Modified Divorce Ruling Handed Down Before Retirement Must Be Considered In Deciding Survivor Annuity

In yet another case involving the current wife and ex-wife fighting over a federal retiree’s survivor’s annuity, the appeals court finds error in handling by OPM and MSPB and bounces the case back for another round. See why.

This latest case is yet another example of the need to get the words right when a federal employee and spouse divorce. (Smith v. Office of Personnel Management, CAFC No. 2014-3084 (nonprecedential) 8/20/14)

Briefly here are the facts as explained in the court’s decision. The principals are Paul Marshall, federal employee, ex-wife Arlene Smith, and Martha Marshall, Paul’s wife at the time of his death. (For simplicity’s sake, “Paul,” “Arlene” and “Martha”).  Arlene and Paul divorced in 1987 while he was still an active federal employee. The divorce court issued a ruling in 1987 dividing up the property; in 1999 a court modified that earlier order. The court does not give any details as to what these decrees said insofar as Arlene getting part of Paul’s annuity as a surviving spouse. In 2005 Paul retired and died a year later, having at some point married Martha.

After Paul’s death, Arlene applied for an annuity as Paul’s former spouse, citing the 1987 divorce decision. In 2013 an administrative judge concluded that under the 1987 divorce ruling Arlene was entitled to survivor annuity. But the AJ ordered Office of Personnel Management to consider what effect, if any, the 1999 divorce order modification had had on the earlier divorce decree between Arlene and Paul. At this juncture Martha intervened in the case and sought to deny the annuity for Arlene.

The full Merit Systems Protection Board reversed the AJ’s ruling, finding that the 1987 court order did not in fact grant Arlene a survivor annuity and that the Board therefore need not consider the 1999 order’s effect. Arlene took her case to the appeals court.

Not so fast the appeals court now tells MSPB.  Because the 1999 divorce order pre-dated Paul’s retirement it was error not to consider that order as well as the 1987 order. Since neither OPM nor the MSPB has specifically looked at the effect of the 1999 order on the earlier order, this must be done before finally determining whether Arlene gets a survivor annuity.

Smith v. OPM (2014-3084)

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.