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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 110519
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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We were married 10years (1/3 of my time in service). I will

Customer Question

We were married 10years (1/3 of my time in service). I will be eligible for retirement in 20 years when I am 60, she is one year older than me. Divorce was just finalized in February.To finalize the language for a QDRO for a FERS pension plan, as it was not addressed previously. My Exes lawyer asked me to concur with this statement to finish the information needed to finish the QDRO: If she predeceases me then her assigned benefit would be paid to her heirs and not revert back to me. I was also told that if not agreeable that they would have to file an action with the court to finalize.
The only thing I can find referencing this is under 5 U.S. Code § 8445 - Rights of a former spouse c. (2) except as provided in subsection (h), shall terminate no later than the last day of the month before the former spouse remarries before becoming 55 years of age or dies.So I don’t think that this part in the US Code allows her to pass on anything, regardless of QDRO language, to anyone (children or spouse (assuming she marries after 55)) after she starts collecting.Other than that I found that if before retirement age children are under 18 or 22, if in college, can receive part of the pension entitlement…. which my youngest will be 22 when she is 55. If this happened would it impact my pension payout?What other down sides are there to agreeing to this? I feel there is something impactful to me if she remarries.
Submitted: 5 months ago.
Category: Family Law
Expert:  Law Educator, Esq. replied 5 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
First of all, that clause is not mandatory in the QDRO, but I am afraid that the 5 USC 8445 language you pulled out is only part of that code and it also says, "if and to the extent expressly provided for in an election under section 8417(b), or in the terms of any decree of divorce or annulment or any court order or court-approved property settlement agreement incident to such decree." This means if the court order or decree specifies otherwise then that can be changed.
I would not advise you to sign that or agree to it unless your children only would be beneficiaries and not just her heirs, which could be her new spouse if she remarries. If you have no issues with your children getting the money if she dies, then you need to insist on that modification AND if she refuses then you can make her look bad in arguing that the way it is written her new spouse could get the money and this is not about any new spouse.
The big downside though is just that, if she remarries and then dies, the payment goes then to her new spouse as surviving spouse as well as the children in shares.
Customer: replied 5 months ago.
One thing that I'm confused about is. Say she passes when she's 70 and has been collecting. Would the benefit still go to either a spouse or the kids? Would that only not happen if I pass first?
Expert:  Law Educator, Esq. replied 5 months ago.
Thank you for your reply.
If she passes when 70 according to that clause the payments would go to her surviving spouse and your children, who would be her heirs. Even if you pass first or not it still goes to her as her marital share the way you said it is written and it is asking for way too much.
Customer: replied 5 months ago.
If I pass and am unmarried I'm pretty sure my pension would not go to my kids. Why would hers if unmarried?
Expert:  Law Educator, Esq. replied 5 months ago.
Thank you for your reply.
Unless you make your kids or surviving spouse beneficiary it would not pass to them if you die. The only reason it would go to them if she dies would be if you sign this QDRO essentially making her heirs beneficiary of her marital share of your pension. Again, I would never sign it with that clause in there.
Customer: replied 5 months ago.
I'm confused on when any type of pension pay out would end then
Expert:  Law Educator, Esq. replied 5 months ago.
Upon death of her heirs the way that clause is written. Again most courts will not order that clause and her attorney is trying to slip one over on you and everyone else.
Customer: replied 5 months ago.
What happens to the pension if no clause about heirs is included in the QDRO, if the above is not included and she passes? If I'm alive? If I'm deceased and left a widow? Would this revert back to me? Or to my widow?
Expert:  Law Educator, Esq. replied 5 months ago.
Thank you for your reply.
If there is no clause, then at her death her payments cease and they can revert back to you getting the whole payment. If you die first, she would just continue getting her payment until she dies.
Your widow would not get your share unless you select that beneficiary option upon retirement.
Customer: replied 5 months ago.
In the case where I die first and I've selected my widow as beneficiary would any revert to back to my widow after my ex passes?
Expert:  Law Educator, Esq. replied 5 months ago.
Thank you for your reply.
Yes, if you do not agree to the clause above as suggested by your ex in the QDRO it would.

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