retirement; or 

(2) The effective commencing date for the employee's annuity. 

(e) In 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). 

(f)(1) In this section, the "first order dividing the marital property of 

the retiree and the former spouse" means-­

(i) 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 

(ii) 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 

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Former Spouse Survivor Annuities
 

property) if no marital property has been divided prior to the issuance of 

that order. 

(2) The first order dividing marital property does not include-­

(i) 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 

(ii) 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. 

S)))))))))))))))))))))))))))) 

§ 838.807 Cost must be § 838.807 Cost must be paid by annuity reduction. 

paid by annuity 

reduction. (a) A court order awarding a former spouse survivor annuity is not a 

court order acceptable for processing unless it permits OPM to collect the 

annuity reduction required by section 8339(j)(4) or section 8419 of title 5, 

United States Code, from annuity paid by OPM. OPM will not honor a 

court order that provides for the retiree or former spouse to pay OPM the 

amount of the annuity reduction by any other means. 

(b) The amount of the annuity reduction required by section 

8339(j)(4) or section 8419 of title 5, United States Code, may be paid-­

(1) By reduction of the former spouse's entitlement under a court 

order acceptable for processing that is directed at employee annuity; or 

(2) By reduction of the employee annuity. 

(c) Unless the court order otherwise directs, OPM will collect the 

annuity reduction required by section 8339(j)(4) or section 8419 of title 5, 

United States Code, from the employee annuity. 

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92
 
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Terminology Used in Court Orders Awarding
 

Former Spouse Survivor Annuities
 

Subpart I--Terminology 

Used in Court Orders 

Awarding Former Spouse 

Survivor Annuities 

Subpart I--Terminology Used in Court Orders Awarding Former 

Spouse Survivor Annuities 

REGULATORY 

STRUCTURE 

REGULATORY STRUCTURE 

§ 838.901 Purpose and 

scope. 

§ 838.901 Purpose and scope. 

(a) This subpart regulates the meaning of terms necessary to award 

a former spouse survivor annuity in a court order, and for OPM to 

determine whether a court order awarding a former spouse survivor 

annuity is a court order acceptable for processing and the amount of the 

former spouse survivor annuity. 

(b)(1) This subpart establishes a uniform meaning to be used for 

terms and phrases frequently used in awarding a former spouse survivor 

annuity. 

(2) This subpart informs the legal community about the definition to 

be applied to terms used in court orders, to permit the resulting orders to 

be more carefully drafted, using the proper language to accomplish the 

aims of the court. 

(c)(1) To assist attorneys and courts in preparing court orders that 

OPM can honor in the manner that the court intends, Appendix A of this 

subpart contains model language to accomplish many of the more 

common objectives associated with the award of a former spouse survivor 

annuity. 

(2) By using the language in Appendix A of this subpart, the court, 

attorneys, and parties will know that the court order will be acceptable for 

processing and that OPM will treat the terminology used in the court 

order in the manner stated in the Appendix. 

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Former Spouse Survivor Annuities
 

IDENTIFICATION OF IDENTIFICATION OF BENEFITS 

BENEFITS 

§ 838.911 Identifying the 

retirement system. 

§ 838.911 Identifying the retirement system. 

(a) To satisfy the requirements of § 838.804(b)(1), a court order 

must contain language identifying the retirement system affected. For 

example, "CSRS," "FERS," "OPM," or "Federal Government" survivor 

benefits, or "survivor benefits payable based on service with the U.S. 

Department of Agriculture," etc., are sufficient identification of the 

retirement system. 

(b) Except as provided in paragraphs (b)(1) and (b)(2) of this 

section, language referring to benefits under another retirement system, 

such as military retired pay, Foreign Service retirement benefits and 

Central Intelligence Agency retirement benefits, does not satisfy the 

requirements of § 838.804(b)(1). 

(1) A court order that mistakenly labels CSRS benefits as FERS 

benefits and vice versa satisfies the requirements of § 838.804(b)(1). 

(2) Unless the court order expressly provides otherwise, for 

employees transferring to FERS, court orders directed at CSRS benefits 

apply to the entire FERS basic benefit, including the CSRS component, if 

any. Such a court order satisfies the requirements of § 838.804(b)(1). 

(c) A court order affecting military retired pay, even when military 

retired pay has been waived for inclusion in CSRS annuities, does not 

award a former spouse survivor annuity under CSRS or FERS. Such a 

court order does not satisfy the requirements of § 838.804(b)(1). 

(d) A court order that requires an employee or retiree to maintain 

survivor benefits covering the former spouse satisfies the requirements of 

§ 838.804(b)(1), if the former spouse was covered by a CSRS or FERS 

survivor annuity or the FERS basic employee death benefit as defined in 

§ 843.602 of this chapter at the time of the divorce. 

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§ 838.912 Specifying an 

award of a former spouse 

survivor annuity. 

§ 838.912 Specifying an award of a former spouse survivor annuity. 

(a) To satisfy the requirements of § 838.804(b)(2), a court order 

must specify that it is awarding a former spouse survivor annuity. The 

court order must contain language such as "survivor annuity," "death 

benefits," "former spouse survivor annuity under 5 U.S.C. 8341(h)(1)," 

etc. 

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(b)(1) A court order that provides that the former spouse is to 

"continue as" or "be named as" the beneficiary of CSRS survivor benefits 

or similar language satisfies the requirements of § 838.804(b)(2). 

(2) A court order that requires an employee or retiree to maintain 

survivor benefits covering the former spouse satisfies the requirements of 

§ 838.804(b)(2), if the former spouse was covered by a CSRS or FERS 

survivor annuity or the FERS basic employee death benefit as defined in 

§ 843.602 of this chapter at the time of the divorce. 

(c) Two types of potential survivor annuities may be provided by 

retiring employees to cover former spouses. Under CSRS, section 

8341(h) of title 5, United States Code, provides for "former spouse 

survivor annuities" and section 8339(k) of title 5, United States Code, 

provides for "insurable interest annuities." These are distinct benefits, 

each with its own advantages. The corresponding FERS provisions are 

sections 8445 and 8444, respectively. 

(1) OPM will enforce court orders to provide section 8341(h) or 

section 8445 annuities. These annuities are less expensive and have fewer 

restrictions than insurable interest annuities but the former spouse's 

interest will automatically terminate upon remarriage before age 55. To 

provide a section 8341(h) or section 8445 annuity, the court order must 

use terms such as "former spouse survivor annuity," "section 8341(h) 

annuity," or "survivor annuity." 

(2) OPM cannot enforce court orders to provide "insurable interest 

annuities" under section 8339(k) or section 8444. These annuities may 

only be elected at the time of retirement by a retiring employee who is not 

retiring under the disability provision of the law and who is in good 

health. The retiree may also elect to cancel the insurable interest annuity 

to provide a survivor annuity for a spouse acquired after retirement. The 

parties might seek to provide this type of annuity interest if the 

nonemployee spouse expects to remarry before age 55, if the employee 

expects to remarry a younger second spouse before retirement, or if 

another former spouse has already been awarded a section 8341(h) 

annuity. However, the court will have to provide its own remedy if the 

employee is not eligible for or does not make the election. OPM cannot 

enforce the court order. Language including the words "insurable 

interest" or referring to section 8339(k) or section 8444 does not satisfy 

the requirements of § 838.804(b)(2). 

(3) In court orders which contain internal contradictions about the 

type of annuity, such as "insurable interest annuity under section 

8341(h)," the section reference will control. 

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Former Spouse Survivor Annuities
 

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COMPUTATION OF 

BENEFIT 

COMPUTATION OF BENEFIT 

§ 838.921 Determining 

the amount of a former 

spouse survivor annuity. 

§ 838.921 Determining the amount of a former spouse survivor 

annuity. 

(a) A court order that contains no provision stating the amount of the 

former spouse survivor annuity provides the maximum former spouse 

survivor annuity permitted under § 831.614 or § 842.613 of this chapter 

and satisfies the requirements of § 838.805. 

(b)(1) A court order that provides that "a former spouse will keep" 

or "an employee or retiree will maintain" the survivor annuity to which 

he or she was entitled at the time of the divorce satisfies the requirements 

of § 838.805 and provides a former spouse survivor annuity in the same 

proportion to the maximum survivor annuity under § 831.614 or 

§ 842.613 of this chapter as the former spouse had at the time of divorce. 

For example, a former spouse of an employee would be entitled to the 

maximum survivor benefit; a former spouse of a retiree (who was 

married to the retiree at retirement and continuously until the divorce 

resulting in the court order) would be entitled to the survivor benefit 

elected at retirement. 

(2) If, at the time of divorce, the employee covered by FERS had at 

least 18 months of civilian service creditable under FERS but less than 10 

years of service creditable under FERS, a former spouse with a court 

order described in paragraph (b)(1) or paragraph (b)(2) of this section 

may be entitled to the basic employee death benefit as defined in 

§ 843.602 of this chapter, but is not entitled to any other former spouse 

survivor annuity based on the court order. 

(c)(1) A court order that awards a former spouse survivor annuity of 

less than $12 per year satisfies the requirements of § 838.805 and 

provides an initial rate of $1 per month plus all cost-of-living increases 

occurring after the later of-­

(i) The date of the court order; or 

(ii) The date when the employee retires. 

(2) The reduction in the employee annuity will be computed as 

though the court order provided a former spouse survivor annuity of $1 

per month. 

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Former Spouse Survivor Annuities
 

§ 838.922 Prorata share 

defined. 

(d)(1) A court order that awards a former spouse survivor annuity 

while authorizing the employee or retiree to elect a lesser former spouse 

survivor annuity upon the employee's or retiree's remarriage satisfies the 

requirements of § 838.805, and provides the former spouse survivor 

annuity at the rate initially provided in the court order but does not allow 

the employee or retiree to elect a lesser benefit for the former spouse. 

(2) To provide full survivor annuity benefits to a former spouse 

while authorizing the employee or retiree to elect a lesser former spouse 

survivor annuity benefit in order to provide survivor annuity benefits for a 

subsequent spouse, the court order must provide for a reduction in the 

former spouse survivor annuity upon the employee's or retiree's election 

of survivor annuity benefits for a subsequent spouse. 

(3) A reduction in the amount of survivor benefits provided to the 

former spouse does not satisfy the requirements of § 838.805 if it is 

contingent upon the employee's or annuitant's remarriage rather than his 

or her election of survivor annuity benefits for a subsequent spouse. 

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§ 838.922 Prorata share defined. 

(a) "Prorata share" means the fraction of the maximum survivor 

annuity allowable under § 831.614 or § 842.613 of this chapter whose 

numerator is the number of months of Federal civilian and military 

service that the employee performed during the marriage and whose 

denominator is the total number of months of Federal civilian and military 

service performed by the employee. 

(b) A court order that awards a former spouse a "prorata share" of a 

survivor annuity by using that term and identifying the date when the 

marriage began satisfies the requirements of § 838.805 and awards the 

former spouse a former spouse survivor annuity equal to the prorata share 

as defined in paragraph (a) of this section. 

(c) A court order that awards a portion of a survivor annuity, as of a 

specified date before the employee's retirement, awards the former 

spouse a former spouse survivor annuity equal to the prorata share as 

defined in paragraph (a) of this section. 

(d) A court order that awards a portion of the "value" of a survivor 

annuity as of a specific date before retirement, without specifying what 

"value" is, awards the former spouse a former spouse survivor annuity 

equal to a prorata share as defined in paragraph (a) of this section. 

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Terminology Used in Court Orders Awarding
 

Former Spouse Survivor Annuities
 

§ 838.923 Cost-of-living § 838.923 Cost-of-living adjustment before the death of a retiree. 

adjustment before the 

death of a retiree. A court order that awards a former spouse survivor annuity is 

deemed to order OPM to add to the survivor annuity rate cost-of-living 

adjustments that occur before the death of a retiree (in the same manner 

as these adjustments are applied to the survivor rate generally) unless the 

court order contains an instruction expressly directing OPM not to add 

these adjustments to the survivor annuity rate. (See § 838.735 for 

information concerning cost-of-living adjustments after the death of an 

employee or retiree.) 

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MISCELLANEOUS MISCELLANEOUS PROVISIONS 

PROVISIONS 

§ 838.931 Court orders § 838.931 Court orders that provide temporary awards of former 

that provide temporary spouse survivor annuities. 

awards of former spouse 

survivor annuities. A provision in a court order that temporarily awards a former 

spouse survivor annuity satisfies the requirements of § 581.804(b)(2), but 

the temporary award becomes permanent on the date on which OPM is 

barred from honoring a modification of the court order (the date of 

retirement or death, or, in the case of a post-retirement divorce, the date 

of the initial court order), as provided in sections 8341(h)(4) and 8445(d) 

of title 5, United States Code. 

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§ 838.932 Court orders § 838.932 Court orders that permit the former spouse to elect to 

that permit the former receive a former spouse survivor annuity. 

spouse to elect to receive a 

former spouse survivor (a) Except as provided in paragraph (b) of this section, a court order 

annuity. that gives the former spouse the right to elect a former spouse survivor 

annuity satisfies the requirements of § 838.804(b)(2) and provides a 

former spouse survivor annuity in the amount otherwise provided by the 

court order. 

(b) A former spouse who has been awarded a former spouse 

survivor annuity by a court order that gives the former spouse the right to 

elect a former spouse survivor annuity may irrevocably elect not to be 

eligible for a former spouse survivor annuity based on the court order. 

(c) The former spouse may make the election under paragraph (b) 

of this section at any time after the issuance 

of the court order. An election under paragraph (b) of this section-­

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Former Spouse Survivor Annuities
 

(1) Must be in writing and in the form prescribed by OPM; 

(2) Is effective on the first day of the month following the month in 

which OPM receives the election; and 

(3) Is irrevocable once it has become effective. 

(d) The reduction in an employee annuity based on a court order that 

gives the former spouse the right to elect a former spouse survivor 

annuity terminates on the last day of the month in which OPM receives 

the former spouse's election under paragraph (b) of this section. 

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§ 838.933 Payment of the § 838.933 Payment of the cost of a former spouse survivor annuity. 

cost of a former spouse 

survivor annuity. (a) A court order that unequivocally awards a former spouse 

survivor annuity and directs the former spouse to pay for that benefit 

satisfies the requirements of § 838.805, and-­

(1) If the former spouse has also been awarded a portion of the 

employee annuity then the cost of the survivor benefit will be deducted 

from the former spouse's share of the employee annuity (if sufficient to 

cover the total cost--there will be no partial withholding); otherwise, 

(2) The reduction will be taken from the employee annuity and 

collection from the former spouse will be a private matter between the 

parties. 

(b) A court order that conditions the award of a former spouse 

survivor annuity on the former spouse's payment of the cost of the benefit 

satisfies the requirements of § 838.805 only if a court order acceptable 

for processing also awards the former spouse a portion of the employee 

annuity sufficient to cover the cost. 

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99
 
Retirement Regulations
 

Model Paragraphs
 

MODEL PARAGRAPHS MODEL PARAGRAPHS 

Appendix A to Subpart I 

of Part 838-­

Recommended Language 

for Court Orders 

Awarding Former Spouse 

Survivor Annuities. 

Appendix A to Subpart I of Part 838--Recommended Language for 

Court Orders Awarding Former Spouse Survivor Annuities. 

This appendix provides recommended language for use in court 

orders awarding former spouse survivor annuities. A former spouse 

survivor annuity is not a continuation of a former spouse's share of an 

employee annuity after the death of the employee. A former spouse's 

entitlement to a portion of an employee annuity cannot continue after the 

death of the employee. A court order that attempts to extend the former 

spouse's entitlement to a portion of an employee annuity past the death of 

the employee is not effective. The model language in this appendix does 

not award benefits payable to the former spouse during the lifetime of the 

employee. A separate, distinct award of a portion of the employee 

annuity is necessary to award a former spouse a benefit during the 

lifetime of the employee. Appendix A to subpart F of this part contains 

model language for a portion of an employee annuity. 

Attorneys should exercise great care in preparing provisions 

concerning former spouse survivor annuities because sections 8341(h)(4) 

and 8445(d) of title 5, United States Code, prohibit OPM from accepting 

modifications after the retirement or death of the employee. (See 

§ 838.806 concerning unacceptable modifications.) A court order 

awarding a former spouse survivor annuity should include four elements: 

! Identification of the retirement system; 

! Explicit award of the former spouse survivor annuity; 

! Method for computing the amount of the former spouse's benefit; 

and 

! Instructions on what OPM should do if the employee leaves 

Federal service before retirement and applies for a refund of employee 

contributions. 

By using the model language, courts will know that the court order will 

have the effect described in this appendix. 

The model language uses the terms "[former spouse]" to identify the 

spouse who is receiving a former spouse survivor annuity and 

"[employee]" to identify the Federal employee whose employment was 

covered by the Civil Service Retirement System or the Federal 

Employees Retirement System. Obviously, in drafting an actual court 

order the appropriate terms, such as "Petitioner" and "Respondent," or 

the names of the parties should replace "[former spouse]" and 

"[employee]." 

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Model Paragraphs 

Similarly, except when the provision applies only to the basic 

employee death benefit (defined in § 843.103 of this chapter) that is 

available only under the Federal Employees Retirement System, the 

models are drafted for employees covered by the Civil Service 

Retirement System (5 U.S.C. 8331 et seq.). The name of the retirement 

system should be changed for employees covered by the Federal 

Employees Retirement System (5 U.S.C. chapter 84.). 

Statutory references used in the models are to CSRS provisions 

(such as section 8341(h) of title 5, United States Code). When 

appropriate, the corresponding FERS provision (such as section 8445 of 

title 5, United States Code) should be used. 

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Model Paragraphs
 

TABLE OF CONTENTS TABLE OF CONTENTS 

700 Series--Computing the amount of the former spouse's benefit. 

¶701 Award of the maximum survivor annuity.
 

¶702 Award that continues the pre-divorce survivor annuity benefits.
 

¶703 Award of a prorata share.
 

¶704 Award of a fixed monthly amount.
 

¶705-710 [Reserved].
 

¶711 Award of a percentage or fraction of the employee annuity.
 

¶712 Award based on a stated formula as a share of employee annuity.
 

¶713-720 [Reserved].
 

¶721 Award of a percentage or fraction of the maximum survivor 

annuity. 

¶722 Award based on a stated formula as a share of maximum survivor 

annuity. 

¶723-750 [Reserved]. 

¶751 Changing amount of former spouse survivor annuity based on 

remarriage before retirement. 

¶752 Changing amount of former spouse survivor annuity based on 

remarriage after retirement. 

800 Series--Paying the cost of a former spouse survivor annuity. 

¶801 Costs to be paid from the employee annuity. 

¶802 Costs to be paid from former spouse's share of the employee 

annuity. 

900 Series--Refunds of employee contributions. 

¶901 Barring payment of a refund of employee contributions. 

¶902 Dividing a refund of employee contributions. 

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Model Paragraphs
 

700 Series--Computing 

the amount of the former 

spouse's benefit. 

¶701 Award of the 

maximum survivor 

annuity. 

For a spouse who was married to 

a retiree at the time of retirement 

and consented to an election of 

less than a full survivor annuity, 

the maximum is the amount 

elected at retirement. For a 

spouse acquired after retirement 

and for whom the retiree elected 

less than the maximum survivor 

benefit, this language should be 

used only if the intent is to 

increase the survivor benefit to 

the maximum. 

700 Series--Computing the amount of the former spouse's benefit. 

Paragraphs 701 through 704 contain model language for awards of 

former spouse survivor annuities in amounts that do not require 

specification of the base on which the former spouse's share will be 

computed. Situations in which the computational base need not be 

specified include amounts defined by law or regulation. For example, the 

maximum former spouse survivor annuity is fixed by statute generally at 

55 percent of the employee annuity under CSRS and 50 percent of the 

employee annuity under FERS. 

Paragraphs 711 and 712 contain model language for awards of 

former spouse survivor annuities that use the employee annuity as the 

base on which the portion awarded will be computed (that is, on which 

percentage, fraction or formula will be applied). Paragraphs 721 and 722 

contain model language for awards of former spouse survivor annuities 

that use the maximum possible survivor annuity as the base on which the 

portion awarded will be computed (that is, on which percentage, fraction 

or formula will be applied). Using the maximum possible survivor 

annuity as the base will generally award 55 percent under CSRS and 50 

percent under FERS of the amount that using the employee annuity as the 

base would produce. 

Paragraphs 750 and higher contain model language to implement the 

most common other types of awards. 

Each model paragraph includes a reference to the statutory provision 

under CSRS that authorizes OPM to honor court orders awarding former 

spouse survivor annuities. The FERS statutory provision that corresponds 

to section 8341(h) (mentioned in the first sentence of each example) is 

section 8445. 

¶701 Award of the maximum survivor annuity. 

Using the following paragraph will award the maximum possible 

former spouse survivor annuity. Under CSRS, the maximum possible 

survivor annuity is 55 percent of the employee annuity unless the 

surviving spouse or former spouse was married to the retiree at 

retirement and agreed to a lesser amount at that time. Under FERS, the 

maximum possible survivor annuity is 50 percent of the employee annuity 

unless the surviving spouse or former spouse was married to the retiree at 

retirement and agreed to a lesser amount at that time. 

"Under section 8341(h)(1) of title 5, United States Code, [former 

spouse] is awarded the maximum possible former spouse survivor annuity 

under the Civil Service Retirement System." 

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Model Paragraphs
 

¶702 Award that 

continues the pre-divorce 

survivor annuity benefits. 

If a survivor benefit election of 

less than the full amount is in 

effect at the time of divorce, use 

of this language will emphasize 

that the lower benefit will remain 

in effect after the divorce. In all 

other instances this language will 

produce the maximum survivor 

annuity. 

¶703 Award of a prorata 

share. 

¶704 Award of a fixed 

monthly amount. 

¶702 Award that continues the pre-divorce survivor annuity benefits. 

Using the following paragraph will award a former spouse survivor 

annuity equal to the amount that the former spouse would have received if 

the marriage were never terminated by divorce. 

"Under section 8341(h)(1) of title 5, United States Code, [Former 

spouse] is awarded a former spouse survivor annuity under the Civil 

Service Retirement System in the same amount to which [former spouse] 

would have been entitled if the divorce had not occurred." 

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¶703 Award of a prorata share. 

Using the following paragraph will award the former spouse a 

prorata share of the maximum possible survivor annuity. Prorata share is 

defined in § 838.922. To award a prorata share the court order must 

state the date of the marriage. Unless the court order specifies a different 

ending date, the marriage ends for computation purposes on the date that 

the court order is filed with the court clerk. 

"Under section 8341(h)(1) of title 5, United States Code, [former 

spouse] is awarded a former spouse survivor annuity under the Civil 

Service Retirement System. The amount of the former spouse survivor 

annuity will be equal to a prorata share. The marriage began on [insert 

date]." 

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¶704 Award of a fixed monthly amount. 

Using the following paragraph will award a former spouse survivor 

annuity that will start at the amount stated in the order when the employee 

or retiree dies, unless the stated amount exceeds the maximum possible 

former spouse survivor annuity. If the amount stated in the order exceeds 

the maximum possible former spouse survivor annuity, the court order 

will be treated as awarding the maximum. After payment of the former 

spouse survivor annuity has begun, COLA's will be applied in accordance 

with § 838.735. If the final sentence of this model paragraph is omitted, 

OPM will add COLA's occurring after the date of the employee's 

retirement or the date of issuance of the court order, whichever is later. 

"Under section 8341(h)(1) of title 5, United States Code, [former 

spouse] is awarded a former spouse survivor annuity under the Civil 

Service Retirement System. The amount of the former spouse survivor 

annuity will be equal to $[insert a number] per month. The Office of 

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¶711 Award of a 

percentage or fraction of 

the employee annuity. 

¶712 Award based on a 

stated formula as a share 

of employee annuity. 

Personnel Management is ordered not to increase this amount by COLA's 

occurring before death of [employee or retiree]." 

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¶705-710 [Reserved]. 

¶711 Award of a percentage or fraction of the employee annuity. 

Using the following paragraph will award a former spouse survivor 

annuity equal to the stated percentage or fraction of the employee annuity. 

The stated percentage or fraction may not exceed 55 percent under CSRS 

or 50 percent under FERS. 

"Under section 8341(h)(1) of title 5, United States Code, [former 

spouse] is awarded a former spouse survivor annuity under the Civil 

Service Retirement System. The amount of the former spouse survivor 

annuity will be equal to [insert a percentage or fraction] percent of the 

[employee]'s employee annuity." 

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¶712 Award based on a stated formula as a share of employee 

annuity. 

Using the following paragraphs will award a former spouse survivor 

annuity in an amount to be determined by applying a stated formula to 

employee annuity. The amount of the former spouse survivor annuity 

may not exceed 55 percent of the employee annuity under CSRS or 50 

percent under FERS. The formula must be stated in the court order 

(including a court-approved property settlement agreement). The formula 

may not be incorporated by reference to a statutory provision or a court 

decision in another case. If the court order uses a formula, the court 

order must include any data that is necessary for OPM to evaluate the 

formula unless the necessary data is contained in normal OPM files. 

"Under section 8341(h)(1) of title 5, United States Code, [former 

spouse] is awarded a former spouse survivor annuity under the Civil 

Service Retirement System. The amount of the former spouse survivor 

annuity will be the portion of the [employee]'s employee annuity 

computed as follows: 

"[Insert formula.]" 

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¶713-720 [Reserved]. 

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Model Paragraphs
 

¶721 Award of a 

percentage or fraction of 

the maximum survivor 

¶721 Award of a percentage or fraction of the maximum survivor 

annuity. 

annuity. Using the following paragraph will award a former spouse survivor 

annuity equal to the stated percentage or fraction of the maximum 

possible survivor annuity. The stated percentage or fraction may not 

exceed 100 percent. 

"Under section 8341(h)(1) of title 5, United States Code, [former 

spouse] is awarded a former spouse survivor annuity under the Civil 

Service Retirement System. The amount of the former spouse survivor 

annuity will be equal to [insert a percentage or fraction] of the maximum 

possible survivor annuity. 

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¶722 Award based on a 

stated formula as a share 

of maximum survivor 

¶722 Award based on a stated formula as a share of maximum 

survivor annuity. 

annuity. Using the following paragraphs will award a former spouse survivor 

annuity based on a stated formula to be applied to the maximum possible 

survivor annuity. The formula must be stated in the court order 

(including a court-approved property settlement agreement). The formula 

may not be incorporated by reference to a statutory provision or a court 

decision in another case. If the court order uses a formula, the court 

order must include any data that is necessary for OPM to evaluate the 

formula unless the necessary data is contained in normal OPM files. 

"Under section 8341(h)(1) of title 5, United States Code, [former 

spouse] is awarded a former spouse survivor annuity under the Civil 

Service Retirement System. The amount of the former spouse survivor 

annuity will be the portion of the maximum possible survivor annuity 

computed as follows: 

"[Insert formula.]" 

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¶723-750 [Reserved]. 

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Model Paragraphs
 

¶751 Changing amount of 

former spouse survivor 

annuity based on 

remarriage before 

retirement. 

¶752 Changing amount of 

former spouse survivor 

annuity based on 

remarriage after 

retirement. 

¶751 Changing amount of former spouse survivor annuity based on 

remarriage before retirement. 

Using the following paragraph will award the maximum possible 

former spouse survivor annuity unless the employee remarries before 

retirement. Upon the employee's remarriage before retirement the 

amount of the former spouse survivor annuity changes to a prorata share. 

The maximum possible and prorata share are used as examples only; 

other amounts may be substituted. Similar language is not acceptable for 

remarriages after retirement. 

"Under section 8341(h)(1) of title 5, United States Code, [former 

spouse] is awarded the maximum possible former spouse survivor annuity 

under the Civil Service Retirement System unless [employee] remarries 

before retirement. If [employee] remarries before retirement, under 

section 8341(h)(1) of title 5, United States Code, [former spouse] is 

awarded a former spouse survivor annuity under the Civil Service 

Retirement System. The amount of the former spouse survivor annuity 

will be equal to a prorata share. The marriage to [former spouse] began 

on [insert date]." 

S)))))))))))))))))))))))))))) 

¶752 Changing amount of former spouse survivor annuity based on 

remarriage after retirement. 

Using the following paragraph will award the maximum possible 

former spouse survivor annuity unless the employee remarries after 

retirement and elects to provide a survivor annuity for the spouse 

acquired after retirement. Upon the employee's remarriage after 

retirement and election to provide a survivor annuity for the spouse 

acquired after retirement, the amount of the former spouse survivor 

annuity changes to a prorata share. The maximum possible and prorata 

share are used as examples only; other amounts may be substituted. The 

change in the amount of the former spouse survivor annuity must be 

triggered by the election, which is a part of normal OPM files, rather 

than the remarriage, which is not documented in normal OPM files. 

"Under section 8341(h)(1) of title 5, United States Code, [former 

spouse] is awarded the maximum possible former spouse survivor annuity 

under the Civil Service Retirement System unless [employee] elects to 

provide a survivor annuity for a new spouse acquired after retirement. If 

[employee] elects to provide a survivor annuity to a new spouse acquired 

after retirement, under section 8341(h)(1) of title 5, United States Code, 

[former spouse] is awarded a former spouse survivor annuity under the 

Civil Service Retirement System. The amount of the former spouse 

survivor annuity will be equal to a prorata share. The marriage to 

[former spouse] began on [insert date]." 

107
 
Retirement Regulations
 

Model Paragraphs
 

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800 Series--Paying the 800 Series--Paying the cost of a former spouse survivor annuity. 

cost of a former spouse 

survivor annuity. A court order awarding a former spouse survivor annuity requires 

that the employee annuity be reduced. The reduction lowers the gross 

employee annuity. The costs associated with providing the former spouse 

survivor annuity must be paid by annuity reduction. Under § 838.807, if 

the former spouse is awarded a portion of the employee annuity sufficient 

to pay the cost associated with providing the survivor annuity, the former 

spouse's share may be reduced to pay the cost. 

¶801 Costs to be paid ¶801 Costs to be paid from the employee annuity. 

from the employee 

annuity. No special provision on payment of the costs associated with 

providing the former spouse survivor annuity is necessary if the court 

intends the cost to be taken from the employee annuity. 

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¶802 Costs to be paid ¶802 Costs to be paid from former spouse's share of the employee 

from former spouse's annuity. 

share of the employee 

annuity. Using the following paragraph will award the former spouse a 

prorata share of the employee annuity and a prorata share of the 

maximum possible survivor annuity and provide that the cost associated 

with the survivor annuity be deducted from the former spouses's share of 

the employee annuity. Prorata share and self-only annuity are used as 

examples only; another amount or type of annuity may be substituted. 

"[Employee] is (or will be) eligible for retirement benefits under the 

Civil Service Retirement System based on employment with the United 

States Government. [Former spouse] is entitled to a prorata share of 

[employee]'s self-only monthly annuity under the Civil Service 

Retirement System. [Former spouse]'s share of [employee]'s employee 

annuity will be reduced by the amount of the costs associated with 

providing the former spouse survivor annuity awarded in the next 

paragraph. The marriage began on [insert date]. The United States 

Office of Personnel Management is directed to pay [former spouse]'s 

share directly to [former spouse]." 

"Under section 8341(h)(1) of title 5, United States Code, [former 

spouse] is awarded a former spouse survivor annuity under the Civil 

Service Retirement System. The amount of the former spouse survivor 

annuity will be equal to a prorata share. 

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108
 
Retirement Regulations
 

Model Paragraphs
 

900 Series--Refunds of 900 Series--Refunds of employee contributions. 

employee contributions. 

Court orders that award a former spouse survivor annuity based on 

the service of an employee who is not then eligible to retire should 

include an additional paragraph containing instructions that tell OPM what 

to do if the employee requests a refund of employee contributions before 

becoming eligible to retire. The court order may award the former 

spouse a portion of the refund of employee contributions or bar payment 

of the refund of employee contributions. 

¶901 Barring payment of ¶901 Barring payment of a refund of employee contributions. 

a refund of employee 

contributions. Using the following paragraph will bar payment of the refund of 

employee contributions if payment of the refund of employee 

contributions would extinguish the former spouse's entitlement to a 

former spouse survivor annuity. "The United States Office of Personnel 

Management is directed not to pay [employee] a refund of employee 

contributions." 

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¶902 Dividing a refund of ¶902 Dividing a refund of employee contributions. 

employee contributions. 

Using the following paragraph will allow the refund of employee 

contributions to be paid but will award a prorata share of the refund of 

employee contributions to the former spouse. The award of a prorata 

share is used only an example; the court order could provide another 

fraction, percentage, or formula, or a fixed amount. A refund of 

employee contributions voids the employee's rights to an employee 

annuity unless the employee is reemployed under the retirement system. 

Payment of the refund of employee contributions will also extinguish the 

former spouse's right to a court-ordered portion of an employee annuity 

or a former spouse survivor annuity unless the employee is reemployed 

and reestablishes title to annuity benefits. 

"If [employee] becomes eligible and applies for a refund of 

employee contributions, [former spouse] is entitled to a prorata share of 

the refund of employee contributions. The marriage began on [insert 

date]. The United States Office of Personnel Management is directed to 

pay [former spouse]'s share directly to [former spouse]." 

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109
 
HEALTH BENEFITS
 
Former spouse health benefits coverage 

Former spouses may enroll for Federal 

Employees Health Benefits (FEHB) coverage in 

their own right if they meet the spouse equity 

requirements of the FEHB law. Former spouses 

Former spouses may enroll for 

Federal Employees Health Benefits 

(FEHB) coverage in their own 

right if they meet the . . . 

requirements of the FEHB law. 

Former spouses of Federal 

employees or retirees may not 

continue to receive FEHB 

coverage under the employee or 

retiree's enrollment after divorce. 

of Federal employees or retirees may not continue 

to receive FEHB coverage under the employee or 

retiree's enrollment after divorce because the 

former spouse does not meet the definition of 

family member under section 8901(5) of title 5, 

United States Code. Further, the Office of 

The Office of Personnel 

Management cannot honor a court 

order requiring it to provide FEHB 

coverage to a former spouse. 

Personnel Management cannot honor a court order 

requiring it to provide FEHB coverage to a former 

spouse, because section 8902(m)(1) of title 5, 

United States Code, preempts State law in matters 

relating to the nature and extent of coverage or 

benefits. 

The provisions of law and regulation 

contained in the following pages govern the 

continuation of FEHB coverage for a former 

spouse. Basically, a former spouse's entitlement 

to continue FEHB coverage (under section 8905 of 

title 5, United States Code) after divorce is 

contingent on four requirements. The former 

spouse must: 

(1) be covered as a family member under the 

employee/retiree's FEHB enrollment for at least 1 

day during the 18 months prior to divorce; 

(2) be entitled to receive a portion of the 

retirement annuity after the employee retires or a 

survivor annuity at the time the employee/retiree 

dies; 

The former spouse must . . . be 

entitled to receive a portion of the 

retirement annuity after the 

employee retires or a survivor 

annuity at the time the 

employee/retiree dies [and] within 

60 days after divorce, apply to the 

agency employing office where the 

Federal employee worked at the 

time of divorce. 

(3) within 60 days after divorce, apply to the 

agency employing office where the Federal 

employee worked at the time of divorce by submitting written notice that he or she wants to 

continue FEHB coverage under the spouse equity 

provisions of the FEHB law (if divorce occurred 

after retirement the employing office is the 

retirement system); and 

(4) not remarry prior to age 55. 

An individual who qualifies as a former 

spouse must enroll for FEHB coverage in his or 

her own right and must pay both the employee's 

and the Government's share of the premium. 

Coverage is prospective from the first day of the 

pay period after the employing office receives all 

properly completed qualifying documents. To 

avoid a break in coverage, the former spouse may 

want to enroll for a temporary continuation of 

FEHB coverage under section 8905a of title 5, 

United States Code, pending a decision on 

eligibility for coverage as a former spouse. 
Health Benefits 

Former spouses who do not meet the criteria for 

FEHB coverage under section 8905 of title 5, 

United States Code may continue coverage for 3 

years from the date of the divorce under section 

8905a of title 5, United States Code. The former 

spouse can get information about this through the 

agency employing office where the Federal 

employee worked at the time of divorce or through 

the annuitant's retirement system. 

To avoid a break in coverage, the 

former spouse may want to enroll 

for a temporary continuation of 

FEHB coverage under section 

8905a of title 5, United States 

Code, pending a decision on 

eligibility for coverage as a former 

spouse. 

A court order acceptable for processing 

granting the former spouse a portion of the 

retiree's annuity provides the former spouse with 

a monthly payment after the employee retires and 

continued FEHB coverage until the employee dies. 

A court order acceptable for processing granting a 

survivor annuity provides the former spouse with 

continued FEHB coverage until the former spouse 

dies, but the annuity does not begin until the 

employee/retiree dies. A court order acceptable 

for processing providing both a portion of the 

retirement annuity and a survivor annuity ensures 

an annuity payment from the date of retirement or 

death and continued FEHB coverage until the 

former spouse dies. The minimum amount of a 

former spouse annuity is discussed under 

§ 838.133 of Title 5, Code of Federal Regulations, 

at page 37 of this publication. 

No model language is included in this section 

because the former spouse's continued entitlement 

to FEHB coverage is based on the court order 

requirements for a former spouse annuity. 

Children's eligibility for FEHB coverage is also 

controlled entirely by Federal law and cannot be 

affect by any language in a State court order. 

112
 
FEHB Statutory Provisions 

FEHB Statutory Provisions 

Section 8901(10) of title 5, United States Code, defines "former spouse" for determining eligibility 

for FEHB coverage. It provides: 

§ 8901. Definitions § 8901. Definitions 

For the purpose of this chapter-­

* * * * * 

(10) "former spouse" means a former spouse of an employee, 

former employee, or annuitant-­

(A) who has not remarried before age 55 after the marriage to 

the employee, former employee, or annuitant was dissolved, 

(B) who was enrolled in an approved health benefits plan under 

this chapter as a family member at any time during the 18-month 

period before the date of the dissolution of the marriage to the 

employee, former employee, or annuitant, and 

(C)(i) who is receiving any portion of an annuity under section 

8345(j) or 8467 of this title or a survivor annuity under section 

8341(h) or 8445 of this title (or benefits similar to either of the 

aforementioned annuity benefits under a retirement system for 

Government employees other than the Civil Service Retirement 

System or the Federal Employees' Retirement System), 

(ii) as to whom a court order or a decree referred to in section 

8341(h), 8345(j), 8445 or 8467 of this title (or similar provision of 

law under any such retirement system other than the Civil Service 

Retirement System or the Federal Employees' Retirement System) 

has been issued, or for whom an election has been made under 

section 8339(j)(3) or 8417(b) of this title (or similar provision of 

law), or 

(iii) who is otherwise entitled to an annuity or any portion of an 

annuity as a former spouse under a retirement system for 

Government employees, 

except that such term shall not include any such unremarried former 

spouse of a former employee whose marriage was dissolved after the 

former employee's separation from the service (other than by 

retirement)[.] 

* * * * * 

113
 
FEHB Statutory Provisions 

Section 8905(c) of title 5, United States Code, establishes the requirement that a former spouse must 

satisfy to enroll for FEHB. It provides: 

§ 8905. Election of § 8905. Election of Coverage 

Coverage 

* * * * * 

(c)(1) A former spouse may-­

(A) within 60 days after the dissolution of the marriage, or 

(B) in the case of a former spouse of a former employee whose 

marriage was dissolved after the employee's retirement, within 60 

days after the dissolution of the marriage or, if later, within 60 days 

after an election is made under section 8339(j)(3) or 8417(b) of this 

title for such former spouse by the retired employee, 

enroll in an approved health benefits plan described by section 8903 or 

8903a of this title as an individual or for self and family as provided in 

paragraph (2) of this subsection, subject to agreement to pay the full 

subscription charge of the enrollment, including the amounts determined 

by the Office to be necessary for administration and reserves pursuant to 

section 8909(b) of this title. The former spouse shall submit an 

enrollment application and make premium payments to the agency which, 

at the time of divorce or annulment, employed the employee to whom the 

former spouse was married in the case of a former spouse who is 

receiving annuity payments under section 8341(h), 8345(j), 8445, or 8467 

of this title, to the Office of Personnel Management. 

(2) Coverage for self and family under this subsection shall be 

limited to-­

(A) the former spouse; and 

(B) unmarried dependent natural or adopted children of the 

former spouse and the employee who are-­

(i) under 22 years of age; or 

(ii) incapable of self-support because of mental or physical 

disability which existed before age 22. 

114
 
PART 890--FEDERAL PART 890--FEDERAL EMPLOYEES HEALTH BENEFITS 

EMPLOYEES HEALTH PROGRAM 

BENEFITS PROGRAM 

* * * * * 

Subpart H--Benefits for 

Former Spouses 

Subpart H--Benefits for Former Spouses 

§ 890.801 Introduction. § 890.801 Introduction. 

This subpart sets forth policies and procedures for obtaining health 

benefits coverage that are unique to former spouses of Federal employees 

and retirees. 

S)))))))))))))))))))))))))))) 

§ 890.802 Definition. § 890.802 Definition. 

In this subpart, a "Qualifying court order" means a court order 

acceptable for processing as defined in § 838.103 of this chapter or 

qualifying court order as defined in § 838.1003 of this chapter. 

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§ 890.803 Who may 

enroll. 

§ 890.803 Who may enroll. 

(a) Except as specified in paragraph (b) of this section, a former 

spouse is eligible to enroll in a health benefits plan under this part 

provided that-­

(1) The former spouse whose marriage to an employee, employee 

annuitant, or a former Central Intelligence agency (CIA) or Foreign 

Service employee is dissolved has not remarried before age 55; and 

(2) The former spouse was enrolled in a health benefits plan under 

this part as a family member at any time during the 18 months preceding 

the date of the dissolution of marriage; and 

(3)(i) The former spouse currently receives, or has future title to 

receive (A) a portion of annuity payable to the employee upon retirement 

based on a qualifying court order for purposes of 5 U.S.C. 8345(j) or 5 

U.S.C. 8467; (B) survivor annuity benefits based on a qualifying court 

order for purposes of 5 U.S.C. 8341(h) or 5 U.S.C. 8445; or (C) a 

survivor annuity elected by the employee under 5 U.S.C. 8339(j)(3) or 5 

U.S.C. 8417(b), including a former spouse who is designated as an 

insurable interest pursuant to 5 CFR 831.605(a) and (b) and 842.606(a) 

and (b) (or benefits similar to those under this paragraph under another 

retirement system for Government employees); or 

(ii) The former spouse was married to an employee who retired 

before May 7, 1985, and (A) the employee annuitant elects to provide a 

survivor annuity to the former spouse under procedures prescribed in 

§ 831.621 of this title; or, (B) the former spouse satisfies all of the 

conditions for a survivor annuity in § 831.622 of this title; or 
Health Benefits Regulations 

(iii) The former spouse was married to an employee or former 

employee of the Central Intelligence Agency (CIA) for at least 10 years 

during the employee's CIA service, at least 5 years of which both the 

employee and the former spouse spent outside the United States, and the 

marriage was dissolved before May 7, 1985; or, 

(iv) The former spouse was married to an employee or former 

employee of the Foreign Service for at least 10 years during the 

employee's government service, and the marriage was dissolved before 

May 7, 1985. 

(b) Except as contained in paragraphs (a)(3)(iv) and (v) of this 

section, a former spouse of an employee who separates from Federal 

service before becoming eligible for immediate annuity is eligible to 

enroll only if the former spouse's marriage to the employee was dissolved 

before the employee left Federal service. 

(c) If a former spouse cannot apply for benefits on his or her own 

behalf because of a mental or physical disability, application may be filed 

by a court-appointed guardian. 

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§ 890.804 Coverage. § 890.804 Coverage. 

Type of enrollment. (a) Type of enrollment. A former spouse who meets the 

requirements of § 890.803 may elect coverage for self alone or for self 

and family. A family enrollment covers only the former spouse and any 

unmarried dependent natural or adopted child of both the former spouse 

and the employee, former employee or employee annuitant, provided 

such child is not otherwise covered by a health plan under this part. An 

unmarried dependent child must be under age 22 or incapable of selfsupport because of a mental or physical disability existing before age 22. 

No person may be covered by two enrollments. 

Proof of dependency. (b) Proof of dependency. (1) A child is considered to be dependent 

on the former spouse or the employee, former employee, or employee 

annuitant if he or she is-­

(i) A legitimate child; 

(ii) An adopted child; 

(iii) A recognized natural child who lives with the former spouse or 

the employee, former employee, or employee annuitant in a regular 

parent-child relationship. 

(iv) A recognized natural child for whom a judicial determination of 

support has been obtained; or 

116
 
Health Benefits Regulations 

Exclusions from coverage. 

Child incapable of selfsupport. 

Meaning of unmarried 

child. 

§ 890.805 Application 

time limitations. 

(v) A recognized natural child to whose support the former spouse, 

or the employee, former employee, or employee annuitant makes regular 

and substantial contribution in accordance with § 890.302(b)(2). 

(c) Exclusions from coverage. Coverage as a family member may 

be denied-­

(1) If evidence shows that the former spouse, employee, former 

employee, or annuitant did not recognize the child as his or her own, 

despite a willingness to support the child; or 

(2) If evidence calls the child's paternity or maternity into doubt, 

despite the former spouse's, employee's, former employee's, or 

employee annuitant's recognition and support of the child. 

(d) Child incapable of self-support. When a former spouse enrolls 

for a family enrollment which includes a child who has become 22 years 

of age and is incapable of self-support, the employing office shall 

determine such child's eligibility in accordance with § 890.302(d), (e) and 

(f). 

(e) Meaning of unmarried child. A child, under age 22 or incapable 

of self-support, who has never married or whose marriage has been 

annulled, or a child who is divorced or widowed is considered to be 

unmarried. 

S)))))))))))))))))))))))))))) 

§ 890.805 Application time limitations. 

(a) Except for former spouses meeting the requirements in 

§ 890.803(a)(3)(iv) and (v) of this part, former spouses must apply for 

health benefits coverage-­

(1) Within 60 days after dissolution of the marriage to the Federal 

employee; or 

(2) Within 60 days after the date of OPM's notice of eligibility to 

enroll based on entitlement to one of the following: 

(i) A former spouse annuity elected under 5 U.S.C. 8339(j)(3), 5 

U.S.C. 8417(b), or 5 CFR 831.621. 

(ii) A former spouse annuity under § 831.622; 

(iii) A former spouse insurable interest annuity under 5 U.S.C. 

8339(k)(1) or 8420(a); 

(iv) A former spouse annuity under 5 U.S.C. 8341(h) or 8445(f); 

117
 
Health Benefits Regulations 

§ 890.806 Effective dates 

of coverage. 

Generally. 

Change required because of 

insufficient annuity. 

(v) An appointment under 5 U.S.C. 8345(j) or 8467; or (3) Within 

60 days after the date of the notice of eligibility to enroll based on 

entitlement to a former spouse annuity under another retirement system 

for Government employees. 

(b) Former spouses who meet the requirements in 

§ 890.803(a)(3)(iv) of this part must apply for health benefits coverage by 

April 1, 1987. Where circumstances warrant, the former spouse may 

request that the filing date be waived. The authority of the Director of 

Central Intelligence to direct OPM to waive the filing date has been 

delegated to CIA's Office of Personnel. Requests for waiver should be 

addressed to the Office of Personnel, Retirement Division, Central 

Intelligence Agency, Washington, DC 20505. OPM will waive the April 

1, 1987, filing date upon notification to do so from the Director of 

Central Intelligence. 

(c) Former spouses who meet the requirements in 

§ 890.803(a)(3)(v) of this part must apply for health benefits coverage by 

October 7, 1988. Where circumstances warrant, the former spouse may 

request the Secretary of State to waive the filing date. The authority of 

the Secretary of State to waive the filing date has been delegated to the 

Department of State's Retirement Division. Requests for waiver should 

be addressed to the Department of State, Retirement Division, 

Washington, DC 20520. OPM will accept the waiver upon notification 

to do so from the Department of State. 

S)))))))))))))))))))))))))))) 

§ 890.806 Effective dates of coverage. 

(a) Generally. (1) The effective date of enrollment is the first day 

of the pay period that begins after the date the employing office receives 

the properly completed Standard Form 2809 or an appropriate substitute 

(i.e., a signed statement with sufficient information to execute enrollment) 

and satisfactory proof of eligibility. 

(2) The effective date of a change of enrollment is the first day of 

the pay period after the date the employing office receives the properly 

completed Standard Form 2809. 

(b) Change required because of insufficient annuity. When a former 

spouse receiving an annuity under 5 U.S.C. Chapter 83 changes to a 

lower cost enrollment as provided by § 890.301(q), the change is 

effective immediately upon loss of coverage under the prior enrollment. 

S)))))))))))))))))))))))))))) 

118
 
Health Benefits Regulations 

§ 890.807 Termination of 

enrollment. 

§ 890.807 Termination of enrollment. 

(a)(1) Except for former spouses meeting the requirements in 

§ 890.803(a)(3)(iv) and (v) of this part, a former spouse's enrollment 

terminates, subject to the temporary extension of coverage for 

conversion, at midnight of the last day of the pay period in which the 

earliest of the following events occurs: 

(i) Court order ceases to provide entitlement to survivor annuity or 

portion of retirement annuity under a retirement system for Government 

employees. 

(ii) Former spouse remarries before age 55. 

(iii) Former spouse dies. 

(iv) Employee or annuitant on whose service the benefits are based 

dies and no survivor annuity is payable. 

(v) Separated employee on whose service the benefits are based dies 

before the requirements for deferred annuity have been met. 

(vi) Employee on whose service benefits are based leaves Federal 

service before establishing title to an immediate annuity or a deferred 

annuity. 

(vii) Refund of retirement money is paid to the separated employee 

on whose service the health benefits are based. 

(2) OPM may authorize a longer time frame for the temporary 

extension of coverage for conversion than the 31 days provided in 

§ 890.401(a) if in OPM's judgment the former spouse could not have 

known that (1) the employee on whose service benefits are based left 

Federal service before establishing title to an immediate or deferred 

annuity; or (2) the separated employee on whose service the benefits are 

based died before the requirements for deferred annuity had been met. In 

such cases, the right of conversion may be exercised up to 31 days after 

the employing office's notice of termination. The former spouse must 

pay the full premium (employee's and Government's share) during the 

extended period, exclusive of the 31-day period following the notice. 

(3) Termination of enrollment for failure to pay premiums within 

the time frame established in accordance with § 890.808(d)(1) is 

retroactive to the end of the last pay period for which payment has been 

timely received. 

(4) A former spouse whose enrollment is terminated under this 

paragraph may not reenroll. 

119
 
Health Benefits Regulations 

Coverage of members of 

the family. 

Cancellation. 

§ 890.808 Employing 

Office Responsibilities. 

Application for benefits. 

Administration of the 

enrollment process. 

(b) The enrollment of a former spouse who meets the requirements 

in § 890.803(a)(3)(iv) or (v) of this part terminates, subject to the 

temporary extension of coverage for conversion, at midnight of the last 

day of the pay period in which the earliest of the following events occurs: 

(1) Former spouse remarries before age 55. 

(2) Former spouse dies. 

(c) Coverage of members of the family. The coverage of a member 

of the family of a former spouse terminates, subject to the temporary 

extension of coverage for conversion, at midnight of the earlier of the 

following dates: 

(1) The day on which the individual ceases to be an eligible family 

member. 

(2) The day the former spouse ceases to be enrolled, unless the 

family member is entitled as a survivor annuitant to continue enrollment 

or is entitled to continued coverage under the enrollment of another. 

(d) Cancellation. A former spouse may cancel enrollment at any 

time by filing with the employing office a properly completed health 

benefits form. If a former spouse cancels enrollment, the cancellation 

becomes effective on the last day of the pay period after the pay period in 

which the health benefits form cancelling the enrollment is received by 

the employing office. The former spouse and family members, if any, 

are not entitled to the temporary extension of coverage for conversion or 

to convert to an individual contract for health benefits. A former spouse 

who cancels his or her enrollment may not later reenroll. 

S)))))))))))))))))))))))))))) 

§ 890.808 Employing Office Responsibilities. 

(a) Application for benefits. The former spouse's application for 

health benefits may be in the form of a Standard Form 2809, letter, or 

written statement to the employing office. Former spouses applying for 

benefits under § 890.803(a)(3)(iv) of this part must also include with their 

application a request for waiver of the application time limitation in 

accordance with § 890.805(b) of this part. Former spouses applying for 

benefits under § 890.803(a)(3)(v) of this part must also include with their 

application a request for waiver of the application time limitation in 

accordance with 890.805(c) of this part. 

(b) Administration of the enrollment process. (1) The employing 

office will set up a method for accepting applications for enrollment 

informing the former spouse what documents to submit and where to 

submit them for an eligibility determination, and collecting premium 

120
 
Health Benefits Regulations 

Qualifying court order. 

Premium payments. 

payments. The method will include procedures for verifying the 

eligibility requirements under § 890.803(a)(1) and (2) of this part. The 

employing office must obtain OPM, Foreign Service Retirement and 

Disability System (FSRDS), or CIA Retirement and Disability System 

(CIARDS) documentation that the former spouse meets the additional 

requirement under § 890.803(a)(3) (i), (ii), (iii), (iv) or (v) of this part. 

A request for the retirement system's determination whether a court order 

is a qualifying court order for health benefits enrollment under this 

subpart must be accompanied by the documentation specified in 

§ 838.221, § 838.721, or § 838.1005 of this chapter. 

(2) The employing office will send the former spouse notice, in 

writing, of its decision. When an employing office informs a former 

spouse of his or her eligibility to enroll, it will identify the documents on 

which it based its decision and will include a premium payment schedule 

and statement of the requirements for continued enrollment under 

§ 890.803. If the former spouse does not qualify for health benefits 

coverage, the employing office must give the former spouse a 

reconsideration right under § 890.104. Reconsideration requests from 

former spouses applying for benefits under § 890.803(a)(3)(iv) of this part 

must be directed to the Office of Personnel, Retirement Division, Central 

Intelligence Agency, Washington, DC 20505. Reconsideration requests 

from former spouses applying for benefits under § 890.803(a)(3)(v) of 

this part must be directed to the Department of State, Retirement 

Division, Washington, DC 20520. 

(3) The agency employing office will maintain a health benefits file 

for the former spouse as a file separate from the personnel records of the 

employee or former employee. The retirement system acting as 

employing office for the former spouse may file the former spouse health 

benefits records in with the annuitant's retirement records. 

(4) The former spouse will be required to certify that he or she 

meets the requirements listed in § 890.803 and that he or she will notify 

the employing office within 31 days of an event that results in failure to 

meet one or more of the requirements. 

(c) Qualifying court order. Subject to a 31-day extension period for 

conversion, the duration of health benefits coverage will coincide with 

any period specified in the qualifying court order providing for an 

annuity. A court order not meeting the requirements under part 838 of 

this title will not be used to establish or continue entitlement to a former 

spouse's health benefits coverage. 

(d) Premium payments. (1) The former spouse must remit to the 

employing office the full subscription charge for the enrollment for every 

pay period during which the enrollment continues, exclusive of the 31-day 

temporary extension of coverage for conversion provided in §§ 890.401 

and 890.807(a)(2). Payment must be made after the pay period in which 

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Health Benefits Regulations 

the former spouse is covered in accordance with a schedule established by 

the employing office [see definition of "pay period" under § 890.101(a)]. 

If the employing office does not receive payment by the due date, the 

employing office will notify the former spouse by certified mail return 

receipt requested that continuation of coverage rests upon payment being 

made within 15 days (45 days for former spouses residing overseas) after 

receipt of the notice. The enrollment of an individual who fails to remit 

payment within the specified time frame will be terminated. Termination 

for nonpayment of premium is considered a voluntary cancellation under 

§ 890.807(d). A former spouse whose enrollment is terminated because 

of nonpayment of premium may not reenroll or reinstate coverage, except 

as provided in paragraph (d)(2) of this section. 

(2) If the individual was prevented by circumstances beyond his or 

her control from making payment with 15 days after receipt of the notice, 

he or she may request reinstatement of coverage by writing to the 

employing office. Such a request must be filed within 30 calendar days 

from the date of termination and must be accompanied by verification that 

the individual was prevented by circumstances beyond his or her control 

from paying within the time limit. The employing office will determine if 

the individual is eligible for reinstatement of coverage; and, when the 

determination is affirmative, the individual's coverage may be reinstated 

retroactively to the date of termination. If the determination is negative, 

the individual may request a review of the decision from OPM. 

(3) The employing office will submit all premium payments 

collected from former spouses along with its regular health benefits 

payments to OPM in accordance with procedures established by that 

Office. 

Withholding from annuity. (e) Withholding from annuity. The retirement system acting as 

employing office for a former spouse will establish a method for 

withholding the full subscription charge from the former spouse's annuity 

check. When the annuity is insufficient to cover the full amount of health 

benefits premium due, the retirement system will notify the former spouse 

of the opportunity to register to be enrolled in another plan as provided by 

§ 890.301(q) or to make direct payment of the full premium directly to 

the retirement system. 

S))))))))))))))))))))))))))))))))))))))))))) 

122
 
LIFE INSURANCE
 
Assignment of life insurance coverage 

A Federal employee or former employee 

(including an annuitant) may make an irrevocable 

assignment of his or her coverage under the 

Federal Employees' Group Life Insurance 

(FEGLI) policy to another person or to a trust. 

Individuals who assign their FEGLI ownership 

continue to be insured under the FEGLI Program. 

However, they irrevocably transfer to the assignee 

many of the attendant rights, benefits, and 

A Federal employee or former 

employee (including an annuitant) 

may make an irrevocable 

assignment of his or her Federal 

Employees' Group Life Insurance 

(FEGLI) policy to another person 

responsibilities for their basic, standard optional, 

and additional optional insurance. (Family 

optional insurance cannot be assigned.) 

Assignments of insurance are 

generally made to comply with the 

requirements of a court order upon 

divorce or for personal financial 

An assignment automatically cancels a prior 

designation of beneficiary. The distinction 

between a designation of beneficiary and an 

assignment is addressed later. 

Assignments of insurance coverage are 

generally made to comply with the requirements of 

a court order upon divorce or for personal 

financial planning purposes. 

(a) To comply with a court order. An 

assignment of FEGLI coverage may be made by a 

Federal employee or former employee in order to 

comply with a court order for divorce. 

Frequently, the court will order a Federal 

employee or former employee to name a former 

spouse as the beneficiary of his or her life 

insurance proceeds. However, under the FEGLI 

law, an insured person may change his or her 

designation of beneficiary at any time. This is 

true even if a court order directs otherwise, 

because the FEGLI law preempts State law, and 

court orders based on state law, to the extent that 

the state law is inconsistent with the FEGLI 

Assigning FEGLI coverage to a 

former spouse, however, provides 

a means for ensuring that, when 

FEGLI benefits are awarded to a 

former spouse in a divorce, the 

employee is not able to circumvent 

the award by changing the 

designation of beneficiary or 

cancelling the coverage at some 

contract. Assigning FEGLI coverage to a former 

spouse, however, provides a means for ensuring 

that, when FEGLI benefits are awarded to a 

former spouse in a divorce, the employee is not 

able to circumvent the award by changing the 

designation of beneficiary or cancelling the 

coverage at some later date. 

It should be noted that the law does not authorize 

the Office of Personnel Management (OPM) to 

enforce or comply with the provisions of a court 

order directing OPM or a Federal employee or 

former employee to assign FEGLI coverage. The 

law merely allows the Federal employee or former 

employee to make an assignment of FEGLI 

coverage, if he or she so chooses. It is the 

responsibility of the court-designated assignee to 

ensure that the order is enforced. 
Life Insurance 

(b) For inheritance tax purposes. An 

absolute assignment of an insured's interest in a 

group life policy, made at least 3 years before the 

insured's death, will generally remove the 

insurance proceeds from the insured's estate. 

Current Federal estate tax law allows an unlimited 

marital deduction for that portion of the gross 

estate passed to a surviving spouse. Thus, there is 

no apparent immediate tax advantage to assigning 

ownership of a life insurance policy to a spouse. 

However, since State tax laws vary and tax savings 

under Federal or State law can be considerable if 

insurance proceeds are not subject to estate taxes, 

it is important to consult with, and rely on, the 

advice of a competent estate tax advisor. 

The Office of Personnel Management 

assumes no responsibility or obligation with respect 

to the validity, sufficiency, or the consequences of 

an assignment under the Internal Revenue Code. 

If an insured owns more than one 

type of coverage--both basic and 

standard optional, for example--he 

or she must assign all of the 

A determination whether the FEGLI proceeds are 

included in the insured's gross estate must 

ultimately be made by the Internal Revenue 

Service at the time of the insured's death. In 

attempting to determine the tax effect of an 

assignment, the assignor should refer to tax laws, 

case law, and IRS regulations. In addition, the 

assignor should consider obtaining a ruling from 

the IRS. 

If an insured owns more than one type of 

coverage--both basic and standard optional, for 

example--he or she must assign all of the 

insurance. An insured may not assign only a 

portion of the coverage. Family optional insurance 

may not be assigned. An insured may not name 

contingent assignees in the event the primary 

assignee predeceases him or her. If the 

assignment of the insurance is to two or more 

persons, the insured must specify percentage 

shares, rather than dollar amounts or types of 

insurance, to go to each assignee. 

Once insurance is assigned, the assignee to 

whom the insured transfers FEGLI ownership 

may, for the insurance assigned to him or her: (1) 

designate beneficiaries, (2) convert the insurance 

to an individual policy if the insured's eligibility 

for group insurance ceases, and (3) cancel the 

insurance or reduce the amount of coverage. 

When insurance is assigned to more than one 

person, these people must agree when exercising 

the right to cancel or reduce coverage. 

The assignor also continues to be 

responsible for premium payments 

The Federal employee or former employee 

(assignor) retains the right to elect new insurance 

coverage, though all new insurance (excluding 

family optional insurance) is subject to an existing 

assignment. The assignor also retains the right to 

decide, at time of retirement or receipt of workers' 

compensation, to maintain more than the minimum 

percentage of his or her basic life insurance. The 

assignor also continues to be responsible for 

premium payments under the group policy. 

Premium payments will continue to be withheld 

from the assignor's pay, annuity, or compensation. 

An assignment is not to be confused with a 

designation of beneficiary under the FEGLI 

Program. A Federal employee or former 

employee may designate a person or legal entity to 

receive any FEGLI insurance payable at death. 

Designations of beneficiary do not convey any 

ownership rights under the insurance policy and 

can be changed by the Federal employee or former 

employee at any time. Upon assigning FEGLI 

coverage, however, the employee or former 

employee gives up the right to make a designation 

125
 
Life Insurance 

of beneficiary or change beneficiaries, and the	 assignee is responsible for keeping the 

assignee assumes those rights. employing office informed of his or her current 

address. For retirees, the "employing office" is 

An assignment is effective on the date the the administrator of the retirement system. For 

insured's employing office receives a properly retirees under the Civil Service Retirement System 

completed, signed, and witnessed assignment. and Federal Employees Retirement System, 

Each assignee and each beneficiary of an	 assignments should be sent to the U.S. Office of 

Personnel Management, Retirement Operations 

Center, Boyers, PA 16017-0440. 

Assignments must be made on OPM Form RI 

76-10, Assignment of Federal Employees' Group 

Life Insurance. Employees may obtain the form 

from their personnel offices, and annuitants from 

their retirement systems. 

Note: Until the enactment of Public Law 103-336 

on October 3, 1994, assignments of FEGLI 

coverage were limited to Federal judges. OPM 

will publish revised regulations in 5 CFR Part 874 

on the assignment of FEGLI coverage to include 

all Federal employees and former employees. 

126
 
FEGLI Statutory Provisions 

Section 8706(e) of title 5, United States Code, permits Federal employees and former employees to 

irrevocably assign their Federal Employees' Group Life Insurance coverage to another person. The statute 

provides: 

§8706. Termination of 

Insurance; Assignment of 

Ownership 

§8706. Termination of Insurance; Assignment of Ownership 

* * * * * 

(e) Under regulations prescribed by the Office, each policy purchased 

under this chapter shall provide that an insured employee or former 

employee may make an irrevocable assignment of the employee's or former 

employee's incidents of ownership in the policy. 

* * * * *