General Practice, Solo & Small Firm DivisionMagazine

 
Volume 17, Number 5
July/August 2000

Sample Order Dividing Employee's Civil Service Retirement Pension (Employee Not Retired)

QUALIFIED CIVIL SERVICE ORDER

THIS MATTER

coming before the Court, Petitioner, John Doe, represented by [attorney]; Respondent, Jane Doe, represented by [attorney]; and the Court, having reviewed the pleadings and being otherwise advised, FINDS, ORDERS & DECREES:
  • This Court has jurisdiction over the parties and subject matter.
  • John Doe's federal civil service retirement benefits, Social Security No. xxx-xx- xxxx, whose date of birth is 1/15/51, shall be divided as set forth in this order.
  • This order shall be deemed a Qualified Order pursuant to 5 C.F.R. § 831-1704. This division of benefits is a division of community and marital property made pursuant to the law of [state].
  • John Doe and Jane Doe were married on 8/8/75, and divorced by Final Decree of Dissolution of Marriage filed on 4/1/98. The parties have a community and marital property interest in civil service retirement benefits earned in the name of John Doe.
  • Jane Doe's Social Security Number is yyy-yy-yyyy, and her date of birth is 12/3/52.
  • John Doe has served 20 years, 7 months in the civil service during the marriage. His service computation date is 9/30/77.
  • The parties' total community and marital property interest in John Doe's retirement benefits is a pro rata share of the annuity earned during the parties' marriage.
  • John Doe has had an average pay of $84,313 during the last three years of marriage.
  • Jane Doe is entitled to a direct payment on a monthly basis of a percentage of John Doe's civil service retirement, based on the following formula:

d = ab ÷ 2c, where:
a = Participant's gross before reduction for survivor annuity coverage as of the date of divorce
b = total number of months of creditable civil service employment of Participant during marriage
c = total number of months of creditable civil service employment of Participant
d = amount of monthly retirement benefits to be paid to Alternate Payee
  • Jane Doe shall receive direct payment of her benefits from the Office of Personnel Management, United States Civil Service, as provided in this order.
  • Benefits provided to Jane Doe by this Order shall include cost-of-living benefits in proportion to the formula in paragraph 9.
  • Both parties should receive any accounting or data provided by the United States government indicating how this payment was calculated.
  • Declaration of withholding and payment of taxes on the payment to each party shall be in accordance with the regulations and rules of the United States Internal Revenue Service, and shall be the responsibility of each party with respect to his/her benefit.
  • Jane Doe shall be designated as the permanent beneficiary of her pro rata share of survivor or surviving spouse benefits available under John Doe's Civil Service Retirement in accordance with the formula of apportionment in paragraph 9. John Doe shall designate Jane Doe as his surviving spouse. Any costs associates with the survivor benefit shall be borne by Respondent, Jane Doe, and deducted from her share of the monthly benefit she receives. The distribution to John Doe shall be unaffected by the election for survivor benefits.
  • In the event there is a delay in making payment because of review, ascertainment of qualification of this Court Order, or protest, amounts due to Jane Doe should be set aside for the benefit of Jane Doe and paid over to her.
  • Each party shall keep the Office of Personnel Management informed of changes of residential address and telephone numbers. John Doe's present mailing address is: __________; telephone number _______. Jane Doe's present mailing address is: __________; telephone number _______.
  • [OPTIONAL LANGUAGE] There is no just reason for delay of entry of this Order as a final judgment as to the issues raised in this Order, except for acceptance of this Order by the United States government. The parties have expressly waived any right to dismiss for lack of prosecution on this issue pursuant to SCRA 1986, 1-041 (State of New Mexico rule of procedure).

[I routinely include the following provisions in QDROs when I represent the Alternate Payee. This language has not been rejected by the Office of Personnel Management or the federal Thrift Savings Board when I have included it in orders dividing federal retirement benefits. The language is not required by the federal government, but I recommend including it to better protect the Alternate Payee.]
  • Anti-circumvention Provisions:
  • Constructive receipt: In the event the Plan Administrator inadvertently pays to the Participant any benefits that are assigned to the Alternate Payee pursuant to the terms of this Order, the Participant shall immediately reimburse the Alternate Payee to the extent that he has received such benefit payments, and shall forthwith pay such amounts so received directly to the Alternate Payee within ten (10) days of receipt.
  • Continued jurisdiction: This Court shall retain jurisdiction with respect to this Order to the extent required to maintain its qualified status and to enforce the original intent of the parties as stipulated herein. The Court shall also retain jurisdiction to enter such further orders as are necessary to enforce the assignment of benefits to the Alternate Payee as set forth herein, including the recharacterization thereof as a division of benefits under another plan, as applicable, in the event that the Participant fails to comply with the provisions contained above requiring said payments to the Alternate Payee.
  • Actions by participant: The Participant shall not take any actions, affirmative or otherwise, that can circumvent the terms and provisions of this Qualified Civil Service Order, or that could diminish or extinguish the rights and entitlements of the Alternate Payee as set forth herein. Should the Participant take any action or inaction to the detriment of the Alternate Payee, he shall be required to make sufficient payments directly to the Alternate Payee to the extent necessary to neutralize the effects of his actions or inactions and to the extent of her full entitlements hereunder.
  • Notice of pending retirement: Pursuant to the terms of this Order, the Alternate Payee shall be required to commence her share of the benefits no later than the Participant's actual date of benefit commencement. Therefore, the Participant shall be required to notify the Alternate Payee, in writing, at least thirty (30) days prior to his actual date of retirement. Such notice shall indicate his intentions to retire and his elected benefit commencement date. The notice shall be sent via regular, first class mail. For this purpose, the Alternate Payee shall notify the Participant of any changes in the Alternate Payee's mailing address.

__________________________________________
HON. JAY JUSTICE
District Court Judge

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