You Snooze, You Lose

Another divorced spouse fails to dot the I’s and cross the t’s and finds herself without a survivor’s annuity from her ex’s federal pension.

Over the years, FedSmith has written up numerous cases where a spouse fought in vain to receive a survivor annuity, only to be foiled by how the federal employee did or did not fill out the required paperwork with the Office of Personnel Management. Here is another recent example. (Mae Siders v. Office of Personnel Management (CAFC No. 2013-3103 (nonprecedential), 10/11/13))

Mae Siders and her Federal employee husband were divorced after 27 years of marriage. The divorce decree referenced a property settlement agreement that said Mae would receive “fifty percent (50%) of [her husband’s] United States Post Office pension if, as, and when he receives such pension.” (Opinion p. 2) When Mae applied to OPM a couple of months later to begin receiving her fifty percent, the agency pointed out that her ex-husband had not yet retired, and that the court order made “no reference to a survivor annuity award…” and therefore she was not entitled to her fifty percent. (p. 2) OPM went on to point out that she could get an amended court order, as long as her ex-husband was not yet retired, that ordered up a survivor’s annuity for her.

Several years later the ex-husband died while still a federal employee. Mae once again applied for her survivor’s annuity, telling OPM that her entitlement to it was “on record at OPM.” (p. 3) Unfortunately, she had apparently never followed OPM’s advice to go back to court and seek an amended court order and OPM denied her application. Undaunted, she went back to the state court seven years later to remedy the situation. The application was billed as a “clarification” of her entitlement to survivor annuity benefits from her ex. The state court granted the request, amended its earlier language as requested, and made its order retroactive to the original order. (p. 3)

Once more Mae sent her application into OPM.  Once more OPM denied her claim. Obviously ever the optimist, Mae tried again. She asked OPM to consider the amended court order. OPM, after taking all the events into account one more time, again denied Ms. Siders’ application for a survivor’s annuity.

The Merit Systems Protection Board denied her appeal. The judge upheld OPM, explaining that the original divorce decree had been “silent on the question of a survivor annuity” and the later amendment to the decree carried no weight because it happened after the death/retirement of her ex-husband.

Ms. Siders took her arguments to the appeals court where she has now come up empty. The court points out that there is a strict rule in these matters. In order to establish entitlement for a former spouse to a survivor annuity a court order or settlement agreement must do so “unambiguously.” (pp. 4-5) It is equally clear, according to the court, that such orders or agreements modified to try to create the survivor annuity must be made before the spouse employee dies or retires. (p.5)

Ms. Siders failed to heed OPM’s advice when she first contacted the agency and now finds herself out of luck on a survivor annuity.

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.