A federal employee getting divorced hears a lot of things about what their retirement is going to look like after the decree. Most of what they hear is at least partly wrong. Divorce courts don’t divide federal pensions the way they divide a savings account. There are federal statutes and OPM regulations in the middle of the conversation, and those rules override whatever the state-court decree says it wants.

The two things a divorce decree can do to a FERS retirement are: (1) award a former spouse a court-ordered portion of the marital share of the annuity, and (2) award a former spouse a survivor annuity. Each requires specific language and specific procedures, and a decree that gets either piece wrong usually means the former spouse ends up with nothing.

What the court can take: the marital share.

Under 5 U.S.C. § 8345(h), a state court can divide the marital share of a FERS annuity by issuing a court order that meets the requirements of the statute. The marital share is the portion of the annuity that accrued during the marriage. A typical formula divides the gross annuity by months of creditable service, then multiplies by months of overlap with the marriage.

The maximum the former spouse can receive is 50% of the gross FERS annuity, and that 50% cap applies to the combined total of all payments to the former spouse — including any former-spouse survivor benefit that is also awarded.

OPM will only honor the court order if it is filed properly, served on OPM, and meets the statutory requirements: identification of the employee, the former spouse, the amount or formula of the division, and a finding that the decree addresses the federal retirement. A state-court decree that awards “a fair share of the federal pension” without more is not enforceable against OPM.

What the court can grant: the former-spouse survivor benefit.

Separately, a court can order the retiree to elect a former-spouse survivor annuityat the time of retirement. This is a continuing benefit payable to the former spouse after the retiree’s death, and it is created by the court order, not by the retiree’s voluntary election.

The former-spouse survivor benefit can be up to 50% of the retiree’s gross annuity, but it counts against the same 50% cap that applies to the marital-share division. A retiree whose decree awards 50% of the annuity to the former spouse cannot also have a 50% former-spouse survivor benefit — the combined total cannot exceed 50% of the gross annuity.

The court order awarding the survivor benefit must be received by OPM before the retiree’s annuity begins. Once the annuity has started, the window to file the qualifying court order for the survivor benefit is closed.

The two orders are different documents.

This is the part that confuses most federal employees in the middle of a divorce: the marital-share division and the former-spouse survivor benefit are not the same thing and they don’t ride on the same paperwork.

  • The marital-share division is enforced by a court orderserved on OPM that meets the requirements of 5 U.S.C. § 8345(h)(2). It directs OPM to pay a portion of the monthly annuity directly to the former spouse.
  • The former-spouse survivor benefit is created by a qualifying court orderthat meets the requirements of 5 U.S.C. § 8341(b). It directs the retiree to elect a survivor benefit for the former spouse at the time of retirement, and the retiree cannot decline.

A divorce decree that conflates the two, that uses generic language about “splitting the pension,” or that fails to identify the federal retirement explicitly, will not survive OPM’s review. The former spouse’s attorney should be familiar with the federal-specific language, and the retiree’s attorney should be too.

What the court cannot do.

A state court cannot order OPM to divide a TSP account directly. TSP has its own procedures, which require a retirement benefits court order drafted to meet the requirements of the TSP statute. A divorce decree alone does not reach TSP funds; a separate qualifying order is required.

A state court cannot order OPM to pay a former spouse more than 50% of the gross annuity in combined benefits. The cap is statutory, and OPM will not pay over it regardless of what the decree says.

And a state court cannot reach FEGLI proceeds or the FERS Special Retirement Supplement, except through their own beneficiary rules. Those are separate from the basic FERS annuity and have their own order requirements.