A recent decision upheld OPM’s (Office of Personnel Management) decision to honor a divorce court’s order to pay a portion of a retiree’s civil service annuity to his two adult children following his ex-wife’s death. (DeSanto v. Office of Personnel Management, C.A.F.C. No. 2010-3049 (nonprecedential), 3/5/10)
Mr. DeSanto had been married thirty years when he retired from the federal government. About a year after his retirement, he divorced his wife. The decree granting the divorce awarded the ex-wife 41 percent of Mr. DeSanto’s annuity. It also ruled that should she die before Mr. DeSanto, the ex-wife’s share of his annuity "shall" be paid in equal shares to her surviving two children.
Once it received this divorce decree, OPM told Mr. DeSanto that they would honor it. He questioned and got OPM to correct its calculation of the ex-wife’s share, but did not otherwise challenge the divorce decree.
When his ex-wife died some twenty years later, Mr. DeSanto asked OPM to resume paying his full annuity to him. OPM refused and paid the ex-wife’s share to the two living children as directed by the divorce decree.
Mr. DeSanto was unsuccessful in his appeal to the Merit Systems Protection Board, so he took his argument to the federal appeals court.
In finding that the MSPB was correct in upholding OPM’s decision, the appeals court rejected DeSanto’s argument that OPM regulations permit annuity payments to children only if they are less than18 years of age. In short, the OPM determined that the divorce decree was valid, and the court saw no reason to disagree with the agency’s findings and determination.
Presumably the children will continue to split the 41 percent of dad’s annuity until he dies and the annuity is therefore no longer payable.
Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.