MSPB rules on divorce, retirement

The Merit Systems Protection Board (MSPB) recently reviewed a case involving the rights of a former spouse to a fed's retirement annuity. This case will be of interest to all readers.The two were divorced on Nov. 10 1987 in Montgomery County Md. The divorce agreement contained provisions on the wife's entitlement to annuity benefits that might be granted to her former spouse in the future.

When the court order spelling this out was submitted to the Office of Personnel Management in 1988 OPM advised the wife's attorney that it would not make a determination on the court order until Thomas retired.When he did retire in January 1994 the husband designated his second wife to receive survivor benefits. OPM then notified him that it had received a court order stipulating that his first wife was entitled to a survivor annuity and that OPM intended to honor the order.

The husband appealed to the MSPB where an administrative law judge affirmed OPM's position. The judge determined that the court order governing the Hahns' divorce specifically provided for a survivor annuity for Thomas' first wife and that there was no time limit on that provision.

The husband argued that the separation agreement contained a stipulation concerning a survivor annuity but that the divorce agreement did not. Consequently he asked the full MSPB to review his case.

In doing so the full board noted that a former spouse can be entitled to survivor annuity benefits "if and to the extent expressly provided for in the terms" of any court order or court-approved property settlement incident to any court decree of divorce. But it had interpreted previous case law as precluding the MSPB or OPM from determining spousal entitlement based on "uncertain or ambiguous" state court orders.

In this case the MSPB said the separation agreement contained unclear and ambiguous language on the duration of the survivor annuity rights granted the first wife.

Because Congress intended to provide state courts with the ability to award survivor's benefits the MSPB ruled that it should not contravene that goal by allowing OPM or the board to interpret ambiguous court orders. Therefore the full MSPB reversed the administrative law judge's decision supporting OPM's decision to award benefits to Hahn's first wife. The only course of action open to her is to take this issue to the U.S. Court of Appeals.

This outcome is vexing. The MSPB is saying that neither OPM nor the MSPB has the right to interpret a state court's decision that is construed as. If that is true then who does have the right to clarify ambiguous decisions? If a court decision is deemed ambiguous can it be ignored?

Apparently that is what the MSPB is saying in this case. It basically overruled OPM's decision to award benefits to Hahn's first wife. In effect the MSPB has entirely negated the decision rendered by the divorce court.

I think this case is a travesty of justice and I hope the court of appeals will rectify it.v

Bureaucratus is a retired federal employee who is a regular contributor to Federal Computer Week. This column can be read on FCW's World Wide Web page at www.fcw.com.

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