Wording of Divorce Decree Trips up Claim for Survivor Benefits

The appeals court has shot down yet another application for a survivor annuity from a divorced spouse of a federal employee in Booker v. Office of Personnel Management (CAFC No. 2014-3106 (nonprecedential) 9/15/14)

Sylvia was married to Carroll Booker for 18 years. When they divorced, the court’s decree said “Ms. Booker is to receive her division of Mr. Booker’s pension, IRA’s, retirement and 401(K)’s…. at the time of the first party’s retirement.” (Opinion p. 2)

However, Mr. Booker did not have a chance to retire before he died, so there was no annuity. Shirley applied to Office of Personnel Management for survivor benefits, citing the divorce decree. OPM denied her claim and the Merit System Protection Board sustained that decision. The MSPB held the divorce decree simply had no language that could be construed as providing Shirley with a survivor annuity, pointing out it “did nothing more than divide the decedent’s retirement annuity, which he never had the chance to receive and which would, in any event, cease upon his death.” (p. 2)

The appeals court has sided with OPM and MSPB. First, there was no retirement since Mr. Booker was still an employee when he died. Second, regulations are clear that the divorce decree must identify the retirement system and “expressly state that the former spouse is entitled to a former spouse survivor annuity using terms like ‘survivor annuity,’ ‘death benefits,’ or ‘former spouse survivor annuity under 5 U.S.C. 8341(h)(1).’ “ (pp. 3-4)

In Mrs. Booker’s case these requirements were simply not met, the Board did not err, and Mrs. Booker “cannot relay on the excuse that neither the judge nor the parties knew that the divorce decree was required” to be more specific. (p. 4)

In sum, Mr. Booker receives no benefits from her ex husband’s status as a federal employee.

This case underscores the importance of making sure that one’s divorce attorney is fully cognizant of the ins and outs of applicable federal regulations when one of the parties to the divorce is a federal employee or annuitant.

Booker v. OPM (2014-3106)

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

About the Author

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.

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