What protection, if any, exists for a former spouse receiving military retired pay when a servicemember, who is now a Federal civil service employee, opts to waive military retired pay to credit his or her military service toward a Federal Employees Retirement System (FERS) annuity? Prior to the 1997 National Defense Authorization Act (NDAA), the answer would have been “no protection exists.” The former spouse’s award would have been wiped out. The 1997 NDAA enacted protection for the former spouse.1
The 1997 NDAA Section 637 changed the law so a retired servicemember could not waive military retired pay to credit his or her military service toward a FERS retirement annuity unless he or she consents in writing to allow the Director, OPM to deduct and pay the former spouse the same amount from the employee’s FERS annuity that is due as former spouse military retired pay.2
Speak with a qualified military and Federal civil service divorce attorney if you have questions. See OPM’s webpage on the subject for information on the waiver statement and the address to send it to DFAS-Kentucky.
Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC. The firm provides a spectrum of family law-related services to clients in the greater San Antonio region, across the United States and throughout the world. The firms also provides Wills and Estates and Probate services.
Note1 — National Defense Authorization Act for Fiscal Year 1997, Section 637, Public Law 104-102, September 23, 1996.
Note2 — 5 U.S.C.§ 8332(c)(4) (codifying the 2017 NDAA Section 637).