Question (by e-mail): As a federal employee, I had no idea when my wife of 22 years left me that the federal retirement and health care issues at divorce would be so complex. But even worse was the fact that my divorce lawyer had no clue about these matters and, despite running up quite hefty bills on me, he botched up everything and cost me a bundle. I have seen you write about the complexity of military retirements, but what about those of us who work for the federal government who are unfortunate enough to get divorced and be unable to find lawyers capable of dealing with our retirement and health care issues?
Answer: There is no question but that most federal employees – and, for that matter, many state employees -- are surprised, or we should say shocked, to learn that their retirements are treated as marital property at divorce. And the vast majority of those who understand this are confused about what the rules are. Well-intentioned, but ill-informed co-workers and personnel office staffers are frequent sources of misinformation.
By the same token, we have found that quite a number of matrimonial attorneys are surprised to learn that Qualified Domestic Relations Orders (QDRO's) about which we hear so much are not used to divide federal or state retirements because these plans are not covered by the Employee Retirement Income Security Act (ERISA).
What are some of the federal retirements? There are the "Uniformed Services" retirements which include Air Force, Army, Navy, and Marine Corp – active, retired, reserve, and guard. We also have Coast Guard, and Public Health Service. Then there are Civil Service Retirement System (CSRS), Federal Employees' Retirement System (FERS), Thrift Savings Plan (TSP), and Law enforcement which includes ATF (Alcohol, Tobacco, and Firearms), FBI, Secret Service, US Marshals, Foreign Service, and CIA.
To make matters worse, there are wide variances in how the various federal plans look at the same topic. For example, when it comes to the methodology of dividing the retirement, some plans are flexible, while others are rigid. Some have special jurisdictional requirements, while others do not. Some permit the division of retirement disability, while others do not. Some limit the maximum possible award to 50% even with an agreement, while others have no limit. Some terminate the rights of the non-employee spouse upon remarriage, while others do not. Some limit payments unless there is a ten-year overlap of marriage and career, while others do not. Some provide generous post-divorce health benefits for the non-employee spouse, while others are restrictive. Some require reversion of the non-employee spouse’s benefit to the employee if the non-employee spouse dies first, while others permit, but do not require, this.
That’s why attorneys who represent either the federal employee/retiree or spouse in divorce cases have big responsibilities to make sure the legal work is accomplished expeditiously and correctly. But those who represent these folks only infrequently and do not know how to handle these matters are in big trouble. Bottom line: In dealing with these complex issues, lawyers can either become their own expert or seek out and accept the assistance of those who understand the "ins and outs" of these types of cases. Lawyers who think they can bluff and stumble their way through this process will probably find a it time-consuming trek that can become a "six figure malpractice trap" because survivor benefits can easily have a value in this range.
When lawyers choose to handle these issues themselves, they must first understand the mechanics of the retirement plan in question, and become knowledgeable about the statutes and regulations that govern the division of the plan as a marital asset. Then they must be able to communicate with the personnel office that deals with the plan with which they are dealing. Unfortunately, logic and common sense have little to do with following the rules that are controlled by the legislation, implementing regulations, and making sense of the differing interpretations placed on the legislation by state and federal courts.
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Jan Collins is an award-winning writer and editor. Jan Warner is a matrimonial, elder, and tax attorney. Both are based in Columbia, South Carolina. Flying Solo is distributed to newspapers throughout the United States by Knight-Ridder Tribune News Service and can be found on the Internet at http://www.flyingsolo.com.
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