5 C.F.R. § 838.806

Amended court orders

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(a) A court order awarding a former spouse survivor annuity is not a court order acceptable for processing if it is issued after the date of retirement or death of the employee and modifies or replaces the first order dividing the marital property of the employee or retiree and the former spouse.

(b) 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 survivor annuity, the court order must be—

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

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

(c) A court order that awards a former spouse survivor annuity and that is issued after the first order dividing the marital property of the retiree and the former spouse has been vacated, set aside, or otherwise declared invalid is not a court order acceptable for processing if—

(1) It is issued after the date of retirement or death of the retiree;

(2) It changes any provision concerning a former spouse survivor annuity in the court order that was vacated, set aside or otherwise declared invalid; and

(3)(i) The court order is effective prior to the date when it is issued; or

(ii) The retiree and former spouse do not compensate the Civil Service Retirement and Disability Fund for any uncollected annuity reduction due as a result of the court order vacating, setting aside, or otherwise invalidating the first order terminating the marital relationship between the retiree and the former spouse.

(d) In this section, “date of retirement” means the later of—

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

(2) The effective commencing date for the employee's annuity other than the commencing date of a phased retirement annuity.

(e) In 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).

(f)(1) In this section, the “first order dividing the marital property of the retiree and the former spouse” means—

(i) 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

(ii) 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.

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

(i) 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

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

[57 FR 33574, July 29, 1992, as amended at 58 FR 3202, Jan. 8, 1993; 79 FR 46631, Aug. 8, 2014]

Notes of Decisions

Cited in 23 cases (5 in the last 5 years), 1997–2026 · leading case: Anna M. Rafferty v. Off. of Pers. Mgmt., 407 F.3d 1317 (Fed. Cir. 2005).

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Anna M. Rafferty v. Off. of Pers. Mgmt., 407 F.3d 1317 (Fed. Cir. 2005). · cites it 4× “” 5 C.F.R. § 838.806 (a) (2004) (emphasis added).”

Hayward v. Off. of Pers. Mgmt., 578 F.3d 1337 (Fed. Cir. 2009). · cites it 3× “§ 8341 (h)(4) and 5 C.F.R. § 838.806 (a) for purposes of a former spouse survivor annuity.”

Mary Warren v. Off. of Pers. Mgmt., 407 F.3d 1309 (Fed. Cir. 2005). “See 5 C.F.R. § 838.806 (a) (stating that “[a] court order awarding a former spouse survivor annuity is not a court order acceptable for processing if it is issued after the date of retirement or death of the employee and modifies or replaces the first order dividing the marital…”

Wahl v. Wahl, 945 P.2d 1229 (Alaska 1997). “§ 8341 (h)(1); 5 C.F.R. § 838.806 . The superior court determined that llene is entitled to one-third of Jerrold’s entire retirement annuity.”

Hinojosa v. Off. of Pers. Mgmt., 205 F. App'x 843 (Fed. Cir. 2006). · cites it 5× “Hinojosa’s claim for a survivor annuity, finding that the July Order was the first order dividing marital property and that the October Order was an impermissible modification of the July Order because, under 5 C.F.R. § 838.806 , a first order dividing marital property cannot be…”

Adler v. Off. of Pers. Mgmt., 437 F. App'x 928 (Fed. Cir. 2011). “See 5 C.F.R. § 838.806 (a); [A76]. This court agrees, and therefore finds no merit to the argument that this somehow implicates the validity of the Order.”

Cheryl Rivera v. Jack Lew, 99 A.3d 269 (D.C. 2014). “” 5 C.F.R. § 838.806 (a) (2009). No similar statutes or regulations focusing on the death of the employee have been adopted by the Mayor or Council of the District of Columbia.”

Robert L. Britton v. Off. of Pers. Mgmt. (MSPB 2026). · cites it 3× “5 C.F.R. § 838.806 (b). A court order that fails to meet either of these requirements is not acceptable for processing by OPM.”

Alan W. Carter v. Off. of Pers. Mgmt. (MSPB 2015). · cites it 5× “The administrative judge found that the language of 5 C.F.R. § 838.806 (b) allowed for the processing of the amended DRO because it was issued before the appellant died.”

Carter v. Off. of Pers. Mgmt., 626 F. App'x 979 (Fed. Cir. 2015). · cites it 5× “OPM notified Alan that, under 5 C.F.R. § 838.806 , it could not process the request.”

Partain v. Off. of Pers. Mgmt., 63 F. App'x 473 (Fed. Cir. 2003). “See 5 C.F.R. § 838.806 (a) (2002). We have held that both the statute and regulation mean what they say, namely that court orders entered after an employee retires or dies cannot modify the first order entered that specifies the former spouse survivor annuity.”

Teresa Capps v. Off. of Pers. Mgmt. (MSPB 2026). · cites it 2× “The regulation at 5 C.F.R. § 838.806 (b) discusses amended court orders.”

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