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Lawrence D. Gorin
Lawrence D. Gorin, Family Law Attorney
Category: Family Law
Satisfied Customers: 1505
Experience:  30+ years family law experience. QDROs, UIFSA, UCCJEA expertise.
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What is the proper legal language for a court order when the

Customer Question

What is the proper legal language for a court order when the court has ordered that the former spouse be listed as the beneficiary for the military survivor benefit plan. I know that a deemed election form is required along with the court order. Does the benefit have to be shown? The retiree retired in 1986 and selected the flat rate of 6.5%. We were divorced in 2006 and at that time he did not choose to change his benefits to read former spouse. The property settlement has been through appeals and we are now working on the final court order which includes the SBP
Submitted: 3 years ago.
Category: Family Law
Expert:  Lawrence D. Gorin replied 3 years ago.
Try this.....

MILITARY BENEFITS COURT ORDER:

THIS CAUSE came before the undersigned judge upon Wife’s claim for distribution of Husband’s military retirement benefits. [if entered as a consent order, add next sentence] The parties agree to the entry of the following military pension division order to assign to Wife a portion of those benefits. The court makes the following:

FINDINGS OF FACT:

1. Wife is a resident of [County] [State]. Husband is a resident of [County] [State]. The parties were married on [date]. They were divorced in [County] [State] on [date].

2. Wife's address, date of birth and social security number are as follows:

3. Husband's address, date of birth and social security number are as follows:

4. The marital portion of the uniformed services retired pay of Husband (hereafter military pension or retired pay) is subject to marital property division. Wife is entitled to a share of Husband’s military retirement benefits, as set out in the Decree below. Wife’s entitlement to retired pay accrues upon the retirement of Husband. The remaining portion of Husband’s military retired pay is the sole and separate property of Husband.

5. Husband retired in 1986 with the rank of _________ in the U.S. Coast Guard with _____ years of creditable military service and is currently receiving $______ per month as disposable retired pay, subject to cost of living adjustments as provided by law.

6. Husband’s rights under the Servicemembers Civil Relief Act, 50 U.S.C. App. § 501 et seq., have been observed and honored.

7. The parties have agreed that Wife shall receive her full share of Husband’s military retired pay, calculated as set out below and without reduction for disability payments (VA disability pay, disability severance pay, military disability retired pay, or any other reason). For the purposes of their settlement herein, military retired pay includes retired pay actually paid or to which Husband would be entitled based only on length of Husband’s creditable service.

8. Wife is entitled to former spouse coverage as the beneficiary of Husband’s Survivor Benefit Plan (SBP) as set out below.

CONCLUSIONS OF LAW:

1. This court has jurisdiction over the subject matter of this action and the parties hereto.

2. Wife is entitled to an assignment of Husband’s military retirement benefits as set forth herein, subject to the conditions set forth in the Decree below.

3. The facts above are incorporated herein by reference to the extent that they represent conclusions of law.

4. The terms of this order are fair, reasonable, adequate and necessary.

5. The parties have knowingly and voluntarily consented to this order.

6. The parties are entitled to the relief granted below.

NOW THEREFORE, IT IS HEREBY ORDERED:

1. Wife, as husband's former spouse, is awarded and is entitled to receive, as a division of marital property, fifty percent (50%) of each monthly payment of disposable retired pay to which Husband is otherwise entitled to receive, subject to cost of living adjustments as provided by law. [Note: If not 50%, insert such other percentage as agreed by the parties or ordered by the court.]

2. Wife shall receive payments at the same time as Husband. The parties acknowledge that DFAS is not required to begin payments to the former spouse until 90 days after receipt of an acceptable order or the start of retired pay, whichever is later. Husband shall be responsible for making these payments each month to Wife until DFAS begins making these payments to her, and during this interim, Husband will pay Wife directly her full share. Payments are due on the first day of each month. The parties agree that the periodic payments made by Husband to Wife for this interim period of time until direct payments commence from DFAS shall be included in Wife’s income under Section 71 of the Internal Revenue Code, and these payments are likewise deductible from Husband’s gross income.

3. When DFAS has determined that this order meets the requirements of the applicable federal law as a military pension division order, then it shall carry out the provisions of this order and shall give written notice to Wife (at her address set out above) that this order complies with said requirements.

4. Wife shall notify DFAS in writing about any changes in her address or in this document affecting these provisions of it, or in the eligibility of any recipient receiving benefits pursuant to it.

5. Husband shall provide promptly to Wife any information that she needs in order to have this order honored for direct payment of military pension benefits and shall keep her informed at all times of his current address.

6. In order to effectuate direct payments from DFAS, Wife shall tender a certified copy of this order to DFAS along with a certified copy of the parties’ divorce decree and an executed DD Form 2293.

7. The parties have agreed upon a set level of payments to Wife to guarantee income to her, based upon Husband’s present amount of military retired pay without any additional deductions for disability payments, over and above his present percentage disability rating, or for any other reason. In the event of any intentional action by Husband that results in a reduction of Wife’s share of disposable retired pay (such as may occur if Husband waives retired pay in order to receive VA disability compensation), Husband shall indemnify wife on account of any such reduction or loss of wife’s share of husband’s disposable retired pay, and Wife shall have a cause of action against Husband on account thereof.

8. If either party shall violate this court order, then the court shall indemnify the party seeking enforcement and shall award damages, interest at the statutory rate, and reasonable expenses and attorney’s fees to that party.

9. The monthly payments herein shall be paid to Wife regardless of her marital status and shall not end at remarriage. Any future overpayments to Wife by DFAS are recoverable and subject to involuntary collection from Wife or from the estate of
Wife.

10. Wife shall be responsible for the taxes on her share of Husband’s military retired pay received from DFAS (or from Husband directly). Wife shall not be entitled to any portion of retired pay upon the death of either party. (But wife shall be entitled to Survivor Benefit Plan (SBP) annuity benefits as otherwise provided for hereinbelow.)

11. Husband shall provide coverage for Wife through the Survivor Benefit Plan (SBP) as follows:
-----> a. Husband shall elect SBP coverage for Wife, designating Wife as his former spouse beneficiary, with his full amount of monthly retired pay as the base amount for SBP annuity benefits. Husband shall do nothing to reduce or eliminate Wife’s benefits.
-----> b. Wife shall effectuate a deemed election for former spouse coverage within one year of the entry of this order by sending a certified copy of this order to DFAS along with a certified copy of the divorce decree and an executed DD Form 2656-10.
-----> c. If Husband does anything that changes the former spouse election, then an amount equal to the present value of SBP coverage for Wife shall, at the death of Husband, become an obligation of his estate. In addition, Wife shall be entitled to such remedies for breach as are available to her in a court of law.

Date:_______________, 2011.

_________________________
Judge Presiding

WE CONSENT:

____________________________

____________________________
[signatures of parties, preferably with acknowledgments]

===================================
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Lawrence D. Gorin, Family Law Attorney
Category: Family Law
Satisfied Customers: 1505
Experience: 30+ years family law experience. QDROs, UIFSA, UCCJEA expertise.
Lawrence D. Gorin and 4 other Family Law Specialists are ready to help you
Customer: replied 3 years ago.
What is the proper legal language for a court order that gives 50% of the spouses retirement benefits and includes wife to be given survivor benefits from the United States Post Office. Like with the coast guard certain laws apply but I am not sure the wording is correct for the office of personnel management requirements. There is no thrift savings benefits; that was withdrawn after he retired.
Expert:  Lawrence D. Gorin replied 3 years ago.
YOUR NEXT QUESTION:
What is the proper legal language for a court order that gives 50% of the spouses retirement benefits and includes wife to be given survivor benefits from the United States Post Office. Like with the coast guard certain laws apply but I am not sure the wording is correct for the Office of Personnel Management requirements. There is no TSP, as that was withdrawn after he retired.

ANSWER:

MODEL FORM -- CSRS or FERS

NOTE: This form provides for payment of court-ordered benefits to former spouse of civilian federal employee or retiree.

(Retirement system is CSRS, but FERS may be substituted for CSRS if desired; 50 percent of gross employee annuity and maximum former spouse service annuity awarded to Former Spouse; payment of refund of employee contributions barred; employee not retired and not separated from Federal service; "Retiree" should be substituted for "Employee" if employee has retired from Federal service.)


IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
Case No. _______________

In re Marriage of
__________________ (Petitioner)
and
__________________(Respondent)

COURT ORDER ACCEPTABLE FOR PROCESSING

WHEREAS, a Decree of Divorce terminating the marriage of the above-named parties was entered on _______________ , which decree approved and incorporated a Property Settlement Agreement dated _______________ , that was duly executed by ___________________ , the Petitioner and by ____________________ , the Respondent; and

WHEREAS, the Divorce Decree and Property Settlement Agreement require the entry of a Court Order Acceptable for Processing by this court providing for the division and distribution of the marital portion of the benefits and benefit rights of the Respondent under the Civil Service Retirement System (CSRS); and

WHEREAS, the terminology used in the provisions of this Order dealing with benefits under the Civil Service Retirement System (CSRS) are governed by and were drafted in accordance with the standard conventions established in Part 8 of Title 5 of the Code of Federal Regulations (5 CFR 838); and

WHEREAS, this Order is issued in connection with the divorce of a Federal employee or retiree, is a "court order" as that term is defined in 5 CFR 838.103, and is intended to be a "court order acceptable for processing" as that term is defined in 5 CFR 838.103.

Now Therefore, upon the request of counsel,

THE COURT HEREBY FINDS AND ORDERS AS FOLLOWS:

1. Authority For Order. This Order is entered pursuant to the authority granted in the domestic relations law of the State of ____________________ .

2. Employee Information. The Employee is alive and has not retired under CSRS. The infor mation listed below with respect to the Employee is found to be correct as the date of this Order:

Name of Employee:
Address:
Date of Birth:
Social Security Number:
CSRS Claim Number:

3. Former Spouse Information. The Former Spouse is alive and has not remarried. The information listed below with respect to the Former Spouse is found to be correct as of the date of this Order:

Name of Former Spouse:
Address:
Date of Birth:
Social Security Number:

4. Identification of Retirement System. The Employee is or will be eligible for retirement ben efits under the Civil Service Retirement System (CSRS) based on employment with the United States Government.

5. Entitlement to Benefits. The Former Spouse is found to be entitled to the share of the Employee's gross monthly annuity under CSRS awarded in paragraph 6 of this Order. The Former Spouse is also found to be entitled to a former spouse survivor annuity should the Employee prede cease the Former Spouse. The United States Office of Personnel Management is hereby directed to pay the benefits awarded or assigned to the Former Spouse under this Order directly to the Former Spouse, except as provided in paragraph 8 of this Order.

6. Amount of Former Spouse's Share of Employee Annuity. The Former Spouse is entitled to and is hereby assigned and awarded an amount equal to 50 percent (50%) of the marital portion of the Employee's gross monthly annuity determined as of the Employee's date of retirement. The marital portion of the Employee's gross monthly annuity shall be determined by multiplying the gross monthly annuity by a fraction, the numerator of which is the total number of months of the Employee's creditable service under CSRS during the marriage of the parties and the denominator of which is the Employee's total number of months of creditable service accrued under CSRS, including military service credited to CSRS. The marriage of the parties began on _______________ and ended on _______________ . The Former Spouse's share of the Employee's gross monthly annuity shall be calculated without regards XXXXX XXXXX amounts that are withheld from the Employee's annuity for any reason, including amounts withheld for the purpose of providing a former spouse survivor annuity.

7. Payment of Former Spouse's Share of Employee Annuity. The Former Spouse shall begin receiving her share of the Employee Annuity benefits as soon as administratively feasible after the date that this order is approved as a Court Order Acceptable for Processing or on the date that the Employee begins receiving benefits, if that date is later. Such payments shall continue to the Former Spouse for the remainder of the Employee's lifetime except as provided in paragraph 8 of this Order. The Employee is ordered to arrange or execute all forms necessary for the commencement of pay ments to the Former Spouse in accordance with the terms of this Order.

8. Payment of Employee Annuity if Former Spouse Predeceases Employee. Should the Former Spouse die before the Employee, the United States Office of Personnel Management is directed to pay the Former Spouse's share of the employee annuity, as described in paragraph 6 of this Order, to the surviving children of the parties in equal shares. Upon the death of any child, that child's share shall be paid to the then surviving children of the parties in equal shares.

9. Cost of Living Adjustments. The Employee is or will be eligible for cost-of-living adjust ments to his retirement benefits. When cost-of-living adjustments are applied to the Employee's retirement benefits, the same cost-of-living adjustments shall be applied to the Former Spouse's share of the benefits. The United States Office of Personnel Management is directed to pay the Former Spouse's share of any such adjustments directly to the Former Spouse except as provided in paragraph 8 of this Order.

10. Refunds of Employee Contributions. If the Employee leaves the Federal service before retirement and applies for a refund of employee contributions, the United States Office of Personnel Management is directed not to pay the Employee a refund of employee contributions.

11. Former Spouse Survivor Annuity. Under the authority of Section 8341(h)(1) of Title 5, United States Code, the Former Spouse is hereby awarded the maximum possible former spouse sur vivor annuity under CSRS. The cost of the annuity shall be paid from the Employee's annuity and not from the Former Spouse's share of the employee annuity.

12. Transfer to FERS. If the Employee makes a one-time irrevocable election to transfer from the CSRS to the Federal Employee's Retirement System (FERS), before retirement, the Former Spouse shall then be entitled to a share of the Employee's basic annuity under FERS calculated in the manner set forth in paragraph 6 of this Order. The Former Spouse shall also be entitled to a former spouse survivor annuity payable under the FERS in the maximum amount allowable under FERS. [NOTE: Omit if this is a FERS order.]

13. Reimbursement. If the benefits awarded or assigned to the Former Spouse in this Order are inadvertently or erroneously paid by CSRS or FERS to the Employee, the Employee shall imme diately reimburse the Former Spouse for such benefits by paying directly to the Former Spouse an amount equal to the benefits inadvertently or erroneously received.

14. Construction of Order. This Order is not intended, and shall be construed so as, to require the United States Office of Personnel Management to: (a) pay the Former Spouse a portion of the Employee annuity before it begins to accrue, (b) pay the Former Spouse amounts that are in excess the Employee's net annuity, or (c) pay a former spouse survivor annuity in excess of the maximum amounts permitted under CSRS or FERS, whichever is applicable.

15. Continued Jurisdiction. The Court shall retain jurisdiction with respect to this Order for the purposes of maintaining the status of this Order as a Court Order Acceptable for Processing and interpreting and carrying out the provisions of this Order.

Dated:_______________________, 2011.

________________________________
J U D G E

Submitted by
LAWRENCE D. GORIN, OSB #73109
Attorney for Petitioner

===========================

NOTE: I do hope you understand that JustAnswer.com is a pay-per-question website. Your prior question was fully answered (and Accepted, for which I say thank you). You are now asking an entirely new question, unrelated to the earlier question. Properly, it should be separately posted. Nonetheless, as a courtesy to you (since we are already here), I have proceeded to post an ansser. I would suggest, however, an another
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Edited by Lawrence D. Gorin on 1/2/2011 at 9:45 PM EST
Customer: replied 3 years ago.
Does the language change if the employee is already retired as in # XXXXX And in #3 it says not remarried. I am remarried now.
Expert:  Lawrence D. Gorin replied 3 years ago.
NEED MORE INFO....
At what age did you remarry?
Expert:  Lawrence D. Gorin replied 3 years ago.
YOUR FURTHER QUESTION:
Does the language change if the employee is already retired as in # XXXXX And in #3 it says not remarried. I am remarried now.

ANSWER:
YES, changes need to be made.

Paragraph #2 should read:
2. Employee Information. The Employee is alive, has retired, and is currently receiving FERS benefits. The information listed below with respect to the Employee is found to be correct as the date of this Order:

Paragraph #3 should read:
3. Former Spouse Information. The Former Spouse is alive and has remarried. The information listed below with respect to the Former Spouse is found to be correct as of the date of this Order:

Also, paragraph # XXXXX needs to be amended:
11. Former Spouse Survivor Annuity. Under the authority of Section 8445 of Title 5, United States Code, the Former Spouse is hereby awarded the maximum possible former spouse survivor annuity under FERS. The cost of the annuity shall be paid from the Employee's annuity and not from the Former Spouse's share of the employee annuity. This award shall not be effective if the Former Spouse remarries prior to age 55, except, however, that a remarriage before age 55 shall not affect this award if the Former Spouse was married for at least 30 years to the Employee. on whose service the survivor annuity is based.

===========================
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