C.F.R. » Title 5 » CHAPTER I—OFFICE OF PERSONNEL MANAGEMENT › SUBCHAPTER B—CIVIL SERVICE REGULATIONS › PART 838—COURT ORDERS AFFECTING RETIREMENT BENEFITS › Subpart J—Court Orders Affecting Civil Service Retirement Benefits

5 C.F.R. § 838.1004

Qualifying court orders

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(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 § 838.1009.

(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 § 838.1008, 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)(i) The marriage was terminated on or after May 7, 1985; and

(ii) The employee or Member retired under CSRS before May 7, 1985; and

(iii)(A) The employee or Member had elected not to provide a current spouse annuity for that spouse at the time of retirement; or,

(B) In the case of a post-retirement marriage, the annuitant had not elected to provide a survivor annuity for that spouse before May 7, 1985.

(e)(1) For purposes of awarding, increasing, reducing, or eliminating a former spouse survivor annuity, or explaining, interpreting, or clarifying a court order that awards, increases, reduces or eliminates a former spouse annuity, the court order must be—

(i) Issued on a day prior to the date of retirement or date of death of the employee; or

(ii) The first order dividing the marital property of the retiree and the former spouse.

(2) In paragraph (e)(1) of this section, “date of retirement” means the later of—

(i) The date that the employee files an application for retirement; or

(ii) The effective commencing date for the employee's annuity.

(3) In paragraphs (e)(1) and (e)(4) of this section “issued” means actually filed with the clerk of the court, and does not mean the effective date of a retroactive court order that is effective prior to the date when actually filed with the clerk of the court (e.g., a court order issued nunc pro tunc).

(4)(i) In paragraph (e)(1)(ii) of this section, the “first order dividing the marital property of the retiree and the former spouse” means—

(A) The original written order that first ends (or first documents an oral order ending) the marriage if the court divides any marital property (or approves a property settlement agreement that divides any marital property) in that order, or in any order issued before that order; or

(B) The original written order issued after the marriage has been terminated in which the court first divides any marital property (or first approves a property settlement agreement that divides any marital property) if no marital property has been divided prior to the issuance of that order.

(ii) The first order dividing marital property does not include—

(A) Any court order that amends, explains, clarifies, or interprets the original written order regardless of the effective date of the court order making the amendment, explanation, clarification, or interpretation; or

(B) Any court order issued under reserved jurisdiction or any other court orders issued subsequent to the original written order that divide any marital property regardless of the effective date of the court order.

[50 FR 20077, May 13, 1985, as amended at 51 FR 31936, Sept. 8, 1986; 52 FR 3210, Feb. 3, 1987; 53 FR 48896, Dec. 5, 1988; 53 FR 49638, Dec. 8, 1988. Redesignated and amended at 57 FR 33596, July 29, 1992]
Notes of Decisions
Cited in 18 cases (1 in the last 5 years), 1997–2026 · leading case: Linda L. Vaccaro v. Off. of Pers. Mgmt., 262 F.3d 1280 (Fed. Cir. 2001).
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Linda L. Vaccaro v. Off. of Pers. Mgmt., 262 F.3d 1280 (Fed. Cir. 2001). · cites it 10× “1 Notes: 1 The Merit Systems Protection Board below relied on a regulation adopted by OPM, 5 C.F.R. 838.1004, for its finding that if the original decree disposed of any marital property, a second decree constitutes a modification and would not be given any effect.”
Anna M. Rafferty v. Off. of Pers. Mgmt., 407 F.3d 1317 (Fed. Cir. 2005). · cites it 8× “5 C.F.R. § 838.1004 (e)(1) (2004) (emphases added).”
Pamela M. Hokanson v. Off. of Pers. Mgmt., 122 F.3d 1043 (Fed. Cir. 1997). · cites it 3× “” 5 C.F.R. § 838.1004 (a). The regulation continues, stating that “[f]or the 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…”
William H. Perry, Ii, Etitioner v. Off. of Pers. Mgmt.,respondent, 243 F.3d 1337 (Fed. Cir. 2001). “5 C.F.R. § 838.1004 (b). And I find that the court order awarded the in-tervenor a survivor annuity inasmuch as it provides for her to be treated as the surviving spouse if the appellant dies.”
Hayward v. Off. of Pers. Mgmt., 578 F.3d 1337 (Fed. Cir. 2009). “” 5 C.F.R. § 838.1004 (c)(1)© (emphasis added).”
Stare v. Stare, Unpublished Decision (9-8-2004), 2004 Ohio 4770 (Ohio Ct. App. 2004). · cites it 2× “1003 and 5 CFR 838.1004 when in it's (sic) decision of November 20, 2003 it found that the parties' decree of divorce was not a `qualifying order' as that term is defined by 5 CFR 838.”
In Re Marriage of Shevling v. Shevling, 97 P.3d 1036 (Kan. 2004). “” The subject matter of that regulation is now covered by 5 C.F.R. § 838.1004 (2003), which provides in relevant part: “(e)(1) For purposes of awarding, increasing, reducing, or eliminating a former spouse survivor annuity, or explaining, interpreting, or clarifying a court…”
John Moran v. Off. of Pers. Mgmt., 310 F.3d 1382 (Fed. Cir. 2002). “See also 5 C.F.R. § 838.1004 (2001). In 1997, after Moran retired, OPM ruled that the 1994 order was a qualifying one and computed Mills’ survivor annuity based on Moran’s entire annual retirement annuity.”
Teresa Capps v. Off. of Pers. Mgmt. (MSPB 2026). · cites it 8× “In pertinent part, the administrative judge discussed OPM’s reliance on 5 C.F.R. § 838.1004 . ID at 3. Among other things, the administrative judge determined that the 1998 court order did not meet the criteria under 5 C.”
Smith v. Off. of Pers. Mgmt., 578 F. App'x 973 (Fed. Cir. 2014). · cites it 2× “5 C.F.R. § 838.1004 (e)(1) (emphasis added); see also 5 C.”
Rafferty v. Off. of Pers. Mgmt. (Fed. Cir. 2005). · cites it 6× “5 C.F.R. § 838.1004 (e)(1) (2004) (emphases added).”
Couvillion v. Off. of Pers. Mgmt., 129 F. App'x 613 (Fed. Cir. 2005). “Contrary to the arguments of Couvillion, his case also does not involve 5 C.F.R. § 838.1004 (e), which pertains to survivor annuities.”
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— 5 C.F.R. § 838.1004(b) — 1 case
Petersen v. Off. of Pers. Mgmt., 180 F. App'x 153 (Fed. Cir. 2006).
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