Who Will Get the Benefit of Your Retirement Annuity?

By on August 24, 2007 in Current Events, Retirement with 0 Comments

Understanding personal relationships can be difficult. In an ideal world, two people fall in love, get married and live in relative happiness until the end of their lives. But, of course, many marriages do not fit this pattern. And, with complex relationships, and the prospect of a federal employee’s retirement pension that would provide a steady income for many years dangling in front of a former spouse, there is often plenty of work for lawyers and administrators to try and straighten out the residue of these complex relationships.

Here is one example of how complex relationships, and a federal retirement annuity, can become. (Patsy S. Painter v. OPM, 2007 MSPB 189 (August 16, 2007))

A couple who married in 1954 decided to get a divorce in 1979. Norba Painter was a federal employee and he retired under the Civil Service Retirement System (CSRS) in 1986. In 1996, Mr. Painter remarried the woman he had divorced in 1986. At that time, Mr. Painter requested that the Office of Personnel Management reduce his annuity to provide a maximum survivor annuity. This became effective on February 1, 1997.

No doubt, the relationship was stormy. The couple got another divorce in 1998. The court order dissolving the marriage did not award the former Mrs. Painter a former spouse survivor annuity.

Mr. Painter contacted OPM in 1999 and cancelled his election for a survivor annuity, presumably so that he could get a bigger retirement check each month. His request was granted and he began getting the bigger check.

Mr. Painter died in 2005. Then the complex personal relationship spilled over into the federal bureaucracy and the situation became even more convoluted.

The former Mrs. Painter applied for a former spouse survivor annuity and for death benefits now that the man she had been married to a couple of times had passed away. OPM denied her request for benefits.

An administrative judge found that the 1998 divorce decree did not expressly award a former spouse survivor annuity. The AJ also found that a subsequent court order issued in September 2006 dividing the parties’ property and awarding the appellant a former spouse annuity was ineffective as it was issued after Mr. Painter’s death.

Obviously, a request to start receiving the federal largesse each month required a legal hook. In this case, the former spouse contented that the Office of Personnel Management had not offered any evidence to prove that: Mr. Painter received the statutory annual notice of his right to elect a former spouse survivor annuity after his December 11, 1998 divorce.

In its decision, MSPB noted that OPM has the burden of proving both that it sent the annual notice and that any such notice was adequate to inform the annuitant of the specific election requirements. And, opined the MSPB, "A notice regarding election of former spouse survivor benefits is insufficient if it does not "stat[e] that a pre-divorce election automatically terminates upon divorce and that an annuitant must make a new election to provide a survivor annuity for a former spouse."

In effect, the legal hook may eventually work. The case was sent back to OPM because OPM did not show that it sent the annual notice to Mr. Painter and that Mr. Painter was sufficiently put on notice that he had to make a new election to provide a survivor annuity for the woman he had twice divorced.

Does it really make any difference? It does.

A former spouse may receive survivor annuity benefits even if the federal pensioner did not select the survivor annuity if (1) the annuitant did not receive the required notice, and (2) "there [is] evidence sufficient to show that the retiree intended to provide a survivor annuity for the former spouse.

But what about the fact that Mr. Painter had requested the bigger annuity check and had started to get the extra money each month? Apparently OPM did not provide evidence of its contentions to the MSPB so one reason for the remand is to sort out the remnants of this aspect of the case.

And, as might be expected, the case does not end with the financial interests of the former couple. Somewhere along the way, Mr. Painter had several children. So, according to the MSPB decision, "because the interests of Mr. Painter’s three children may be directly affected by the outcome of this appeal on remand…they should be afforded an opportunity to intervene in the appeal."

© 2016 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources.