5 C.F.R. § 838.222

OPM action on receipt of a court order acceptable for processing

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(a) If OPM receives a court order acceptable for processing that is directed at an employee annuity that is in pay status, OPM will inform—

(1) The former spouse—

(i) That the court order is acceptable for processing;

(ii) Of the date on which OPM received the court order, the date on which the former spouse's benefit begins to accrue, and if known, the date on which OPM commences payment under the order;

(iii) Of the amount of the former spouse's monthly benefit and the formula OPM used to compute the monthly benefit; and

(iv) That, if he or she disagrees with the amount of the monthly benefits, he or she must obtain, and submit to OPM, an amended court order clarifying the amount; and

(2) The retiree or phased retiree—

(i) That the former spouse has applied for benefits under this subpart;

(ii) That the court order is acceptable for processing and that OPM must comply with the court order;

(iii) Of the date on which OPM received the court order, the date on which the former spouse's benefit begins or accrue, and if known, the date on which OPM commences payment under the court order;

(iv) Of the amount of the former spouse's monthly benefit and the formula OPM used to compute the monthly benefit;

(v) That, if he or she contests the validity of the court order, he or she must obtain, and submit to OPM, a court order invalidating the court order submitted by the former spouse; and

(vi) That, if he or she disagrees with the amount of the former spouse's monthly benefits, he or she must obtain, and submit to OPM, an amended court order clarifying the amount.

(b) If OPM receives a court order acceptable for processing that is directed at an employee annuity but the employee has died, or if a retiree or phased retiree dies after payments from the retiree or phased retiree to a former spouse have begun, OPM will inform the former spouse that the employee, or retiree, or phased retiree has died and that OPM can only honor court orders dividing employee annuities during the lifetime of the retiree or phased retiree.

(c) If OPM receives a court order acceptable for processing that is directed at an employee annuity that is not in pay status, OPM will inform—

(1) The former spouse—

(i) That the court order is acceptable for processing;

(ii) That benefits cannot begin to accrue until the employee retires, or enters phased retirement status;

(iii) To the extent possible, the formula that OPM will use to compute the former spouse's monthly benefit; and

(iv) That, if he or she disagrees with the formula, he or she must obtain, and submit to OPM, an amended court order clarifying the amount; and

(2) The employee, separated employee, retiree, or phased retiree—

(i) That the former spouse has applied for benefits under this subpart;

(ii) That the court order is acceptable for processing and that OPM must comply with the court order;

(iii) To the extent possible, the formula that OPM will use to compute the former spouse's monthly benefit;

(iv) That, if he or she contests the validity of the court order, he or she must obtain, and submit to OPM, a court order invalidating the court order submitted by the former spouse; and

(v) That, if he or she disagrees with the amount of the former spouse's monthly benefits, he or she must obtain, and submit to OPM, an amended court order clarifying the amount.

(d) The failure of OPM to provide, or of the employee, separated employee, retiree, phased retiree or the former spouse to receive, the information specified in this section prior to the commencing date of a reduction or accrual does not affect—

(1) The validity of payment under the court order; or

(2) The commencing date of the reduction in the employee annuity or the commencing date of the accrual of former spouse benefits as determined under § 838.231.

[57 FR 33574, July 29, 1992, as amended at 79 FR 46626, Aug. 8, 2014]

Notes of Decisions

Cited in 6 cases (3 in the last 5 years), 2001–2024 · leading case: William H. Perry, Ii, Etitioner v. Off. of Pers. Mgmt.,respondent, 243 F.3d 1337 (Fed. Cir. 2001).

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William H. Perry, Ii, Etitioner v. Off. of Pers. Mgmt.,respondent, 243 F.3d 1337 (Fed. Cir. 2001). “5 C.F.R. §§ 838.222 (a)(2)(vi), (c)(l)(iv), (c)(2)(v); 838.”

Stare v. Stare, Unpublished Decision (9-8-2004), 2004 Ohio 4770 (Ohio Ct. App. 2004). “, 5 CFR 838.222 . 3 The following provision in the decree is further suggestive that the QDRO was meant to fill in certain gaps: " Important Note: In the event that the Plan does not permit Defendant to receive her benefits in the form of an actuarially equivalent life annuity…”

Rosemary Irving v. Off. of Pers. Mgmt. (MSPB 2022). · cites it 3× “Citing 5 C.F.R. § 838.222 , the administrative judge found that the appellant is not entitled to any retirement benefit because her former husband was not receiving an annuity at the time of his death.”

Couvillion v. Off. of Pers. Mgmt., 129 F. App'x 613 (Fed. Cir. 2005). “” 5 C.F.R. § 838.222 (c) (2005). If OPM determines that a decree is “acceptable for processing,” OPM notifies both the potential retiree and the former spouse that the order is “acceptable for processing” and that OPM must comply with the order.”

Kurt J Hein v. Terri Jo Hein (Mich. Ct. App. 2021). “Similarly, 5 CFR § 838.222 (b) provides “that OPM can only honor court orders dividing employee annuities during -5- the lifetime of the retiree or phased retiree.”

Gerald J Bialas v. Off. of Pers. Mgmt. (MSPB 2024). “ID at 8-9; IAF, Tab 16 at 66-69; see 5 C.F.R. § 838.222 (d). We find that the appellant has failed to provide a basis to disturb the administrative judge’s well-reasoned finding.”

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