Legal Memorandum: Share of a Spouse's Retirement Benefits

Issue: Under Oklahoma law, may a court in a marital dissolution action award a share of a spouse’s gross federal civil service retirement benefits?

The case of Snyder v. Office of Personnel Mgmt., 136 F.3d 1474, 1477 (Fed. Cir. 1998) recognizes the OPM’s role as following the clear instructions of the court without interpretation or construction of the order.  See also 5 C.F.R. § 838.101(a)(2) (2003). 

Under OPM regulations, “pro rata share” is a specifically defined term.  It means “one-half of the fraction whose numerator is the number of months of Federal civilian and military service that the employee performed during the marriage and whose denominator is the total number of months of Federal civilian and military service performed by the employee.”  5 C.F.R. § 838.621 (2003).  By granting a pro rata share, the court allows a former spouse the benefit of all salary adjustments and cost of living adjustments earned by the employee spouse after the date of the decree and before the date of retirement.  Id. § 838.622(a), (b)(1).  To prevent this situation, the court’s Order Acceptable for Processing must “directly and unequivocally” order that such adjustments do not apply to the former spouse’s share.  Id. § 838.622(b)(1), (c)(1)(ii). 

In fact, under Oklahoma law a court does not have jurisdiction to divide a divorcing spouse’s salary increases or cost of living adjustments that may or may not accrue after the date of the divorce.  The Oklahoma Court of Appeals has held that unvested potential and even vested contingent increases were not properly divisible property in a divorce action.  Charles v. Charles, 713 P.2d 1048, 1051 […]