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Interim Final Rule: Civil Service Retirement Spouse Equity Act of 1984

AT-85-09

Published: June 6, 1985
Information About:
State/Local Child Support Agencies
Topics:
Case Management, Enforcement, Employer Responsibilities
Types:
Policy, Action Transmittals (AT), Regulations
Tags:
Social Security Benefits

OCSE-AT-8509

June 6, 1985

Civil Service Retirement Spouse Equity Act of 1984

INTERIM FINAL REGULATION

ACTION TRANSMITTAL

OCSE-AT-85-9

June 6, 1985

TO: STATE AGENCIES ADMINISTERING CHILD SUPPORT

ENFORCEMENT PLANS UNDER TITLE IV-D OF THE SOCIAL SECURITY ACT AND OTHER INTERESTED INDIVIDUALS

ATTACHMENT: Attached are interim final regulations with a comment period issued by the Office of Personnel Management (OPM) to implement P.L. 98-615, the Civil Service Retirement Spouse Equity Act of 1984. We wish to direct your attention to 5 CFR Part 831, Subpart Q, "Court Orders Affecting Civil Service Retirement Benefits." This subpart requires OPM to comply with qualifying court orders, decrees, or court-approved property settlements in connection with divorces, annulments of marriage, or legal separations of employees, Members of Congress, or retirees that award a portion of a former employee's or Member's retirement benefits or a survivor annuity to a former spouse. The amount awarded to a former spouse may include an amount for child support and/or alimony.

EFFECTIVE

DATE: May 7, 1985

COMMENT

PERIOD: Consideration will be given to written comments and suggestions received by Jean M. Barber, Assistant Director for Pay and Benefits Policy, Compensation Group, P.O. Box 57, Washington, DC., 20044, on or before July 12 1985.

REGULATION

REFERENCE: 5 CFR Part 831

INQUIRIES

TO: OCSE Regional Representatives

_____________________________

Deputy Director

Office of Child Support

Enforcement

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 831

Retirement; Interim Rule with Request for Comments

AGENCY: Office of Personnel Management.

ACTION: Interim rule with request for comments.

SUMMARY: The Office of Personnel Management is issuing interim rules requesting comment on the rules to and implement the Civil Service Retirement Spouse Equity Act of 1984. The interim rules also incorporate current regulations concerning the subjects covered by the Act, specifically civil service retirement survivor annuities, court orders affecting civil service retirement benefits, and lump-sum payments under the civil service retirement system.

DATE: Interim rules effective May 7,1985; comments must be received on or before July 12, 1985.

ADDRESS: Send comments to Jean M. Barber, Assistant Director for Pay and Benefits Policy, Compensation Group, P.O. Box 57, Washington, D.C. 28044, or deliver to OPM, Room 4351, 1900 E. Street, NW., Wash., D.C.

FOR FURTHER INFORMATION CONTACT:

Harold L. Siegelman, (202) 632-4684, on provisions relating to survivor annuities and court orders affecting retirement benefits. Contract Francis J. Derby, (202) 632-4634, on provisions relating to lump-sum payments.

SUPPLEMENTARY INFORMATION: The Civil Service Retirement Spouse Equity Act (CSRSEA) of 1984, Pub. L. 98-615, amended the Civil Service Retirement Act (1) to require a joint waiver by annuitant and spouse of survivor benefits at the time of retirement; (2) to require that we recognize court orders granting survivor benefits to former spouses of Federal employees and retirees; (3) to require notice before payment of lump sum refunds of contributions to the Civil Service Retirement System be given to some current spouses and former spouses entitled to survivor benefits, or a portion or an annuity. or a portion of the refund; (4) to provide that Federal retirees may elect survivor annuity for former spouses; (5) to provide that certain Federal retirees who were previously denied the option of providing survivor benefits to their current spouses will be permitted to provide such benefits; and (6) to provide survivor benefits payments to certain former spouses of Federal retirees who were divorced prior to the effective date of this legislation.

CSRSEA generally does not apply in the case of retirements or divorces before its effective date (May 7, 1985). However, under CSRSEA, some former spouses of annuitants who retire or died before the effective date of the Act will be eligible for a survivor benefit, which will not affect the annuity of the retired employee or Member. To qualify, the former spouse must: (1) Have been divorced after September 14, 1978; (2) not have remarried before age 55; (3) have been married to the annuitant during 10 years of creditable service; (4) be age 50 or older; (5) not be entitled to any other pension (other than benefits under title II of the Social Security Act or section 8345(j) of title 5, United States Code); and (8) apply for the benefit before May 8, 1987.

The interim regulations implementing CSRSEA apply primarily to persons who die in service on or after May 7, 1985, or retire on or after that date. Unless otherwise specified in the interim regulations only §§ 831.609 through 831.611, 831.615, 831.616, 831.619 through 831.624, and 831.627 and the portions of Subpart Q concerning court orders affecting employee retirement benefits apply to persons retired before May 7, 1985.

1. Consolidation of Existing Regulation

The current subpart F is entitled "Types of Annuities." The interim regulations consist of a new Subpart F entitled "Survivor Annuities," which consolidates the current Subpart F, portions of Subpart J that regulate survivor annuities, and new regulations necessitated by the portions of CSRSEA that control entitlement to survivor annuities (without court orders).

The current Subpart J is entitled "Death Benefits." It has information about survivor annuities that belongs with Subpart F and information about lump-sum death benefits that belongs in Subpart T. This new format eliminates Subpart J by consolidating its provisions into Subparts F and T.

The current subpart Q is entitled "Apportionment From Civil Service Retirement Benefits." It implemented Pub. L. 95-366 (Sept. 15, 1978), which requires us to comply with certain State court orders which divide civil service retirement benefits payable to the former Federal employee during his or her lifetime. We are issuing a new Subpart Q, entitled "Court Orders Affecting Civil Service Retirement Benefits," which amends the current Subpart Q to incorporate the changes in handling State court orders on refunds and survivor annuities required by CSRSEA.

The current Subpart T is entitled "Payment of Lump Sums." It regulates payment of lump-sum benefits under the Civil Service Retirement System. The interim rules consolidate the current Subpart T, portions of Subpart J that cover lump-sum payments, and the changes required by CSRSEA into a revised Subpart T that retains its current title.

2. Survivor Annuities

The Terms "fully reduced annuity," "insurable interest annuity," "partially reduced annuity," and "self-only annuity" are used to describe benefits that are payable to former employees and Members. "Current spouse annuities" and "former spouse annuities" are defined as payable to survivors of former employees and Members. The definition of "marriage," although never before promulgated in our regulations, has been used by us in our adjudications relative to survivor benefits since 1979.

"Time of retirement" is defined as the date when a retiree's annuity commences. We considered using the date of separation from the Federal service as the time of retirement. However, employees can separate with title to a deferred annuity many years before they are eligible to begin receiving payments. Using the date of application would cause administrative difficulties because people can file applications before or long after becoming eligible for benefits.

Section 831.604(b) of the interim regulations applies to cases when a former spouse by a court decree has preempted the current spouse annuity under section 8341 of title 5, United States Code. Under these regulations: (1) A qualifying court order that awards a former spouse annuity will require an appropriate reduction in the retiree's annuity (regardless of any election to provide a current spouse annuity); (2) the retiree must make an election regarding the current spouse's survivor annuity at the time of retirement (even though that annuity has been wholly or partially preempted by a court-ordered former spouse annuity); (3) the current spouse's consent must be given (or waived) to permit a retiree to elect less than a fully reduced annuity to provide a current spouse annuity; (4) in the event of the retiree's death, payment of the current spouse annuity will be wholly or partially prevented as long as the former spouse remains eligible for a former spouse annuity.

The reduction in annuity to provide a current spouse annuity under § 831.804 terminates in accordance with the new section 8339(j)(5) of title 5, United States Code. The conditions under which the reduction is terminated are consistent with those provided under the prior section 8339(j)(1) of title 5, United States Code. Generally, the reduction will terminate upon the death of a current spouse for whose benefit the reduction was made or upon dissolution of the marriage to that spouse. Even if the latter condition is met, a reduction will not be terminated when that spouse has acquired entitlement (in the dissolution decree or by election under § 831.812) to a survivor benefit as a former spouse under the new section 8339(j)(5)(A) of title 5, United States Code.

Section 831.605 implements the new sections 8339(j)(3) and (5) of title 5, United States Code, which permits an employee or Member to elect to provide a survivor annuity for a former spouse or spouses at the time of retirement.

Section 831.606 regulates insurable interest annuities under the amended section 8339(k)(1) of title 5, United States Code. Under prior law, only an employee or Member who was unmarried at the time of retirement could make an election to provide an annuity for an individual who had an insurable Interest in the employee or Member. Section 8339(k)(1), as amended by CSRSEA, extends this election to married individuals as well.

Section 831.606(a) restates the requirement of section 8339(k)(1) that only a person in good health and retiring on an immediate annuity under section 8336 of title 5, United States Code, or a deferred annuity under section 8336 of title 5, United States Code, is eligible to elect an insurable interest annuity. Persons retiring on disability annuities under section 8337 of title 5, United States Code, are excluded by statute.

Section 831.606(e) promulgates as a regulation our long-standing internal guidelines concerning the degree of relationship that would automatically constitute an insurable interest. Section 831.606(e) also permits us to require documentation of the beneficiary's age that is necessary to compute the rate of reduction.

Because of the large reduction frequently required (up to 40% of the self only annuity) to elect an insurable interest election, our policy has been to require a written confirmation of election after the retiree has been informed by us of the amount of the reduction. Section 831.606(f) requires that confirmation in all such cases.

Within 2 years after the death or remarriage before age 55 of the former spouse for whom a retiree is providing a former spouse annuity, § 831.606(h) permits a retiree to end an insurable interest reduction elected to provide for a current spouse in order to elect a reduced annuity to provide a current spouse annuity. The conversion will provide a survivor annuity at a lower cost to the retiree than maintaining the insurable interest annuity. However, if the retiree elects to convert, he or she may not thereafter reinstitute the insurable interest annuity to provide for someone else. After conversion of the insurable interest annuity, the aggregate of all survivor annuities cannot exceed 55 percent of the retiree's annuity.

Section 831.606(i) provides that a similar election is not permitted in the reverse situation. Although revised section 8339(j)(5)(B) of title 5, United States Code, authorizes continuation of an annuity reduction to provide a former spouse annuity (after the death or remarriage of the former spouse) for the purpose of providing a current spouse annuity, nothing in CSRSEA authorizes a corresponding continuation to benefit a former spouse after the death of a current spouse.

Section 831.606(j) is the old 831.601(b).

Section 831.607 implements the spousal consent requirement discussed in connection with § 831.604. Section 831.607(c) imposes a notarization requirement to discourage forged or coerced consent.

Section 831.608 presents the requirements for waiver of spousal consent. Section 2 of CSRSEA requires that we provide that a married employee may elect a self-only or a partially reduced annuity without the spouse's consent only when the spouse's whereabouts are unknown to the employee or, "due to exceptional circumstances" it would be "inappropriate" to require the employee to seek the spouse's consent. We are requiring in § 831.608(a) proof that the employee does not know the spouse's whereabouts before waiver can be granted on that ground. Waiver for exceptional circumstances (e.g., the spouse is suffering from diminished mental capacity, the spouse and the employee have been maintaining separate residences with no financial relationship for several years, the spouse abandoned the employee but, for religious or other reasons, the parties choose not to divorce) are permitted by § 831.608(b). However, before a waiver for exceptional circumstances is allowed, the regulations require documentation from a judicial body that substantiates the request for waiver. This procedure is necessary to guarantee that the current spouse receives due process before he or she loses the right to a survivor annuity without his or her consent.

Section 831.609 restates the rule of the old § 831.601(d), which permits a change of election until we complete the adjudication of the employee's or Member's retirement application. The standard for determining when we have completed adjudication is defined as 30 days after the date of the first regular monthly payment. This standard avoids the inconsistencies inherent in any standard that is controlled by a retiree's action, rather than our action. Under this rule, a retiree will have a reasonable period of time to change the survivor election after OPM has notified the retiree of the effect of the election by means of the annuity statement showing the adjudicated rate of the retiree's annuity as well as the survivor's rate.

Section 831.611 restates the old § 831.601(e).

Section 831.612 (a) and (b) implement the new section 8339(j)(3) of title 5, United States Code, which permits a retired employee or Member to elect to provide a survivor annuity for a former spouse within 2 years after the dissolution of the marriage to that former spouse. Section 831.612(c) implements the deposit requirement of section 8339(j)(3) of title 5, United States Code. Section 831.612(d implements the new section 8339(j)(5) of title 5, United States Code, that provides for termination of the annuity reduction.

Section 831.613 concerns "post-retirement" elections of survivor benefits for spouses acquired after retirement. Under the pre-CSRSEA law that continues to apply to annuitants who are retired before May 7, 1985, a married employee who elects to provide a survivor benefit at the time of retirement and an employee who is unmarried at the time of retirement may elect to provide a survivor annuity to a new spouse acquired after retirement. In such a case, the retiree had to make the "post-retirement" election within 1 year after the new marriage, and an annuity reduction is continued (or in the case of an employee who was unmarried at the time of retirement is commenced) upon the making of the election. Except as provided in section 4(c) of CSRSEA (implemented in § 831.623), an employee retired before May 7, 1985 married at the time of retirement who did not elect to provide a survivor benefit at retirement may not elect a survivor benefit in the event of a subsequent marriage during retirement. Also, in the event of a marriage during a retirement that commenced before May 7, 1985, the marriage must have lasted for at least 1 year before a survivor benefit election may be effective,

Section 831.613(a) sets the requirements for post-retirement elections for pre-CSRSEA retirees. Section 4 of CSRSEA provides that the retirement amendments made by section 2 will take effect May 7, 1985, and will apply to any individual who, on or after that date, is married to an employee who retires, dies, or applies for a lump-sum refund of contributions after that date. In other words, CSRSEA generally does not apply to persons retired before May 7, 1985. Accordingly, the prior law and regulations continue to apply to annuitants retired before May 7, 1985, for most purposes.

The 1-year time limit in § 831.613(a) (but not the requirement of an election before the retiree's death] can be waived when the retiree was not notified of the time limit in accordance with Pub. L. 95-317 and he or she exercised due diligence in seeking an annuity reduction to provide a current spouse annuity. This waiver is based on the Merit Systems Protection Board's decision in the case of Davies v. Office of Personnel Management, 5 MSPB 251 (1981).

Section 831.613(b) implements the CSRSEA provisions on post-retirement survivor elections. New subsections (j)(5)(C) and (k)(2) of section 8339 of title 5, United States Code, contain several changes, which apply to employees and Members who retire on or after May 7, 1985, or die in service on or after that date. First, the length of marriage requirement for eligibility for survivor annuity is reduced from 1 year to 9 months. Second, an employee married at the time of retirement who did not elect survivor benefits will be permitted to make such an election after a post-retirement marriage (provided that the marriage is not to the same spouse to whom the employee was married at retirement). The time limit for making the election is extended from 1 year following the remarriage or marriage, as the case may be, to 2 years.

Section 831.614 (a) and (b) state the general policy of CSRSEA that the total amount of survivor annuity benefits available will not be greater than under existing law. Generally, spousal survivor benefits attributable to the service of an employee or Member may not exceed 55 percent of that employee's or Member's annuity. The CSRSEA continues this policy but does permit this 55 percent to be divided between any former spouses and a current spouse and permits election of an additional insurable interest annuity in some cases.

Sections 831.615 and 831.616 are derived directly from current

§§ 831.601(g), 831.1005, and, 831.1006 without substantive change.

Section 831.617 on the rate of children's annuities result from the definitions of "former spouse" and "child" in section 8331 and 8341 of title 5, United States Code.

Section 831.618 states the marriage duration requirements before a survivor annuity right attaches based on a death of an annuitant who retired on or after May 7, 1985, or an employee or Member who died while employed in a position under CSRS on or after that date. Section 8341(a) of title 5, United States Code, as amended, provides that a spouse must be married to an employee, Member, or annuitant for only the 9 months immediately preceding death or be the parent of a child of that marriage to be eligible for a survivor annuity. Prior law (which continues to apply to annuitants who retired before May 7, 1985) required 1 year of marriage or a child born of that marriage. New section 8341(i) of title 5, United States Code, provides that the requirement that a surviving spouse of an employee or Member must have been married to an employee or Member for at least 9 months immediately before death should be deemed to be satisfied in any case in which the death was accidental or in which the surviving spouse previously had been married to the individual and the aggregate time married is at least 9 months. These statutory changes are reflected in § 831.618 (a) through (c).

Section 831.618(c) also adopts the reasoning of the recent decision of the Merit Systems Protection Board in Smith v. Office of Personnel Management, No AT0831841098, November 15, 1984. In that case, the Board determined that children born out of wedlock who were later legitimated by a marriage of their parents were children of the legitimating marriage for purposes of section 8341(a) of title 5, United States Code. The regulation extends this rule to legitimate children by prior marriages between the same parties. This accomplishes two objectives: (1) It prevents a parent of an illegitimate child from being more favorably treated simply because the child was born out of wedlock and (2) it furthers the policy of CSRSEA by treating children born of the marriage in the same manner as CSRSEA treated the length of the marriage, namely, by considering all time when the current spouse and the employee were married to determine whether the duration requirement has been met.

Section 831.618(d)(1) defines "accidental" for this purpose. All homicides are considered accidental. The definition applicable to non-homicide cases was taken from accidental death provision of the Federal Employees' Group Life Insurance Program except that death resulting from acts of war are not excluded from the § 831.618(d)(1) definition.

Section 831.618(d)(2) provides that we will accept certain State determinations of the cause of death. Judicial determinations such as the finding, in insurance litigation, that double indemnity is payable or, in a criminal case, that the death was a homicide are typical examples. An administrative finding from a coroner's inquest or similar proceeding is included. Lesser weight will be given to statements on the death certificate. However, without other evidence, the statement on the death certificate will be accepted as proof that the death was accidental.

Section 831.619(a) restates the general rule of the old § 831.1001. Section 831.820 restates the old § 831.1002.

Section 831.621 concerns the voluntary election to provide a former spouse annuity under section 4(b) of CSRSEA. Section 4(b) provides that a former spouse of an annuitant who retired before May 7 1985, is entitled to a survivor annuity if the annuitant elects in writing before May 9, 1986, to have his or her annuity fully reduced and to deposit in the Civil Service Retirement and Disability Fund amount reflecting the difference between the rate of a self-only annuity and the amount that he or she would have received if a reduction for the survivor annuity had been in effect since the annuity commenced. If a retired employee makes an election under section 4(b) but does not make the required deposit, we will collect the amount of the deposit by offset against the retiree's annuity up to maximum of 25 percent of the net annuity payable to the employee.

Former spouses who meet the requirements set forth in § 831.622 will receive 55 percent of the annuity of the retired employee plus cost-of-living adjustments after the death of the retiree. If a retired employee has more than one former spouse who falls within the class of former spouses qualifying under § 831.622, each qualifying former spouse will receive the full survivor annuity.

Paragraph (a)(1) implements the statutory requirement that the marriage must have been dissolved after September 14, 1978, the effective date of Pub. L. 95-366 authorized us to comply with certain State court orders dividing civil service retirement benefits.

Paragraph (a)(3) implements the statutory requirement that the former spouse must not be entitled to any other employer-provided retirement or survivor annuity. Social security benefits under title 42, United States Code, and court awarded benefits under section 8345(j) of title 5, United States Code, are specifically excluded by CSRSEA. In view of the unambiguous language of the statute, receipt of any other employer-provided retirement or survivor annuity, regardless how small, will disqualify a former spouse from receiving an annuity under this section notwithstanding remarks during the Senate's consideration of CSRSEA that only "substantial" employer-provided benefits should disqualify a former spouse from receiving a section 4(b) annuity. We believe that the statutory-language and the legislative history as a whole, including our consultations during the drafting of this legislation, support this interpretation.

Paragraph (b)(1) relates to the application requirement for the above former spouses. We will accept correspondence as an informal application for meeting the timeliness requirements. Any informal application must be followed by an application on the appropriate form.

We require documentary proof that the requirements regarding date of application are met, but accept the former spouse's certification on the application as proof that the other requirements are met.

Section 831.623 implements section 4(c) of CSRSEA that provides that aretiree who retired before May 7,1985, and who is married to a spouse acquired after retirement for whom the retiree was unable to provide a survivor annuity may provide a survivor annuity to the spouse if (1) the retiree was married at the time of retirement and elected not to provide a survivor annuity; or (2) the retiree-notified us of the post-retirement marriage more than 1 year after the marriage and we disallowed the attempt to elect a reduced annuity because it was untimely. Under these circumstances, the retiree may elect in writing, within 1 year after the date of enactment, to provide for a survivor annuity for the current spouse. The retiree must deposit in the Civil Service Retirement and Disability Fund an amount reflecting the difference between what the retiree had received and what would have been received if the election had been in effect since the retiree's annuity commenced. If the retired employee does not make such a deposit, we will collect the amount by offset against the retiree's annuity up to 25 percent of the net annuity. The retiree may change his or her decision to make an election under § 831.623 until 30 days after the date of the first payment at the reduced annuity rate.

Section 831.624 regulates the collection of the deposits (including interest) required in making post-retirement elections under § § 831.612, 831.613, 831.621, or 831.623. These payments are not-subject to the procedure for the collection of annuity overpayments under subpart M because the retiree is deemed to consent to the collection. Reconsideration rights under § 831.109 are available to review whether the amount of the deposit has been correctly calculated.

Section § 831.624(d) permits the spouse to complete the deposit if the retiree dies before making the entire deposit. Since the deposit is a prerequisite to payment of a survivor annuity, the deposit must be fully paid before the survivor annuity can be paid.

Section 831.625 regulates current and former spouse annuities in the event of remarriage by the recipient (except for former spouses entitled to survivor annuities under §§ 831.621 or 831.622). Whether age 55 or age 60 is the standard for terminating the annuity based on remarriage is determined by the date of the annuitant's retirement or the employee's or Member's death while serving in a position covered by CSRS, not the date of the remarriage. If the annuitant retired before May 7, 1985, or the employee or Member died in service before that date, the old law (age 60) continues to apply. If the annuitant retires on or after May 7, 1985, or the employee or Member dies in service on or after that date, the CSRSEA rule ( age 55) controls. This is based on section 4(a) of CSRSEA that states that the retirement amendments to title 5, United States Code, apply only when the former employee or Member retires, dies in service, or requests a refund after May 7, 1985.

Since no statutory provision permits reinstatement of former spouse annuities, paragraph (d) provides that remarriage permanently extinguishes them. The solemnization of the remarriage is the event terminating the former spouse's entitlement. Accordingly, even if the remarriage is later annulled the entitlement is not reinstated. This rule is necessary for essentially the same policy reason cited by the Missouri Court of Appeals when finding that alimony should not be reinstated following annulment of a remarriage. In Glass v. Glass, 546

S.W.2d 738 (Mo. App. 1977) the court supported its decision on the following policy considerations: (1) A former husband is entitled to rely on the remarriage ceremony of the former wife to recommit assets previously used for alimony obligations to her. (2) Unless the remarriage ceremony is taken as conclusive, any latent grounds for annulment between the remarried spouse and her new husband may remain suspended until the offended spouse seeks annulment, so that the former husband's alimony obligations may never be certainly determined. (3) Even though both former spouses may be innocent, the more active of the two (the one whose remarriage is later annulled) should bear the loss from the misconduct of a stranger. (At 741.) Similar policy considerations apply in the context of the former spouse's annuity entitlements. First, the retiree is entitled to rely on the remarriage ceremony to provide a current spouse annuity for a subsequent spouse. Second, unless the remarriage is taken as conclusive, any latent grounds for annulment could prevent a current spouse's entitlement from becoming certain. Third, the spouse whose marriage is annulled should bear the loss rather than the spouse with no involvement whatsoever.

Section 831.626 continues our present procedure of requiring retirees who gain new title to an annuity to make all elections required upon retirement, when they apply to retire under the new annuity right. The elections under this section are made in accordance with the law at the time of the latest retirement.

Section 831.627 states the annual notice requirement of the Civil Service Retirement Act Amendment of July 10, 1978, Pub. L. 95-317, 92 stat. 382. Section 3 of Pub. L. 95-317 requires that we, " * * *

on an annual basis, inform each retiree of such retiree's right of election under sections 8339(j) and 8339(k)(2) of title 5, United States Code." This provision does not appear in the United States Code.

Based on the reasoning of a Merit Systems Protection Board regional office decision, we determined that giving notice each calendar year was inadequate and that notice must be given at least every 12 months. Furthermore, the Merit Systems Protection Board determined in Davies v. OPM 5 MSPB 251(1981) (discussed in connection with § 831.613) that the time limit for making an election could be waived if the retiree did not receive the annual notice and acted with due diligence in making the election.

3. Court Orders Affecting Civil Service Retirement Benefits

State laws and State courts have traditionally controlled matters of domestic relations and property rights. Questions such as an individual's obligations to a former spouse are determined by the courts on a case-by-case basis taking into consideration many factors, such as the financial status of both parties, property settlements, children involved, etc.

As a result of the enactment of Pub. L. 93-647, which added section 459 to the Social Security Act (42 U.S.C. 659), since 1975, civil service retirement benefits have been subject to garnishment, attachment, or similar legal process to enforce support obligations.

In recent years, many State courts have ruled that future retirement benefits earned during a marriage should be considered marital property and subject to division in the event of a legal separation, divorce, or annulment of marriage. The Social Security Act garnishment amendments did not cover property settlements.

Pub. L. 95-366, effective September 15, 1978, required us to pay a portion of an annuity to someone other than the retiree to the extent expressly provided for in the terms of any court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation. Final rules implementing Pub. L. 95-366 were published in the Federal Register on March 7, 1980 (45 FR 14835). However, survivor benefits still could not be affected by court orders.

Now, under CSRSEA, State courts are permitted to award former spouse annuities to assure former spouses of their property rights regardless of whether the employee spouse survives. Awarding former spouse annuities could also be used to assure continuing support payments to a former spouse.

The revised Subpart Q incorporates this new type of benefit available by court order into the framework established for handling court orders dividing employee retirement benefits under section 8345(j) of title 5, United States Code.

The general rule of section 8346(a) of title 5, United States Code, is that State court orders have no effect on civil service retirement benefits. Subpart Q contains procedures for the exceptional cases when section 8346(a) does not apply.

Nothing in this subpart or anywhere else authorizes the United States, the Office of Personnel Management, or the Civil Service Retirement System to be made party to divorce proceedings. The sovereign immunity of the United States bars the attempted joinder.

Our experience has shown that joinders are sought for three reasons: (1] To obtain information about an individual's contributions to the retirement system; (2) To divide the retirement benefits; and

(3) To stay payment of benefits.

Under Federal laws and regulations, these ends can be attained despite the court's lack of jurisdiction over the Civil Service Retirement System.

We will release information from retirement records to a court in response to a subpoena. The proper place to submit the subpoena is determined by whether the person has been separated from the Federal service. If the individual about whom the information is sought is not a current Federal employee, the subpoena should be addressed to the Civil Service Retirement System at the Office of Personnel Management. If the individual is still an active Federal employee, and all of his or her Federal service has been continuous and with the same agency, the records should be with the payroll office of that agency. Service must be made upon the agency in which the individual is employed.

If the individual is currently a Federal employee but has had a break in service or has worked for more than one agency, some of the records will be on file with us while others will still be with the employing agency. In this situation, process must be served on both.

It takes approximately 30 days to respond to a subpoena. Submissions must include the employee's (or former employee's) full name, date of birth and/or social security number or we will not be able to locate the record.

Section 8345(j) of title 5, United States Code, instructs us to divide civil service retirement benefits in accordance with State court orders. The required contents of the court order are set out in § 831.1704 of the interim regulations. Our guidelines for interpreting language frequently used in orders dividing benefits is an appendix to subpart Q of the interim rules. An application to apportion benefits requires approximately 30 days processing time after receipt.

Finally, court orders may be necessary to maintain the status quo during the time the suit is pending. The way to accomplish this is to obtain an order directing us to pay some or all of the benefits that may become due to the court. Such an order should he served upon the Associate Director for Compensation.

We cannot pay any more into the court before it would be payable to the employee or retiree. Employee contributions in the retirement fund are not payable in a lump sum to an employee until he or she separates from the Federal service and submits an application for refund.

The definition of "employee retirement benefits" was taken from the definition of "retirement benefits" in the old § 831.1702. These are the benefits that were subject to court orders under Pub. L. 95-366 because they are payable to the person who performed the Federal service on which they are based.

The definition of "former spouse" contains two usages for the term. In connection with divisions of employee retirement benefits under section 8345(j) of title 5, United States Code, "former spouse has the same meaning that it had under the old § 831.1703. In connection with awards of survivor annuities under section 8339(h) of title 5, United States Code, "former spouse" has the meaning given to it in section 8331(23) of title 5, United States Code.

The definition of "gross annuity" is taken from the Guidelines for Interpreting State Court Orders Dividing Civil Service Retirement Benefits (49 FR 26746, June 29, 1984, corrected by 49 FR 27647, July 5, 1984).

The definition of "net annuity" is derived directly from the old § 831.1705(a).

Section 831.1704(b) is a restatement of the old § 831.1703(c). It was rewritten to eliminate the confusion and clarify our original intent to exclude orders requiring us to compute the value of a variable about which we have no knowledge.

Section 831.1704(c)(1) rephrases the rule of the old § 831.1703(b) for clarity. The language is taken from Guidelines for Interpreting State Court Orders Dividing Civil Service Retirement Benefits (49 FR 26748, June 29, 1984, corrected by 49 FR 27647, July 5,1984). The interpretation of Pub. L. 95-366 expressed in the old § 831.1703(b) has been upheld by the United States Court of Appeals in McDannell v. Office of Personnel Management, 716 F.2d 1063 (5th Cir.1983).

Section 831.1704(c)(2) states a broader rule for honoring orders awarding former spouse annuities. No legitimate purpose could be served by denying effect to an order directing the retiree to provide a former spouse annuity.

Section 831.1705 contains the application requirements for all persons seeking compliance with qualifying court orders. Section 831.1705(a) allows the application to be made in any writing. We recommend use of a letter. A special form is required only when payments must terminate upon remarriage.

Section 831.1705(b) contains the documentation requirements that must accompany the application. Previously we required that the certification of the court order be "recent." This requirement failed to serve any useful purpose. Accordingly, future applications will require only a proper certification; we are no longer requiring that the certification be "recent."

The quantity of identifying information required under § 831.1705(b)(3) varies with the type of civil service retirement benefit to be affected. Current retirees can be identified with only the name and claim number, date of birth, or social security number. The date of birth is essential in all other types of cases. Without the date of birth, we cannot effectively identify future incoming records.

The certification requirement of § 831.1705(c) applies to former spouse annuities of persons who have not attained age 55, and court orders affecting employee retirement benefits that terminate on remarriage. An example of the latter type order would be an alimony award to be paid from a civil service annuity.

Section 831.1706(a) and (b) are the old § 831.1705(b).

Section 831.1706(c) states the maximum amount available to comply with court orders. The limitations of the Federal Consumer Credit Protection Act (15 U.S.C. 1673(b)(2)) do not apply to court orders under this subpart.

Section 831.1707 states the preliminary review procedure of the old § 831.1706. Upon receipt of an order, we will check to see whether immediate action is necessary because either benefits are immediately payable or an immediate reduction in annuity is necessary to provide a former spouse annuity. If neither of the conditions is met, § 831.1707(a)(1) provides that we will acknowledge receipt of the court order and file the order for future consideration. Only after one of those conditions has been met will the order be reviewed.

Section 831.1707(b) provides that if, as a result of the preliminary review, the initial determination is that the order could be a qualifying court order, all interested parties will be given the notices provided in § 831.1708. On the hand, if the initial determination is that the order does not qualify, § 831.1707(c) requires that the former spouse be given an explanation of the reasons that the order fails to qualify and a notice of his or her administrative review right. The former employee or Member will be notified that we have received a court order even when, as a result of the preliminary review, we determine that we will not honor the order.

Section 831.1709 retains the decision procedure from the old § 831.1708. The former spouse's claims will be disallowed only if the court order does not meet the requirements of § 831.1704 or a court determines that it should not be honored. Anyone adversely affected by a decision under § 831.1709 may request reconsideration under § 831.109. Section 831.109(g) prohibits us from implementing decisions under § 831.1709 until the administrative review process is completed.

Section 831.1711 states the timing requirement applicable to court orders. Section 831.1711(a)(1) states the rule under section 8345(j) of title 5, United States Code, that orders affecting employee retirement benefits can be honored regardless of when the orders were issued. On the other hand, § 831.1711(b)(1) states the rule under CSRSEA that orders creating a former spouse annuity are effective only if the marriage to the employee or Member was in force on or after May 7, 1985, and the employee or Member retires under the civil service retirement system or dies in a covered position on or after May 7, 1985.

Section 831.1712 contains procedures for handling employee retirement benefits that were being paid to a former spouse who dies. In 1980, when we promulgated regulations (45 FR 14835, March 7, 1980) to implement section 8345(j) of title 5, United States Code, we stated that we would promulgate a rule to provide restrictions and procedures applicable to payments after the death of the former spouse after further study. Section 831.1712 now establishes restrictions and procedures for these payments. (It should be noted that section 8345(j) of title 5, United States Code, requires that an apportionment of employee retirement benefits must terminate if the annuity benefit is suspended or terminated. This statute relieves us from the obligation of paying an apportioned benefit after the death of an annuitant.)

In cases when a former spouse dies while entitled to a portion of a retiree's payments in accordance with a court order, § 831.1712 requires that we request guidance from the court that issued the apportionment order. The court could then make further provision for future payments. This approach was chosen only after concluding that automatically paying the former spouse's share to the court was unfeasible because too many courts would not have procedures to handle and account for the funds.

Section 831.1713 is taken from the old § § 831.1710 and 831.1711. Sections 831.1713 (a) through (d) are derived from the old § 831.1710 (a) through (d). Section 831.1713(e) is the old § 831.1711(c).

Section 831.1714 provides for publication and indexing of interpretive guidelines. We have received approximately 1000 State court orders dividing civil service retirement benefits. In implementing these orders, we have been forced to interpret many terms that are capable of more than one meaning. To insure consistency in interpretation and to simplify the task of interpreting ambiguous terms that are frequently used, we have developed a set of guidelines that we will use to interpret State court orders.

The legal community has attempted to draft orders dividing civil service retirement benefits that minimize the potential confusion generated in interpreting the orders. However, without knowledge that a term used in a decree has a technical meaning within the civil service retirement law, unclear orders frequently resulted. The guidelines for interpreting these technical terms should assist the legal community in drafting orders that will be interpreted by us to produce the intended result.

The guidelines contain no regulatory language. The original guidelines were published at 49 FR 26746, June 29, 1984, corrected by 49 FR 27647, July 5, 1984. These guidelines are appended to subpart Q in the interim rules and apply to court orders dividing employee retirement benefits but not to court orders awarding survivor annuities.

Section 831.1715 restates the old § 831.1711(a).

Section 831.1716 provides for handling multiple court orders against one former employee or Member. Section 831.1716(a) states the order-of-issuance rule required by CSRSEA for formal spouse annuity cases whenever two or more former spouses are involved.

Section 831.1716(b) states the usual rule for determining the effect of court judgments for cases when conflicting judgments affect the same parties.

Section 831.1717 restates the old § 831.1710(e). Section 831.1718 restates the old § 831.1711(d).

4. Payment of Lump Sums

Pub. L. 98-615 also affected lump-sum credit payments (refunds) of accumulated retirement deductions. A former employee's or Member's current spouse must be notified of the former employee's or Member's application for a lump-sum payment after May 6, 1985. Any former spouse from whom the employee was divorced after May 6, 1985, must also be notified of the application for lump-sum payment.

If the employee's or Member's current or former spouse does not acknowledge notification, the employee or Member may submit a signed postal return receipt as proof that he or she has mailed the notification to the current or former spouse. Alternatively, the employee or Member may submit affidavits signed by two individuals who witnessed the employee's or Member's personal attempt to obtain the current or former spouse's signature on the notification form. This is in substantial conformance with regulations found at old § 831.601(c) to Title 5, Code of Federal Regulations, which governed spousal notification of survivor annuity elections at the time of retirement under previous law, and which the Congress expressed its intent that we follow. (House Report No. 98-1054, September 24, 1984, p. 15.) The burden of proving a bona fide effort to notify the spouse or former spouse is placed upon the employee or Member, with the intent of keeping any delay in paying the refund within reasonable limits.

If the employee or Member is unable to obtain the acknowledgement of any former spouse, the employee or Member may, instead, submit a divorce decree, community property settlement or similar court-approved document wherein the former spouse has relinquished any rights to the annuity or the annuity was wholly awarded to the employee or Member. The object here is to require proof that the former spouse's entitlement to any benefit from the employee's or Member's annuity has been relinquished. If that is the case, there is no benefit which the former spouse could lose by the refund being paid and, therefore, notification would serve no reasonable purpose.

If the spouse's whereabouts are unknown, § 831.2008 sets out the conditions necessary for a waiver of the notification requirement.

The lump-sum payment will also be subject to any court order or decree issued after May 6, 1985, which directly relates to the lump-sum credit, if the payment of the lump-sum would adversely affect a former spouse's entitlement to a court-ordered share of an annuity and/or a survivor annuity. These regulations set forth procedures that we will follow to implement these provisions.

Sections 831.2005 and 831.2006 are the former §§ 831.1003 and 831.1004. Section 831.2001 has been expanded to include more definitions. Sections 831.2002 through 2004 remain essentially unchanged except that they are made subject to the restrictions of these new regulations and to section 3718 of title 5, United States Code, on administrative offset for government claims.

I find that there is good reason to make these amendments effective in less than 30 days (5 U.S.C. 533(d)(3)). The regulations are effective on May 7, 1985, to prevent irreparable harm to persons entitled to benefits under CSRSEA. Delaying rulemaking would be contrary to the public interest as expressed in CSRSEA because such a delay would require delayed payments in cases authorized by the revised statute most of which becomes effective May 7, 1985, until implementing regulations could be put in place.

Although later payments could be retroactive to May 7, 1985, when entitlement attached on that date, delay could seriously harm entitled persons with an immediate need for payment.

Furthermore, CSRSEA imposes restrictions on the time in which application under sections 4(b) and 4 (c) of the Act can be made. The 30 month period under section 4(b) and the 18 month period under section 4(c) began to run on November 9, 1984. It would be unconscionable to further delay processing applications while awaiting comments.

E.O. 12291, Federal Regulation

I have determined that this is not a major rule as defined under section 1(b) of E.O. 12291, Federal Regulation.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation will only affect retirement payments to retired Government employees and spouses.

List of Subjects in 5 CFR Part 831

Administrative practice and procedure, Claims, Disability benefits, Firefighters, Government employees, Income taxes, Intergovernmental relations, Law enforcement officers, Pensions, Personnel Management Office, Retirement.

U.S. Office of Personnel Management

Loretta Cornelius

Acting Director

PART 821--AMENDED

Accordingly, OPM is amending 5 CFR Part 831, as follows:

1. By revising Subpart F to read as follows:

Subpart F-Survivor Annuity

Sec.

831.601 Purpose.

831.602 Relation to other regulations.

831.603 Definitions.

831.604 Election at time of retirement of fully reduced annuity to provide a current spouse annuity.

831.605 Election at time of retirement of fully reduced annuity or partially reduced annuity to provide a former spouse annuity.

831.606 Election of insurable interest annuity.

831.607 Election of a self-only annuity or partially reduced annuity by married employee and Members.

831.608 Waiver of spousal consent requirement.

831.609 Changes of election before final adjudication.

831.610 Marital status at time of retirement.

831.611 Changes of election after final adjudication.

831.612 Post-retirement election of fully reduced annuity or partially reduced annuity to provide a former spouse annuity.

831.613 Post-retirement election of fully-reduced annuity or partially reduce d annuity to provide current spousal annuity.

831.614 Division of a survivor annuity.

831.615 Child's annuity during school attendance.

831.616 Proof of dependency.

831.617 Rates of child annuities.

831.618 Marriage duration requirements.

831.619 Time for filing applications for death benefits.

831.620 Commencing and terminating dates of survivor annuities.

831.621 Election by a retiree who retired before May 7, 1985, to provide a former spouse annuity.

831.622 Annuities for former spouses of employees or Members retired before May 7, 1985.

831.623 Second chance elections to provide survivor benefits.

831.624 Payments of required deposits.

831.625 Remarriage.

831.626 Elections by previously retired retiree with new title to an annuity.

831.627 Annual notice required by Pub. L. 95-317.

Authority: 5 U.S.C. 8347.

Subpart F--Survivor Annuities

§ 831.601 Purpose.

This subpart explains the annuity benefits payable in the event of the death of employees, retirees, and Members; the actions that employees, retirees, Members, and their current spouses, former spouses, and eligible children must take to qualify for survivor annuities; and the types of evidence required to demonstrate entitlement to provide survivor annuities or qualify for survivor annuities.

§ 831.602 Relation to other regulations.

(a) Subpart Q of this part contains information about former spouses entitlement to survivor annuities based on provisions in court orders or court approved property settlement agreements.

(b) Subpart T of this part contains information about entitlement to lump-sum death benefits.

(c) Parts 870, 871, 872 and 873 of this chapter contain information about coverage under the Federal Employees' Group-life Insurance Program.

(d) Part 890 of this chapter contains information about coverage under the Federal Employees Health Benefits Program.

(e) Section 831.109 contains information about the administrative review rights available to a person who has been denied survivor annuity or an opportunity to make an election under this subpart.

§ 831.603 Definitions.

As used in this subpart--

"CSRS" means subchapter III of chapter 83 of title 5, United States Code.

"Current spouse" means a living person who is married to the employee, Member, or retiree at the time of the employee's, Member's, or retiree's death.

"Current spouse annuity" means a recurring benefit under CSRS that is payable (after the employee's, Member's, or retiree's death to a current spouse who meets the requirements of 831.618.

"Deposit" means a deposit required by the Civil Service Retirement Spouse Equity Act of 1984, Pub. L. 98-615, 98 Stat. 3195. "Deposit," as used in this subpart does not include a service credit deposit or redeposit under sections 8334(c) or (d) of title 5, United States Code.

"First regular monthly payment" means the first annuity check payable on a recurring basis (other than an estimated payment or an adjustment check) after OPM has initially adjudicated the regular rate of annuity payable under CSRS and has paid the annuity accrued since the time of retirement. The "first regular monthly payment" is generally preceded by estimated payments before the claim can be adjudicated and by an adjustment check (including the difference between the estimated rate and the initially adjudicated rate).

"Former spouse" means a living person who was married for at least 9 months to an employee, Member, or retiree who performed at least 18 months of creditable service in a position covered by CSRS and whose marriage to the employee was terminated prior to the death of the employee, Member, or retiree.

"Former spouse annuity" means a recurring benefit under CSRS that is payable to a former spouse after the employee's, Member's, or retiree's death.

"Fully reduced annuity" means the recurring payments under CSRS received by a retiree who has elected the maximum allowable reduction in annuity to provide a current spouse annuity and/or a former spouse annuity or annuities.

"Insurable Interest Annuity" means the recurring payments under CSRS to a retiree who has elected a reduction in annuity to provide a survivor annuity to a person with an insurable interest in the retiree.

"Marriage" means a marriage recognized in law or equity under the whole law of the jurisdiction with the most significant interest in the marital status of the employee, Member, or retiree unless the law of that jurisdiction is contrary to the public policy of the United States. If a jurisdiction would recognize more than one marriage in law or equity, the Office of Personnel Management (OPM) will recognize only one marriage, but will defer to the local courts to determine which marriage should be recognized.

"Member - means a Member of Congress.

"Net annuity" means the net annuity as defined in 831.1703.

"Partially reduced annuity" means the recurring payments under CSRS to a retiree who has elected less than the maximum allowable reduction in annuity to provide a current spouse annuity or a former spouse annuity.

"Qualifying court order" means a court order that meets the qualifications of 831.1704.

"Retiree" means a former employee or Member who is receiving recurring payments under CSRS based on service by the employee or Member. "Retiree," as used in this subpart, does not include a current spouse, former spouse, child, or person with an insurable interest receiving a survivor annuity.

"Self-only annuity" means the recurring unreduced payments under CSRS to a retiree with no survivor annuity to anyone.

"Time of retirement" means the date when a retired employee's or Member's annuity entitlement commences.

§ 831.604 Election at time of retirement of fully reduced annuity to provide a current spouse annuity.

(a) A married employee or Member retiring under CSRS will receive fully reduced annuity to provide a current spouse annuity unless--

(1) The employee or Member, with the consent of the current spouse, elects a self-only annuity, a partially reduced annuity, or a fully reduced annuity to provide a former spouse annuity, in accordance with 831.605(b) or 831.607; or

(2) The employee or Member elects a self-only annuity, a partially reduced annuity or a fully reduced annuity to provide a former spouse annuity, and spousal consent is waived in accordance with § 831.608.

(b] Qualifying court orders that award former spouse annuities prevent payment of current spouse annuities to the extent necessary to comply with the court order and § 831.614.

§ 831.605 Election at time of retirement of fully reduced annuity or partially reduced annuity to provide a former spouse annuity.

(a) An unmarried employee or Member retiring under CSRS may elect a fully reduced annuity or a partially reduced annuity to provide a former spouse annuity or annuities.

(b) A married employee or Member retiring under CSRS may elect a fully reduced annuity or a partially reduced annuity to provide a former spouse annuity or annuities instead of a fully reduced annuity to provide a current spouse annuity, if the current spouse consents to the election in accordance with § 831.607 or spousal consent is waived in accordance with § 831.608.

(c) An election under paragraphs (a) or (b) of this section is void if it--

(1) Conflicts with a qualifying court order; or

(2) Would cause the total of current spouse annuities and former spouse annuities payable based on the employee's or Member's service to exceed 55 percent of the self-only annuity to which the employee or Member would be entitled.

(d) Any reduction in an annuity to provide a former spouse annuity will terminate on the first day of the month after the former spouse dies or remarries before age 55, unless

(1) The retiree elects, within 2 years after the former spouse's death or remarriage, to continue the reduction to provide or increase a former spouse annuity for another former spouse, or to provide or increase a current spouse annuity; or

(2) A qualifying court order requires the retiree to provide another former spouse annuity.

§ 831.606 Election of insurable interest annuity.

(a) At the time of retirement, an employee or Member in good health, who is applying for a non-disability annuity, may elect an insurable interest annuity. Spousal consent is not required, but an election under this section does not exempt a married employee or Member from the provisions of § 831.604(a).

(b) An insurable interest annuity may be elected by an employee or Member electing a fully reduced annuity or a partially reduced annuity to provide a current spouse annuity or a former spouse annuity or annuities.

(c) An employee or Member may elect an insurable interest annuity to benefit a current or former spouse who, upon the retiree's death, will also be entitled to a current spouse annuity or a former spouse annuity.

(d) To elect an insurable interest annuity, an employee or Member must indicate the intention to make the election on the application for retirement and must submit evidence to demonstrate that he or she is in good health. OPM may also require a medical examination to demonstrate that the employee or Member is in good health.

(e) An insurable interest annuity may be elected to provide a survivor benefit only for a person who has an insurable interest in the retiring employee or Member.

(1) An insurable interest is presumed to exist with-

(i) The current spouse;

(ii) A blood or adopted relative closer than first cousins;

(iii) A former spouse;

(iv) A person to whom the employee or Member is engaged to be married;

(v) A person with whom the employee or Member is living in a relationship which would constitute a common-law marriage in jurisdictions recognizing common-law marriages.

(2) When an insurable interest is not presumed, the employee or Member must submit affidavits from one or more persons with personal knowledge of the named beneficiary's insurable interest in the employee or Member. The affidavits must set forth the relationship, if any, between the named beneficiary and the employee or Member, the extent to which the named beneficiary is dependent on the employee or Member, and the reasons why the named beneficiary might reasonably expect to derive financial benefit from the continued life of the employee or Member.

(3) The employee or Member may be required to submit documentary evidence to establish the named beneficiary's date of birth.

(f) After receipt of all required evidence to support an election of an insurable interest annuity, OPM will notify the employee or Member of initial monthly annuity rates with and without the election of an insurable interest annuity and the initial rate payable to the named beneficiary. No election of an insurable interest annuity is effective unless the employee or Member confirms the election in writing, dies, or becomes incompetent no later than 60 days after the date of the notice described in this paragraph.

(g) When an employee or Member elects both an insurable interest annuity and a fully reduced annuity or a partially reduced annuity to provide a current spouse annuity and/or a former spouse annuity or annuities, each reduction is computed based on the self-only annuity computation. The combined reduction may exceed the maximum 40 percent reduction in the retired employee's or Member's annuity permitted under section 8339(k)(1) of title 5, United States Code, applicable to insurable interest annuities.

(h) Except as provided in § 831.625(d), if a retiree who is receiving a fully reduced annuity or a partially reduced annuity to provide a former spouse annuity has also elected an insurable interest annuity to benefit a current spouse and if the eligible former spouse dies or remarries before age 55 and no other former spouse is entitled to a survivor annuity based on an election made in accordance with

§ 831.612 or a qualifying court order, the retiree may elect, within 2 years after the former spouse's death or remarriage, to convert the insurable interest annuity to a fully reduced annuity to provide a current spouse annuity, effective on the first day of the month following the death or remarriage of the former spouse.

(i) Upon the death of the current spouse, a retiree whose annuity is reduced to provide both a current spouse annuity and an insurable interest benefit for a former spouse is not permitted to convert the insurable interest annuity to a reduced annuity to provide a former spouse annuity.

(j) An employee or Member may name only one natural person as the named beneficiary of an insurable interest annuity. OPM will not accept the designation of contingent beneficiaries and such a designation is void.

§ 831.607 Election of a self-only annuity or partially reduced annuity by married employees and Members.

(a) A married employee may not elect a self-only annuity or a partially reduced annuity to provide a current spouse annuity without the consent of the current spouse or a waiver of spousal consent by OPM in accordance with § 831.608.

(b) Evidence of spousal consent or a request for waiver of spousal consent must be filed on a form prescribed by OPM.

(c) The form will require that a notary public or other official authorized to administer oaths certify that the current spouse presented identification, gave consent, signed or marked the form, and acknowledged that the consent was given freely in the notary's or official's presence.

§ 831.608 Waiver of spousal consent requirement.

(a) The spousal consent requirement will be waived upon a showing that the spouse's whereabouts cannot be determined. A request for waiver on this basis must be accompanied by--

(1) A judicial determination that the spouse's whereabouts cannot be determined; or

(2) (i) Affidavits by the employee or Member and two other persons, at least one of whom is not related to the employee or Member, attesting to the inability to locate the current spouse and stating the efforts made to locate the spouse; and

(ii) Documentary corroboration such as tax returns filed separately or newspaper stories about the spouse's disappearance.

(b) The spousal consent requirement will be waived based on exceptional circumstances if--

(1) The employee or Member is considered unmarried at the time of retirement based on § 831.610; or

(2) The employee or Member presents a judicial determination regarding the current spouse that would warrant waiver of the consent requirement based on exceptional circumstances.

§ 831.609 Changes of election before final adjudication.

An employee or Member may name a new survivor or change his election of type of annuity if, not later than 30 days after the date of the first regular monthly payment, the named survivor dies or the employee or Member files with OPM a new written election. All required evidence of spousal consent or justification for waiver of spousal consent, if applicable, must accompany any new written election under this section.

§ 831.610 Marital status at time of retirement.

An employee or Member is unmarried at the time of retirement for all purposes under this subpart only if the employee or Member was unmarried on the date that the annuity begins to accrue.

§ 831.611 Changes of election after final adjudication.

Except as provided in section 8339(j) or (k) of title 5, United States Code or § 831.621 or § 831.623, an employee or Member may not revoke or change the election or name another survivor, later than 30 days after the date of the first regular monthly payment.

§ 831.612 Post-retirement election of fully reduced annuity or partially reduced annuity to provide a former spouse annuity.

(a) Except as provided in paragraphs (b) and (c) of this section, a retiree who retired on or after May 7, 1985, may elect in writing a fully reduced annuity or a partially reduced annuity to provide a former spouse annuity. Such an election must be filed with OPM within 2 years after the retiree's marriage to the former spouse terminates.

(b) An election under paragraph (a) of this section will not be permitted--

(1) If it conflicts with a qualifying court order; or

(2) If it would cause the combined current and former spouse annuities to exceed 55 percent of the retiree's annuity; or

(3) In the case of a married retiree, if the current spouse does not consent to the election on the form described in § 831.607(c) and spousal consent is not waived by OPM in accordance with § 831.608; or

(4) To the extent that it provides a former spouse annuity for the spouse who was married to the retiree at the time of retirement in an amount that is inconsistent with any joint designation or waiver made at the time of retirement under § 831.604(a)(1) or (a)(2).

(c) An election under this section is not permitted unless the retiree agrees to deposit the amount equal to the difference between the amount of annuity actually paid to the retiree and the amount of annuity that would have been paid if the reduction elected under paragraph (a) of this section had been in effect continuously since the time of retirement, plus 6 percent annual interest, computed under § 831.105, from the date when each difference occurred.

(d) The annuity reduction under this section terminates under the conditions stated in 831.605(d).

§ 831.613 Post-retirement election of fully reduced annuity or partially reduced annuity to provide a current spouse annuity.

(a) In cases of retirees who retired before May 7, 1985:

(1) A retiree who was unmarried at the time of retirement may elect, within 1 year after a post-retirement marriage, a fully reduced annuity or a partially reduced annuity to provide a current spouse annuity.

(2) A retiree who was married and elected a fully reduced annuity or a partially reduced annuity at the time of retirement may elect, within 1 year after a post-retirement marriage, to provide a current spouse annuity.

(3) The reduction under paragraphs (a)(1) or (a)(2) of this section commences on the first day of the month beginning 1 year after the date of the post-retirement marriage.

(b) In cases involving retirees who retired on or after May 7, 1985:

(1) Except as provided in paragraph (b)(3) of this section, a retiree who was unmarried at the time of retirement may elect, within 2 years after a post-retirement marriage, a fully reduced annuity or a partially reduced annuity to provide a current spouse annuity.

(2) Except as provided in paragraph (b)(3) of this section, a retiree who was married at the time of retirement may elect, within 2 years after a post-retirement marriage, a fully reduced annuity or a partially reduced annuity to provide a current spouse annuity if--

(i) The retiree was awarded a fully reduced annuity under § 831.604 at the time of retirement; or

(ii) The election at the time of retirement was made with a waiver of spousal consent in accordance with § 831.608; or

(iii) The marriage at the time of retirement was to a person other than the spouse who would receive a current spouse annuity based on the post-retirement election.

(3) An election under paragraph (b)(1) or (b)(2) of this section is not effective if it conflicts with a qualifying court order or would cause the combined current and former spouse annuities to exceed 55 percent of the retiree's annuity.

(4) A retiree making an election under this section must deposit an amount equal to the difference between the amount of annuity actually paid to the retiree and the amount of annuity that would have been paid if the reduction, elected under paragraph (b)(1) or (b)(2) of this section had been in effect continuously since the time of retirement, plus 6 percent annual interest, computed under § 831.105, from the date when each difference occurred.

(5) Any reduction in an annuity to provide a current spouse annuity will terminate effective on the first day of the month after the marriage to the current spouse ends, unless--

(i) The retiree elects, within 2 years after a divorce terminates the marriage, to continue the reduction to provide for a former spouse annuity; or

(ii) A qualifying court order requires the retiree to provide a former spouse annuity.

§ 831.614 Division of a survivor annuity.

(a) Except as provided in § 831.622, the maximum combined total of all current and former spouse annuities (not including any benefits based on an election of an insurable interest annuity) payable based on the service of a former employee or Member equals 55 percent of the rate of the self-only annuity that otherwise would have been paid to the employee, Member, or retiree.

(b) By using the elections available under this subpart or to comply with a court order under Subpart Q, a survivor annuity may be divided into a combination of former spouse annuities and a current spouse annuity so long as the aggregate total of current and former spouse annuities does not exceed the maximum limitation in paragraph (a) of this section.

(c) Upon termination of former spouse annuity payments because of death or remarriage of the former spouse, or by operation of a court order, the current spouse will be entitled to a current spouse annuity or an increased current spouse annuity if--

(1) The employee or Member died while employed in a position covered under CSRS; or

(2) The current spouse was married to the employee or Member continuously from the time of retirement and did not consent to an election not to provide a current spouse annuity; or

(3) The current spouse married a retiree after retirement and the retiree elected, under § 831.613, to provide a current spouse annuity for that spouse in the event that the former spouse annuity payments terminate.

§ 831.615 Child's annuity during school attendance.

For a child to be eligible for continuation of annuity beyond age 18 because of student status, the child, in addition to meeting all other requirements applicable to a child survivor who has not attained age 18, must present a certificate on a form prescribed by OPM from educational or training institution that certifies that the child is regularly pursuing a full time day or evening course of resident study or training. For this purpose a full-time course of resident study or training means a day or evening noncorrespondence course that contemplates school attendance at the rate of at least 36 weeks per academic year with subject load sufficient, if successfully completed, to attain the educational or training objective within the period generally accepted as minimum for completion, by a full-time day student, of the academic or training program concerned.

§ 831.616 Proof of dependency.

(a) To be eligible for survivor annuity benefits, a child must have been dependent on the employee, Member, or retiree at the time of the employee's, Member's, or retiree's death.

(b) A child is considered to have been dependent on the deceased employee, Member, or retiree if he or she is--

(1) A legitimate child; or

(2) An adopted child; or

(3) A child who lived with, and for whom a petition of adoption was filed by, the employee, Member, or retiree, and who was adopted by the surviving spouse of the employee, Member, or retiree after the employee's, Member's, or retiree's death; or

(4) A stepchild or recognized natural child who lived with the employee, Member, or retiree in a regular parent-child relationship at the time of the employee's, Member's, or retiree's death; or

(5) A recognized natural child for whom a judicial determination of support was obtained; or

(6) A recognized natural child to whose support the employee, Member, or retiree, made regular and substantial contributions.

(c) The following are examples of proofs of regular and substantial support. More than one of the following proofs may be required to show support of a natural child who did not live with the employee, Member, or retiree in a regular parent-child relationship and for whom a judicial determination of support was not obtained.

(1) Evidence of eligibility as a dependent child for benefits under other State or Federal programs; and

(2) Proof of inclusion of the child as a dependent on the decedent's income tax returns for the years immediately before the employee's, Member's, or retiree's death; and

(3) Canceled checks, money orders, or receipts for periodic payments received from the employee, Member, or retiree for or on behalf of the child; and

(4) Evidence of goods or services that show regular contributions of considerable value; and

(5) Proof of coverage of the child as a family member under the employees Member's, or retirees Federal Employees Health Benefits enrollment; and

(6) Other proof of a similar nature that OPM may find to be sufficient to demonstrate support or parentage.

(d) Survivor benefits may be denied--

(1) If evidence shows that the deceased employee, Member, or retiree did not recognize the claimant as his or her own despite a willingness to support the child; or

(2) If evidence casts doubt upon the parentage of the claimant, despite the deceased employee's, Member's, or retiree's recognition and support of the child.

§ 831.617 Rates of child annuities.

(a) (1) Subject to paragraphs (a)(2) and (a)(3) of this section, the rate of annuity payable to a child survivor is computed under section 8341(e)(1)(A) through (C) of title 5, United States Code, with adjustments in accordance with section 8340 of title 5, United States Code, whenever a deceased employee, Member, or retiree is survived by a current spouse or a former spouse who is the natural or adoptive parent of a surviving child of the employee, Member or retiree.

(2) When paragraph 1(a)(1) of this section applies because of existence of a current spouse:

(i) Paragraph (a)(1) of this section applies even if the current spouse is not entitled to a current spouse annuity.

(ii) Paragraph (a)(1) of this section applies to all children of the former employee or Member, including children who are not the offspring of the spouse.

(3) When paragraph (a)(1) of this section applies only because of the existence of a former spouse who is the natural or adoptive parent of a surviving child of the employee, Member, or retiree:

(i) Paragraph (a)(1) of this section applies even if the former spouse is not entitled to a former spouse annuity.

(ii) Paragraph (a)(1) of this section applies to all children of the former employee or Member, including children who are not the offspring of the former spouse.

(iii) paragraph (a)(1) of this section does not apply to any child of the former employee or Member if former spouse has no offspring entitled to a annuity.

(b) The rate of annuity payable to a child survivor is computed under section 8341(e)(1)(i) through (iii) of title 5, United States Code, with adjustment in accordance with section 8340 of title 5, United States Code, when the deceased employee, Member, or retiree is not survived by a current spouse or a former spouse who is the natural or adoptive parent of a surviving child (who is entitled to a child's annuity) of the former employee or Member.

(c) On the death of the current spouse or the former spouse or termination of the annuity of a child, the annuity of any other child or children is recomputed and paid as though the spouse, former spouse, or child had not survived the former employee or Member.

§ 831.618 Marriage duration requirements.

(a) The surviving spouse of a retiree who retired on or after May 7, 1985, or of an employee or Member who dies while serving in a position covered by CSRS on or after May 7, 1985, can qualify for a current spouse annuity only if--

(1) The surviving spouse and the employee, Member, or retiree had been married for at least 9 months, as explained in paragraph (b) of this section; or

(2) A child was born of marriage, as explained in paragraph (c) of this section; or

(3) The death of the employee, Member, or retiree was accidental as explained in paragraph (d) of this section.

(b) For satisfying the 9-month marriage requirement of paragraph (a)(1) of this section, the aggregate time of all marriages between the spouse applying for a current spouse annuity, and the employee, Member, or retiree is included.

(c) For satisfying the-child-born-of-the-marriage requirement of paragraph (a)(2) of this section, any child, including a posthumous child, born to the spouse and the employee, Member, or retiree is included. This includes a child born out of wedlock or of a prior marriage between the same parties.

(d)(1) A death is accidental if it results from a homicide or from bodily injuries incurred solely through violent, external, and accidental means (the term "accidental" does not include a death): (i) Caused wholly or partially, directly or indirectly, by disease or bodily or mental infirmity, or by medical or surgical treatment or diagnosis thereof; or

(ii) Caused wholly or partially, directly, or indirectly, by ptomaine, by bacterial infection, except only septic infection of and through a visible wound sustained solely through violent, external, and accidental means; or

(iii) Caused wholly or partially, directly or indirectly, by hernia, no matter how or when sustained; or

(iv) Caused by or the result of intentional self-destruction or intentionally self-inflicted injury, while sane or insane.

(2) A State judicial or administrative adjudication of the cause of death for criminal or insurance purposes is conclusive evidence of whether a death is accidental.

(3) A death certificate showing the cause of death as accident or homicide is prima facie evidence that the death was accidental.

§ 831.619 Time for filing application for death benefits.

(a) A survivor of a deceased employee, Member, or retiree, may file an application for annuity, personally or through a representative, at anytime within 30 years after the death of the employee, Member, or retiree.

(b) A former spouse claiming eligibility for an annuity based on § 831.822 may file an application at any time between November 8, 1984 and May 9, 1987. Within this period, the date that the first correspondence indicating a desire to file a claim is received by OPM will be treated as the application date for meeting timeliness deadlines and determining the commencing date of the survivor annuity under § 831.622 if the former spouse is eligible on that date.

§ 831.620 Commending and terminating dates of survivor annuities.

(a) A survivor annuity payable from the Civil Service Retirement and Disability Fund commences the day after (1) death of the employee, Member, or retiree; (2) attainment of age 50 when, under section 12 of the Civil Service Retirement Act Amendments of February 29, 1948, the annuity is deferred until age 50; (3) a claim is received in OPM when an annuity is authorized for unremarried widows and widowers by section 2 of the Civil Service Retirement Act Amendments of June 25, 1958, 72 Stat. 218; or (4) the later of the date of death of the retiree or the first day of the second month after the date the application for annuity is filed under § 831.622.

(b) A survivor annuity terminates at the end of the month preceding death or any other terminating event.

(c) A current spouse annuity terminated for reasons other than death may be restored under conditions defined in sections 8341(e)(2) and 8341(g) of title 5, United States Code.

(d) A survivor annuity accrues on a daily basis, one-thirtieth of the monthly rate constituting the daily rate. An annuity does not accrue for the 31st day of any month, except in the initial month if the survivor's (of a deceased employee) annuity commences on the 31st day. For accrual purposes, the last day of a 28-day month constitutes 3 days and the last day of a 29-day month constitutes 2 days.

§ 831.621 Election by a retiree who retired before May 7, 1985, to provide a former spouse annuity.

(a) A retiree who retired before May 7, 1985, including a retiree receiving a fully reduced annuity to provide a current spouse annuity, may elect a fully reduced annuity to provide a former spouse annuity. (b) The election should be made by letter addressed to OPM. The election must--

(1) Be in writing: and

(2) Agree to pay any deposit due under paragraph (d) of this section; and

(3) Be signed by the retiree; and

(4) Be filed with OPM before May 9, 1986.

(c)(1) If a retiree who is receiving an insurable interest annuity elects a fully reduced annuity under this section to benefit the same person, the insurable interest annuity terminates. A retiree who is receiving an insurable interest annuity at the time that an annuity is elected under this section does not owe any further deposit, if a fully reduced annuity is elected under this section.

(2) A retiree who elects a fully reduced annuity under this section, to provide a former spouse annuity for a former spouse for whom the retiree had elected (during the marriage to that former spouse) a reduced annuity to provide a current spouse annuity must deposit an amount equal to the differences between the rate of annuity actually paid to the retiree and the amount of annuity which would have been paid had a fully reduced annuity been paid continuously since the time of retirement, plus 6 percent annual interest, computed under § 831.105, from the date to which each difference is attributable.

(3) A retiree who elects a fully reduced annuity under this section, and is not covered under paragraphs (c)(1) or (c)(2) of this section, must deposit an amount equal to the difference between the self-only annuity and a fully-reduced annuity since the time of retirement, plus 6 percent annual interest, computed under § 831.105, from the date to which each difference is attributable.

(d) If a retiree who is receiving a fully reduced annuity or a partially reduced annuity to provide a current spouse annuity elects a fully reduced annuity under this section to provide a former spouse annuity, the annuity will be reduced separately to provide for the current and former spouse annuities. Each separate reduction will be computed based on the self-only annuity, and the separate reductions are cumulative.

(e)(1) In response to a retiree's inquiry about providing a former spouse annuity under this section OPM will send an application form. This application will include instructions to assist the retiree in estimating the amount of reduction in the annuity to provide the former spouse annuity and the amount of the required deposit. The application form will include a notice to retirees that filing the application constitutes an official election which cannot be revoked after 30 days after the annuity check in which the annuity reduction first appears.

(2) If the retiree returns the application electing a fully-reduced annuity under this section, OPM will notify the retiree of--

(i) The rate of the fully reduced annuity; and

(ii) The rate of the potential former spouse annuity; and

(iii) The amount of the deposit, plus interest, that is due as of the date that the annuity reduction is scheduled to begin; and

(iv) The amount and duration of installment payments if no deposit is made.

(3) The notice under paragraph (e)(2) of this section will advise the retiree that the deposit will be collected in installments under

§ 831.624, unless lump-sum payment is made within 60 days from the date of the notice.

(4) OPM will reduce the annuity and begin collection of the deposit in installments effective with the first check payable more than 60 days after the date on the notice required under paragraph (e)(2) of this section.

§ 831.622 Annuities for former spouses of employees or Members retired before May 7, 1985.

(a) The former spouse of a retiree who retired before May 7, 1985, is entitled, after the death of the retiree, to a survivor annuity equal to 55 percent of the annuity of the retiree on whose service the survivor annuity is based if the former spouse meets all of the following requirements:

(1) The former spouse's marriage to the retiree was dissolved after September 14, 1978. The date of dissolution of a marriage is the date when the marriage between the former spouse and the retiree ended under law of the jurisdiction that terminated the marriage, rather than the date when restrictions on remarriage ended. The date of entry of the decree terminating the marriage will be rebuttably presumed to be the date when the marriage was dissolved.

(2) The former spouse was married to the retiree for at least 10 years of the retirees creditable civilian service. Creditability of service is determined in accordance with section 8332 of title 5, United States Code, and subpart C.

(3) The former spouse is not receiving any other employer-provided retirement or survivor annuity.

(i) Employer-provided retirement or survivor annuity means recurring retirement or survivor payments (other than benefits under title II of the Social Security Act or under section 8345(j) of title 5, United States Code) that are made by, on behalf of, or under the terms of a contract with an employer and are based on past service of the former employee or Member or the former spouse.

(ii) Employer-provided retirement or survivor annuity to which the former spouse is entitled but not actually receiving because of a failure to apply for the benefit or because the benefits were waived (and the waiver was accepted by the retirement or survivor benefit plan) are not considered employer-provided benefits for purposes of this section.

(4) The former spouse has not remarried before reaching age 55.

(5) The former spouse applies to OPM for a survivor annuity, in accordance with paragraph (b) of this section and § 831.619(b), before May 9, 1987.

(6) The former spouse is at least 50 years old when filing the application.

(b) (1) Application must be filed on the form prescribed for that purpose by OPM. The application form will require the former spouse to certify under the penalty provided by section 1001 of title 18, United States Code, that he or she meets the requirements listed in paragraph (a) of this section.

(2) In addition to the application form required in paragraph (b)(1) of this section, the former spouse must submit proof of his or her age and the date when the marriage to the retiree commenced, and a certified copy of the divorce decree terminating the marriage to the retiree.

(3) Former spouses applying for benefits under this section must meet the requirements of paragraph (a) of this section at the time of application and at all times while a former spouse annuity, under this section, is being paid to that former spouse. A former spouse who is receiving a former spouse annuity under this section must notify OPM within 30 days after he or she ceases to meet any of the qualifications in paragraph (a) of this section.

(c) Survivor annuities payable under this section commence on the later of the day after the date of death of the retiree or the first day of the second month after the application is filed under § 831.619(b).

(d) Cost-of-living adjustments under section 8340 of title 5, United States Code, are applicable to annuities payable under this section.

§ 831.623 Second chance elections to provide survivor benefits.

(a) A married retiree who retired before May 7, 1985, and is not currently receiving a fully or partially reduced annuity to provide a current spouse annuity may elect a fully or partially reduced annuity to provide a current spouse annuity for a spouse acquired after retirement if the following conditions are met:

(1) (i) The retiree was married at the time of retirement and did not elect a survivor annuity at that time; or

(ii) The retiree failed to elect a fully or partially reduced annuity within 1 year after a post-retirement marriage that occurred before November 8, 1984, and the retiree attempted to elect a fully or partially reduced annuity after the time limit expired and that request was disallowed as untimely.

(2) The retiree applies for a fully or partially reduced annuity under this section before November 9, 1985.

(3) The retiree agrees to pay the amount due under paragraph (d) of this section.

(b) Applications must be filed on the form prescribed by OPM, except filing the form is excused when the retiree dies before filing the required form if:

(1) The retiree made a written request, after November 8, 1984, to elect a fully or partially reduced annuity under this section, and

(2) The retiree was denied the opportunity to file the required form because the retiree, without fault, did not receive the form in sufficient time for the retiree to be reasonably expected to complete the form before death.

(c) (1) In response to a retiree's inquiry about providing a current spouse annuity under this section, OPM will send an application form. This application will include instructions to assist the retiree in estimating the amount of reduction in the annuity to provide the current spouse annuity and the amount of the required deposit. The application form will include a notice to retirees that filing the application constitutes an official election which cannot be revoked after 30 days after the annuity check in which the annuity reduction first appears.

(2) If the retiree returns the application electing a fully or partially reduced annuity under this section, OPM will notify the retiree of--

(i) The rate of the fully reduced annuity; and

(ii) The rate of the potential current spouse annuity; and

(iii) The amount of the deposit, plus interest, that is due as of the date that the annuity reduction is scheduled to begin; and

(iv) The amount and duration of installment payments if no deposit is made.

(3) The notice under paragraph (c)(2) of this section will advise the retiree that the deposit will be collected in installments under § 831.624, unless lump-sum payment is made within 60 days from the date of this notice.

(4) OPM will reduce the annuity and begin collection of the deposit in installments effective with the first check payable more than 60 days after the date on the notice required under paragraph (c)(2) of this section.

(d) The retiree must state on the application form whether the application is made under paragraph (a)(1)(i) of this section or paragraph (a)(1)(ii) of this section. If the application is made under paragraph (a)(1)(ii) of this section, the retiree must prove that he or she had attempted to elect a fully reduced annuity and that OPM rejected that application because it was filed too late. The proof must consist of a copy of OPM's letter rejecting the previous election as untimely filed or an affidavit swearing or affirming that he or she made an untimely application which OPM rejected. The affidavit is sufficient documentation to provide proof of the retiree's attempt to elect a reduced annuity, unless the record contains convincing evidence to rebut the certification.

(e) A retiree who elects to provide a current spouse annuity under this section must agree to pay a deposit equal to the difference between the amount of annuity actually paid to the retiree and the amount of annuity that would have been paid if a fully reduced annuity were being paid continuously since the time of retirement, plus 6 percent annual interest, computed under § 831.105, from the date when each difference occurred.

§ 831.624 Payments of required deposits.

(a) The deposits required to elect fully or partially reduced annuities under § § 831.612, 831.613, 831.621, or 831.623 are not annuity overpayments and their collection is not subject to waiver. They are subject to reconsideration only to determine whether the amount has been correctly computed.

(b) If a retiree fails to make a deposit required under § 831.621 or § 831.623 within 60 days after the date of the notice required by

§ 831.621(e) or § 831.623(c), the deposit will be collected by offset from his or her annuity in installments equal to 25 percent of the retiree's net annuity (as defined in § 831.1703).

(c) If a retiree fails to make a deposit required by § § 831.612 or831.613 within 2 years after the date of the post-retirement marriage or divorce, the deposit will be collected by offset from his or her annuity in installments equal to 25 percent of the retiree's net annuity (as defined in § 831.1703).

(d) If a retiree dies before a deposit required under

§ § 831.612, 831.613, 831.621, or 831.623 is fully made, the deposit will be collected from the survivor annuity (for which the election required the deposit) before any payments of the survivor annuity are made.

§ 831.625 Remarriage.

(a) A current spouse annuity based on the death of a retiree who retired before May 7, 1985, or of an employee or Member who died while serving in a position covered under CSRS before May 7, 1985, terminates on the last day of the month before the current spouse remarries before attaining age 60.

(b) A current spouse annuity or a former spouse annuity based on the death of a retiree who retired on or after May 7, 1985, or of an employee or Member who died while serving in a position covered under CSRS on or after May 7, 1985, terminates on the last day of the month before the recipient remarries before attaining age 55.

(c) If a current spouse annuity is terminated because of remarriage of the recipient, the annuity is reinstated on the day of the termination of the remarriage by death, annulment, or divorce if- (1) The surviving spouse elects to receive this annuity instead of a survivor benefit to which he or she may be entitled, under CSRS or another retirement system for Government employees, by reason of the remarriage;

(2) Any lump sum paid on termination of the annuity is repaid (in a single payment or by withholding payment of the annuity until the amount of the lump sum has accrued).

(d) If present or future entitlement to a former spouse annuity is terminated because of remarriage of the recipient or potential recipient, the entitlement is permanently extinguished. An annulment of the remarriage does not reinstate the entitlement.

§ 831.626 Elections by previously retired retiree with new title to an annuity.

(a) A reemployed retiree (after 5 or more years of reemployed annuitant service) who elects a redetermined annuity under section 8344 of title 5 United States Code, is subject to § § 831.604 through 611 at the time of the redetermination.

(b) A disability retiree who recovers from disability or is restored to earning capacity is subject to §§ 831.604 through 611 at the time that he or she retires under section 8336 or 8338 of title 5, United States Code.

(c) A retiree who is dropped from the retirement rolls and subsequently gains a new annuity right by fulfilling the requirements of section 8333(b) of title 5, United States Code, is subject to § § 831.604 through 611 when he or she retires under that new annuity right.

§ 831.627 Annual notice required by Pub. L. 95-317.

At least once every 12 consecutive months, OPM will send a notice to all retirees to inform them about the survivor annuity elections available to them, under sections 8339(j) apd 8339(k)(2) of title 5, United States Code, in the event of post-retirement marriages.

Subpart J--(Removed)

2. By removing Subpart J and reserving it for future use.

3. By revising Subpart Q to read as follows:

Subpart Q-Court Orders Affecting Civil Service Retirement Benefits

Sec.

831.1701 Purpose.

831.1702 Relation to other regulations.

831.1703 Definitions.

831.1704 Qualifying court orders.

831.1705 Applications by former spouse.

831.1706 Amounts payable.

831.1707 Preliminary review.

831.1708 Notifications.

831.1709 Decisions.

831.1710 Lump-sum credits.

831.1711 Effective dates.

831.1712 Death of the former spouse.

831.1713 Limitations.

831.1714 Guidelines on interpreting court orders.

831.1715 Liability.

831.1716 Receipt of multiple court orders.

831.1717 Cost-of-living adjustments.

831.1718 Settlements.

Appendix Guidelines for Interpreting State Court Orders Dividing Civil Service Retirement Benefits

Authority: 5 U.S.C. 8347

Subpart Q--Court Orders Affecting Civil Service Retirement Benefits

§ 831.1701. Purpose.

This subpart regulates the Office of Personnel Management's adjudication of claims arising out of State court orders that affect civil service retirement benefits. The Office of Personnel Management (OPM) must comply with qualifying court orders, decrees, or court-approved property settlements in connection with divorces, annulments of marriage, or legal separations of employees, Members, or retirees that award a portion of a former employee's or Member's retirement benefits or a survivor annuity to a former spouse. This subpart prescribes the procedures to be followed by-

(a) A former spouse when applying for benefits based on a court order under sections 8345(j) or 8341(h) of title 5, United States Code; and

(b) The Associate Director in honoring court orders and in making payment to the former spouse.

§ 831.1702 Relation to other regulations.

(a) Part 581 of this Chapter contains information about garnishment of Government payments including salaries and civil service retirement benefits.

(b) Parts 294 and 297 of this chapter and § 831.106 contain information about disclosure of information from OPM records.

(c) Subpart F of this part contains information about entitlement to survivor annuities.

(d) Subpart T of this part contains information about entitlement to lump-sum death benefits.

(e) Parts 870, 871, 872, and 873 of this chapter contain information about coverage under the Federal Employees' Group Life Insurance Program.

(f) Part 890 of this chapter contains information about coverage under the Federal Employees Health Benefits Program.

(g) Section 831.109 contains information about the administrative review rights available to a person who has been adversely affected by an OPM action under this subpart.

§ 831.1703 Definitions.

In this subpart, "Associate Director" means the Associate Director for Compensation in the OPM or an OPM employee officially authorized to act on his or her behalf.

"Court order" means any judgment or property settlement issued by or approved by any court of any State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, or the Virgin Islands, and any Indian court in connection with, or incident to, the divorce, annulment of marriage, or legal separation of a Federal employee or retiree.

"CSRS" means subchapter III of chapter 83 of title 5, United States Code.

"Employee retirement benefits" means employees' and Members' annuities and refunds of retirement contributions but does not include survivor annuities or lump-sum payments made pursuant to section 8342 (c) through (f) of title 5, United States Code.

"Former spouse" means (1) in connection with a court order affecting employee retirement benefits, a living person whose marriage to an employee, Member, or retiree has been subject to a divorce, annulment, or legal separation resulting in a court order; or (2) in connection with a court order awarding a former spouse annuity, a living person who was married for at least 9 months to an employee, Member, or retiree who performed at least 18 months of creditable service in a position covered by CSRS and whose marriage to the employee was terminated prior to the death of the employee, Member, or retiree.

"Former spouse annuity" means a former spouse annuity as defined in § 831.603.

"Gross annuity" means the amount of a self-only annuity less only applicable survivor reduction, but before any other deduction.

"Member" means a Member of Congress.

"Net annuity" means the amount of annuity payable after deducting from the gross annuity any amounts that are (1) owed by the retiree to the United States, (2) deducted for health benefits premiums pursuant to section 8906 of title 5, United States Code, and § § 891.401 and 891.402 of this title, (3) deducted for life insurance premiums pursuant to section 8714a(d) of title 5, United States Code, (4) deducted for Medicare premiums, or (5) properly withheld for Federal income tax purposes, if amounts withheld are not greater than they would be if the individual claimed all dependents to which he or she was entitled.

"Qualifying court order" means a court order that meets the requirements of § 831.1704.

"Retiree" means a former employee or Member who is receiving recurring payments under CSRS based on service by the employee or Member. "Retiree," as used in the subpart, does not include a current spouse, former spouse, child or person with an insurable interest.

"Self-only annuity" means the recurring payment to a retiree who has elected not to provide a survivor annuity to anyone.

§ 831.1704 Qualifying court orders.

(a) A former spouse is entitled to a portion of an employee's retirement benefits only to the extent that the division of retirement benefits is expressly provided for by the court order. The court order must divide employee retirement benefits, award a payment from employee retirement benefits, or award a former spouse annuity.

(b) The court order must state the former spouse's share as a fixed amount, a percentage or a fraction of the annuity, or by a formula that does not contain any variables whose value is not readily ascertainable from the face of the order or normal OPM files.

(c) (1) For purposes of payments from employee retirement benefits, OPM will review court orders as a whole to determine whether the language of the order shows an intent by the court that the former spouse should receive a portion of the employee's retirement benefits directly from the United States.

(i) Orders that direct or imply that OPM is to make payment of a portion of employee retirement benefits, or are neutral about the source of payment, will be honored unless the retiree can demonstrate that the order is invalid in accordance with § 831.1709.

(ii) Orders that specifically direct the retiree to pay a portion of employee retirement benefits to a former spouse (and do not contain language to show the court intends payment from the Civil Service Retirement System) will be honored unless the retiree objects to direct payment by OPM within the 30-day notice period prescribed in

§ 831.1708, but will not be honored even if the retiree raises only a general objection to payment by OPM within that 30-day notice period.

(2) For purposes of awarding a former spouse annuity, the court order must either state the former spouse's entitlement to a survivor annuity or direct an employee, Member, or retiree to provide a former spouse annuity.

(d) For purposes of affecting or awarding a former spouse annuity, a court order is not a qualifying court order whenever--

(1) The marriage was terminated before May 7, 1985; or

(2) The employee or Member on whose service the former spouse annuity is based retired under CSRS before May 7, 1985.

(e) Except in cases when divorces occur after retirement, a court order concerning a survivor annuity will not be honored if it is issued after the retirement of the employee or Member involved.

§ 831.1705 Applications by former spouse.

(a) A former spouse (personally or through a representative) must apply in writing to be eligible for benefits under this subpart. No special form is required.

(b) The application letter must be accompanied by--

(1) A certified copy of the court order granting benefits under CSRS; and

(2) A statement that the court order has not been amended, superseded, or set aside; and

(3) Identifying information concerning the employee, Member, or retiree such as his or her full name, claim number, date of birth, and social security number, if available; and

(4) The mailing address of the former spouse.

(c) When payments are subject to termination upon remarriage, no payment shall be made until the former spouse submits to the Associate Director a statement on the form prescribed by OPM certifying--

(1) That a remarriage has not occurred; and

(2) That the former spouse will notify the Associate Director within 15 calendar days of the occurrence of any remarriage; and

(3) That the former spouse will be personally liable for any overpayment to him or her resulting from a remarriage. The Associate Director may subsequently require recertification of these statements.

§ 831.1706 Amounts payable.

(a) Money held by an executive agency or OPM that may be payable at some future date is not available for payment under court orders unless all of the conditions necessary for payment of the money to the former employee or Member have been met, including, but not limited to--

(1) Separation from a covered position in the Federal service; and

(2) Application for payment of the money by the former employee or Member.

(b) Waivers of employee or Member annuity payments under the terms of Section 8345(d) of title 5, United States Code, exclude the waived portion of the annuity from availability for payment under a court order if such waivers are postmarked before the expiration of the 30-day notice period provided by § 831.1708.

(c) Payment under a court order may not exceed--

(1) In cases involving employee or Member annuities, the net annuity.

(2) In cases involving lump-sum payments (refunds), the amount of the lump-sum credit.

(3) In cases involving former spouse annuities, the amount provided in § 831.614.

(d) In cases in which court orders award former spouse annuities- (1) Except as provided in paragraph (d)(2) of this section, former spouse annuities based on qualifying court orders will commence and terminate in accordance with the court order.

(2) A court order will not be honored to the extent it would require an annuity to commence prior to the day after the employee, Member, or retiree dies, or the first day of the second month beginning after the date on which OPM receives written notice of the court order together with the additional information required by § 831.1705. Further, a court order will not be honored to the extent it requires an annuity to be terminated contrary to section 8341(h)(3)(B) of title 5, United States Code.

(3) A court order will not be honored to the extent is inconsistent with any joint designation or waiver previously executed under § 831.607 with respect to the former spouse involved.

§ 831.1707 Preliminary review.

(a)(1) Upon receipt of a court order and documentation required by § 831.1705 affecting the future civil service retirement benefits of an employee or Member who is living and has not applied for benefits under CSRS, the Associate Director will notify the former spouse that OPM has received the court order and documentation. The court order and documentation will be filed for further review when the employee or Member dies or funds become available under § 831.1706.

(2) When OPM has received a court order and documentation required by § 831.1705 affecting an employee or Member who retires, dies, or applies for a lump-sum benefit, the Associate Director will determine whether the court order is a qualifying court order under § 831.1704.

(3) Upon receipt of a court order and necessary documentation required by § 831.1705 affecting employee retirement benefits that are available under § 831.1706 or awarding a former spouse annuity to a former spouse of an employee who retired under CSRS or died, the Associate Director will determine whether the court order is a qualifying court order under § 831.1704.

(b) Upon preliminary determination that the court order is qualifying, the Associate Director will give the notifications required by § 831.1708.

(c) Upon preliminary determination that the court order is not qualifying, the former spouse will be notified of the basis for the determination and the right to reconsideration under § 831.109.

§ 831.1708 Notifications.

(a) In a case in which the court order affects employee retirement benefits:

(1) The Associate Director will notify the employee, Member, or retiree that a court order has been received that appears to require that a portion of his or her retirement benefits be paid to a former spouse and provide the employee, Member, or retiree with a copy of the court order. The notice will inform the former employee or Member--

(i) That OPM intends to honor the court order; and

(ii) Of the effect that the court order will have on the former employee or Member's retirement benefits; and

(iii) That no payments will be made to the former spouse for a period of 30 days from the notice date to enable the former employee or Member to contest the court order.

(2) The Associate Director will notify the former spouse--

(i) That OPM intends to honor the court order; and

(ii) Of the amount that the former spouse is entitled to receive under the court order, and in cases that award a portion of the benefits on a percentage basis or by a formula, how the amount was computed; and

(iii) That payment is being delayed for a period of 30 days to give the former employee or Member an opportunity to contest the court order.

(b) In a case in which the court order awards a former spouse annuity--

(1) The Associate Director will notify the retiree, if living, or, if the employee, Member, or retiree is dead, his or her surviving spouse, or the person entitled to the lump-sum death benefit under section 8342 of title 5, United States Code, if possible, that a court order has been received that requires the payment of a former spouse annuity. The notice will include a copy of the court order. The notice will state--

(i) That OPM intends to honor the court order; and

(ii) The effect it will have on the potential retirement benefit of the person receiving the notice; and

(iii) That any objection to honoring the court order must be filed within30 days from the notice date.

(2) The former spouse will be notified--

(i) That OPM intends to honor the court order; and

(ii) Of the amount of survivor annuity that he or she will be entitled to receive and how the amount was computed; and

(iii) That anyone adversely affected has a period of 30 days in which to contest the court order.

(c) In a case in which the court order affects employee retirement benefits and awards a former spouse annuity all of the notices under paragraphs (a) and (b) of this section will be provided.

§ 831.1709 Decisions.

(a)(i) When the individual does not respond within the 30-day notice period provided for by § 831.1708, the court order will be honored in accordance with the notification.

(2) When a timely response to the notification is received, the Associate Director will consider the response. The former spouse's claim will be denied and the former spouse will be notified of the right to request reconsideration under § 831.109 whenever is shown that--

(i) The court order is not a qualifying court order; or

(ii) The court order is inconsistent with a contemporaneous or subsequent court order.

(b) If any person who may lose benefits if OPM honors the court order objects to payment based on the validity of the court order and the record contains reasonable support for the objection, he or she will be granted 30 days to initiate legal action to determine the validity of the objection. If funds are available under § 831.1706 and evidence is submitted that legal action had been started before the 30 days have expired, money will continue to be withheld, but no payment will be made to the former spouse pending judicial determination of the validity of the court order.

§ 831.1710 Lump-sum credits.

Payment of the lump-sum credit to a former employee or Member will be subject to court orders in accordance with § 831.2009.

§ 831.1711 Effective dates

(a)(1) The provisions of this subpart apply to any employee retirement benefits regardless of the date of issuance of the court order or the date when the employee or Member retires.

(2) The Associate Director will not increase the amount apportioned from current retirement benefits to satisfy an arrearage due the former spouse unless the court order states the amount of the arrearage and directs that it be paid from the employee retirement benefit. However, the Associate Director will honor the terms of a new or revised court order that either increases or decreases the former spouse's entitlement. These changes will be prospective only.

(3) Benefits payable to a former spouse from a retiree's annuity begin to accrue no earlier than the beginning of the month after receipt of a qualifying court order and the documentation required by § 831.1705, and terminate no later than the last day of the month before the death of the retiree.

(b)(1) The provisions of this subpart concerning former spouse annuities apply only with respect to an individual who, on or after May 7, 1985, is married to an employee or Member who, on or after May 7, 1985, retires under CSRS or dies during employment covered by CSRS.

(2) The survivor annuity for a former spouse commences and terminates in accordance with the court order. However, a court order will not be honored to the extent it would require an annuity to commence before--

(i) The day after the employee, Member, or retiree dies; or

(ii) The first day of the second month beginning after OPM receives the court order, together with such additional information required by § 831.1705, whichever is later. Further, a court order will not be honored to the extent it requires an annuity to be terminated contrary to section 8341(h)(3)(B) of title 5, United States Code.

§ 831.1712 Death of the former spouse.

(a) When the former spouse predeceases the retiree, and further employee retirement benefits that would have been subject to the court order are payable, the Associate Director will seek guidance from the court upon whose order the award to the former spouse was based about the proper disposition of the former spouse's share.

(b) The request for guidance from the court will --

(1) Explain the circumstances that led to the request; and

(2) Inform the court of limitations on payments under § 831.1713 applicable to the case; and

(3) Notify the court of the effect of its failure to provide guidance.

(c) While OPM is awaiting guidance from the court, the retiree will be paid only his or her share of the annuity. The former spouse's share may be disbursed only in accordance with paragraphs (d) and (e) of this section.

(d)(1) If no response (or an inadequate response) is received from the court within 60 days from the date of receipt of the request for guidance, the full annuity will be restored to the retiree effective on the date of the first annuity check due after the death of the former spouse.

(2) Disbursement will be made only after the completion of any reconsideration and appeals procedures required by § 831.109.

(e) Payment of all or part of the former spouse's share may be made only to one of the following--

(1) The retiree; or

(2) A child or children of the retiree (or a court-appointed representative for the benefit of such children); or

(3) The court (or other State, county or municipal agency which serves as a collecting and disbursing agent for the court).

(f) The request for guidance required by this section will be sent by certified mail, return receipt requested, addressed to the clerk of the court. Copies of the request for guidance will be sent by certified mail, return receipt requested, to the retiree and to the representative of the estate of the former spouse (if an address is available).

§ 831.1713 Limitations

(a) Employee retirement benefits are subject to apportionment by court order only while the former employee or Member is living. Payment of apportioned amounts will be made only to the former spouse and/or the children of the former employee or CSRS. Payment will not be made to any of the following:

(1) The heirs or legatees of the former spouse; or

(2) The creditors of the former employee or Member, or the former spouse; or

(3) Other assignees of the former employee or CSRS, or the former spouse.

(b) The amount of payment under this subpart will not be less than one dollar and, in the absence of compelling circumstances, will be in whole dollars.

(c) In honoring and complying with a court order, the Associate Director will not disrupt the scheduled method of accruing retirement benefits or the normal timing for making such payment, despite the existence of a special schedule of accrual or payment of amounts due the former spouse.

(d) Payments from employee retirement benefits under this subpart will be discontinued whenever the retiree's annuity payments are suspended or terminated. If annuity payments to the retiree are restored, payment to the former spouse will also resume.

(e) Since the former spouse is entitled to payments from employee retirement benefits only while the former employee or Member is living, the former spouse is personally liable for any payments from employee retirement benefits received after the death of the retiree.

§ 831.1714 Guidelines on Interpreting court orders.

As circumstances require, OPM will publish in the Federal Register a notice of the guidelines it uses in interpreting court orders. Upon publication of the notice in the Federal Register of such guidelines, they will become an appendix to this subpart.

§ 831.1715 Liability.

OPM is not liable for any payment made from employee retirement benefits pursuant to court order if such payment is made in accordance with the provisions of this subpart.

§ 831.1716 Receipt of multiple court orders.

In the event that OPM receives two or more qualifying court orders--

(a) When there are two or more former spouses, the court orders will be honored in the order in which they were issued to the maximum extent possible under § § 831.614 and 831.1706.

(b) Where there are two or more court orders relating to the same former spouse, the one issued last will be honored.

§ 831.1717 Cost-of-living adjustments.

In cases where the court order apportions a percentage of the employee retirement benefit, the Associate Director will initially determine the amount of proper payment. That amount will be increased by future cost-of-living increases unless the court directs otherwise.

§ 831.1718 Settlements.

The former spouse may request that an amount be withheld from the retirement benefits that is less than the amount stipulated in the court order. This lower amount will be deemed a complete fulfillment of the obligation of OPM for the period in which the request is in effect.

Appendix A to Subpart Q of Part 831- Guidelines for Interpreting State Court - Orders Dividing Civil Service Retirement Benefits

UNITED STATES OF AMERICA

Office of Personnel Management

Compensation Group

Guidelines for Interpreting State Court Orders Dividing Civil Service Retirement Benefits

Recent inquires and controversies resulting from ambiguous court orders seeking to divide civil service retirement benefits have demonstrated a need for written guidelines explaining the interpretation which the Office of Personnel Management will place on terms and phrases frequently used in dividing benefits. These guidelines are intended not only for the use of the Office of Retirement Programs, but also for the legal community as a whole, with the hope that by informing attorneys, in advance, about the manner in which the Office of Personnel Management will interpret terms written into court orders, the resulting orders will be more carefully drafted, using the proper language to accomplish the aims of the court.

I. Cost-of-Living and Salary Adjustments

A. Unless the court directly and unequivocally orders otherwise, decrees which divide annuities either on a percentage basis or by use of a formula will be interpreted as subject to adjustment for cost-of-living and salary adjustments occurring after the issuance of the decree.

B. On the other hand, decrees which award a former spouse a specific dollar amount from the annuity will be interpreted as excluding cost-of-living and salary adjustments unless the court expressly orders their inclusion.

C. Orders which contain both a formula or percentage instruction and a corresponding fixed dollar amount will be interpreted as including the fixed amount only as the court's estimate of the initial amount of payment. The formula or percentage instruction will control in cases where conflicting instructions appear.

D. A formula containing an instruction to calculate the former spouse's share effective at the time of divorce will not be interpreted to prevent cost-of-living or salary adjustments. To award a fixed dollar amount based on the rate of annuity which would have been paid if retirement occurred at the date of divorce, the decree must either state the dollar amount of the award or explain with sufficient clarity that salary adjustments, as well as service, after the date of the decree are to be disregarded in computing the former spouse's share.

II. Types of Annuity

A. Gross annuity will be interpreted as the amount shown as gross annuity on civil service annuity master record printouts, i.e., the annuity payable after any applicable survivor deduction but before any other deduction.

B. To divide an annuity before any applicable survivor deduction the decree must contain language to the effect that the division is to be made on the life rate annuity, or the annuity unreduced for survivor benefit, or equivalent language. A division of "gross annuity" will not accomplish this purpose.

C. Net annuity or disposable annuity will be interpreted to mean net annuity as defined in § 831.1703.

D. Orders which fail to state the type of annuity which they are dividing will be interpreted as dividing gross annuity [defined above).

III. Calculating Time

A. The smallest unit of time which will be used in computing formula in a decree is a month.

1. This policy is based on the provision of section 8332 of title 5, United States Code, which allows credit for service for years or twelfth parts thereof. Requests to calculate smaller units of time will not be honored.

2. Smaller periods of time stated in terms of decimal fractions of a year contained in a decree will be limited in application to simple numerical operations performed using the extra precise number. Time calculations by the Office of Personnel Management will be no more precise than years and twelfth parts. For example, the share of a former spouse awarded a portion of the annuity equal to 1/2 of the fraction whose numerator is 12.863 years and whose denominator is the total service on which the annuity is based would be computed by taking Yz of the quotient obtained by dividing 12.863 by the total service measured in years and twelfth parts.

B. The term "military service" will generally be interpreted to include only periods of service within the definition of military service contained in section 8331(13) of title 5, United States Code, i.e., active duty military service. Civilian service with military organizations will not be included as "military service," except where the exclusion of such civilian service would be manifestly contrary to the intent of the court order.

C. When a decree contains a formula for dividing annuity which requires computation of service and unused sick leave has been used in the annuity computation, the amount of credit attributable to the unused sick leave will be computed as service if the formula instructs the use of "creditable service" (or other phrase using "credit" or its equivalent), but will exclude the time attributable to unused sick leave if the formula is based on "years of service" or "total service." Credit for unused sick leave always accrues on the date of separation for immediate retirement; it is never apportioned over the time when earned.

IV. Distinguishing Between Divisions of Annuity and Contributions

A. Orders which are unclear about whether they are dividing an annuity or contribution will be interpreted as dividing an annuity.

B. Orders using "annuities," "pensions," "retirement benefits," or similar terms will be interpreted as dividing an annuity and whatever other employee benefits became payable, such as refunds. Orders which divide "contributions," "deductions," "deposits," "retirement accounts," "retirement fund," or similar terms will be limited to division of the amount which the employee has paid into the Civil Service Retirement and Disability Fund.

V. Orders Directing the Annuitant To Make Payment

A. Orders which specifically direct the retiree to pay a portion of retirement benefits to a former spouse will be honored unless the retiree objects to direct payment by the Office of Personal Management, but will not be honored even if the retiree raises only a general objection to payment by the Office of Personnel Management.

B. Orders which direct or imply that the Office of Personnel Management is to make payment of a portion of retirement benefits, or are neutral about the source of payment, will be honored unless the retiree can demonstrate that the order is invalid.

4. By revising subpart T to read as follows:

Subpart T.--Payment of Lump Sums

Sec.

831.2001 Definitions.

831.2002 Eligibility for lump-sum payment upon filing an Application for Refund of Retirement Deductions (SF 2802).

831.2003 Eligibility for lump-sum payment upon death or retirement.

831.2004 Amount of lump sums.

831.2005 Designation of beneficiary for lump-sum payment.

831.2006 Designation of agent by next of kin.

831.2007 Notification of spouse and/or former spouse before payment of lump sum.

831.2008 Waiver of spouse and/or former spouse notification requirement.

831.2009 Court orders or decrees preventing payment of lump sums.

Authority: 5 U.S.C. 8347.

Subpart T--Payment of Lump Sums

§ 831.2001 Definitions.

"Court order or decree" means the order or decree of any court of any State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, the Virgin Islands or any Indian court, as defined section 8331(24] of title 5, United States Code.

"Current spouse" means a person who is married to the employee or Member at the time the application for refund is filed.

"Former spouse" means a living person who was married for at least 9 months to an employee or Member who had performed at least 18 months of creditable service in a position covered by the retirement system.

"Retirement system" means the civil service retirement system as described in subchapter III of chapter 83 of title 5, United States Code.

§ 831.2002 Eligibility for lump-sum payment upon filing an Application for Refund of Retirement Deductions (SF 2802).

Except as provided in § § 831.2007 through 2009 or in section 3716 of title 31, United States Code, on administrative offset for government claims, a former employee or Member who has been separated from a covered position for at least 31 days at the time of filing an application for refund and who is ineligible for an annuity commencing with 31 days after the date of filing an application for refund is eligible for a refund for the total lump-sum credit to his or her credit in the Retirement Fund.

§ 831.2003 Eligibility for lump-sum payment upon death or retirement.

(a) If there is no survivor who is entitled to monthly survivor annuity benefits on the death of a former employee, Member, annuitant, or survivor annuitant, the total lump-sum credit to the former employee's or Member's credit in the Retirement Fund is payable, except as provided in section 3716 of title 31, United States Code, on administrative offset for government claims, to the person(s) entitled in the normal order of precedence described in section 8342(c) of title 5, United States Code.

(b) If an annuity is payable, the former employee, Member or the person entitled in the order of precedence described in section 8342(c) of title 5, United States Code, may be paid, except as provided in section 3716 of title 31, United States Code, administrative offset for government claims, lump-sum payment of--

(1) Retirement deductions withheld from the employee's or Member's pay after he or she became eligible for the maximum annuity, if the employee or Member does not elect to treat those deductions as voluntary contributions toward the purchase of an additional annuity; and

(2) Retirement deductions withheld from the employee's or Member's pay during his or her final period of service if the employee or Member was not subject to the retirement system for at least one of the last 2 years before final separation from service and if the service covered by the deductions is not used for title to annuity; and

(3) Partial redeposits of refunds previously paid; and

(4) Partial deposits for civilian service performed on and after October 1, 1982; and

(5) Partial deposits for post-1956 military service; and

(6) Annuity accrued and unpaid.

(c) A former employee, Member, or survivor who is eligible for an annuity may not be paid a lump-sum payment of--

(1) Partial or completed deposits for nondeduction civilian service performed before October 1, 1982, unless the service covered by the deposit is not creditable under the retirement system; or

(2) Completed deposits for nondeduction civilian service performed on and after October 1, 1982, unless the service covered by the deposit is not creditable under the retirement system; or

(3) Completed deposits for post-1956 military services, unless the service covered by the deposit is not creditable under the retirement system.

Payments of the partial or completed deposits mentioned in this paragraph are subject to 31 U.S.C. 3716 (administrative offset for government claims).

§ 831.2004 Amount of lump-sums.

If applicable, the amount of a refund will include interest computed as described in § 831.105(b).

§ 831.2005 Designation of beneficiary for lump-sum payment.

(a) The Designation of Beneficiary must be in writing, signed, and witnessed, and received in OPM before the death of the designator.

(b) No change or cancellation of beneficiary in a last will or testament, or in any other document not witnessed and filed as required by this section, has any force or effect.

(c) A witness to a Designation of Beneficiary is ineligible to receive payment as a beneficiary.

(d) Any person, firm, corporation, or legal entity may be named as beneficiary.

(e) A change of beneficiary may be made at any time and without the knowledge or consent of the previous beneficiary, and this right cannot be waived or restricted.

§ 831.2006 Designation of agent by next of kin.

When a deceased employee, Member, or annuitant has not named a beneficiary and one of the next of kin entitled makes a claim for lump-sum benefit, other next of kin entitled to share in the lump-sum benefit may designate the one who made the claim to act as their agent to receive their distributive shares.

§ 831.2007 Notification of current and/or former spouse before payment or lump sum.

(a) Payment of the lump-sum credit based on a refund application filed on or after May 7, 1985, may be made only if any current spouse and any former spouse (from whom the employee or Member was divorced after May 6, 1985) are notified of the former employee's or Member's application.

(b) Notification of the former spouse will not be required if the marriage to the former spouse was of less than 9 months duration or if the employee has not completed a total of 18 months of creditable service covered under the retirement system.

(c) Proof of notification will consist of a signed and witnessed statement by the current and/or former spouse on a form provided by OPM acknowledging that he or she has been informed of the former employee's or Member's application for refund and the consequences of the refund on the current or former spouse's possible annuity entitlement. This statement must be presented to the employing agency or OPM when filing the Application for Refund of Retirement Deductions (SF 2802).

(d) If the current and/or former spouse refuses to acknowledge the notification or the employee or Member is otherwise unable to obtain the acknowledgement, the employee or Member must submit--

(1) A signed postal return receipt as evidence that the notification was received at the address of the current or former spouse; or

(2) Affidavits signed by two individuals who witnessed the employee's or Member's attempt to personally notify the current or former spouse. The witnesses must attest that they were in the presence of the employee or Member and the current or former spouse when the notification attempt was made and that the employee's or Member's purpose should have been clear to the current or former spouse.

(e) If a former spouse refuses to acknowledge the notification or the employee or Member is otherwise unable to obtain the acknowledgement of a former spouse, the employee or Member may submit a certified copy of a court order or decree wherein the former spouse has relinquished all claim to the employee's or Member's annuity or which awards the annuity wholly to the employee or Member.

§ 831.2008 Waiver of spouse and/or former spouse notification requirement.

The current and/or former spouse notification requirement will be waived upon a showing that the current and/or former spouse's whereabouts cannot be determined. A request for waiver on this basis must be accompanied by--

(a) A judicial or administrative determination that the current and/or former spouse's whereabouts cannot be determined; or

(b) Affidavits by the former employee or Member and two other persons at least one of whom is not related to the former employee or Member attesting to the inability to locate the current and/or former spouse and stating the efforts made to locate the current and/or former spouse.

§ 831.2009 Court orders or decrees preventing payment of lump sums.

(a) Payment of the lump-sum credit to a former employee or Member will be subject to the terms of any court order or decree issued with respect to any former spouse from whom the employee or Member was divorced after May 6, 1985 if--

(1) The court order or decree expressly relates to any portion of the lump-sum credit involved; and

(2) Payment of the lump-sum credit would extinguish entitlement of the former spouse to a survivor annuity under section 8341(h) of title 5, United States Code, or to any portion of an annuity under section 8345(j) of title 5, United States Code.

(b) For paragraph (a) of this section to have effect, OPM must be in receipt of the court order or decree before authorizing payment of the refund.

(c)(1) In the event that OPM receives two or more court orders or decrees--

(i) When there are two former spouses, the court orders or decrees will be honored in the order in which they were issued until the lump-sum has been exhausted.

(ii) When there are two or more court orders or decrees relating to the same former spouse, the one issued last will be honored first.

(2) In no event will the amount paid out exceed the amount of the lump-sum credit.

(d) OPM is not liable for any payment made from money due from or payable by OPM to any individual pursuant to a court order or decree regular on its face, if such payment is made in accordance with this subpart.

[FR Doc. 85-11562 Filed 5-10-85; 8:45am]

BILLING CODE 6325-01-M