Divorce is a sensitive topic, but an all too familiar occurrence in the Foreign Service. It can be a difficult and emotionally trying time and, unfortunately, the stress and hardship can recur when you least expect it, at the time of retirement.
Cases arise from time to time in which a divorced Foreign Service employee finds that his or her divorce decree or court order does not meet the State Department’s strict language requirements for waiving the ex-spouse’s entitlement to a portion of his or her annuity under Section 861 of the Foreign Service Act. In the unfortunate event of a divorce or separation, it is vitally important to be aware that any spousal agreement or court order that waives retirement benefits that are due under the Foreign Service Act to a former spouse must do so expressly. The term “expressly” is used in the Foreign Service Act and has been interpreted as requiring that any spousal agreement or court order that waives retirement benefits that are due under the Foreign Service Act to a former spouse must specifically refer to Foreign Service retirement benefits and cannot merely mention generic retirement benefits, nor can they refer erroneously to
FERS retirement benefits.
There is often a lot of confusion about the share the spouse is entitled to after divorce. The maximum of the pro rata share
would be half the retirement if the employee and spouse were married the entire time, he/ she was in the FS. Determining the pro rata share means creating a fraction: the numerator of the fraction is the years married while in the Foreign Service (not the total years married) and the denominator is the years the employee was in the FS. So if the divorced spouse was married to the FS employee for 10 years while in the service ( the minimum qualifying years) and the employee spent 30 years in the FS , the spouse, at retirement, would be entitled to 1/3 of the pro rata share. Essentially 1/3 of 1/2 or 1/6 of the retirement pension.
To expressly waive benefits, any spousal agreement or court order must sufficiently identify the retirement system involved. To leave no room for doubt, the words Foreign Service, FSRDS or FSPS must appear in the document. AFSA recently met with representatives from the State Department’s Office of Retirement and Office of Employment Law to discuss this issue and find out what the term “expressly” means and why they have come to this interpretation. One of the main reasons for the current interpretation of a valid divorce decree has to do with language found in the Foreign Service Act of 1980. The language is there to protect the former spouse and states what benefits are provided as default to a former spouse who qualifies unless expressly provided otherwise.
There are several previous court cases at the state and federal level that have ruled a valid divorce decree must include the
phrase “Foreign Service” and refer to the correct retirement plan. The Office of Retirement recently updated the AskRNet portion of its website, rnet.state.gov, to include the following question: How can a former Foreign Service spouse waive his/her default retirement benefits?
The Office of Retirement also developed a 69-page divorce handbook for employees to use with their attorneys. They have
agreed to update the handbook to include sample language from valid divorce decrees and will highlight the answer to the previous AskRNet question.
AFSA learned during this meeting that any Foreign Service employee can send draft language of a divorce decree to the
State Department’s Office of Retirement for approval, regardless of the foreign affairs agency for which they work. If you are in the divorce process or have recently been divorced, you should send your divorce decree to HRSC@state.gov,
whether or not you are retiring soon. It is particularly important that the Office of Retirement has a valid decree on file prior to when you start the retirement process.
AFSA will continue to work with the Office of Retirement to make sure this information gets out and is known among all the foreign affairs agencies. Last year AFSA hosted a seminar on divorce in the Foreign Service and created the web page afsa.org/divorce providing important resources, including the video from the
seminar.
If you have any other questions or concerns please do not hesitate to contact Matt Sumrak, sumrak@afsa.org or Todd
Thurwachter, thurwachter@afsa.org.