5 U.S.C. § 8445 — Rights of a former spouse

Page 1177 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8445 (3) The applicable amount under this para- graph for any month is the total amount of child’s insurance benefits which are payable (or would, on proper application, be payable) under title II of the Social Security Act for such month based on the wages and self-employment income of such annuitant, employee, or Member. (b) The annuity of a child under this sub- chapter— (1) commences on the day after the annu- itant, employee, or Member dies; (2) commences or resumes on the first day of the month in which the child later becomes or again becomes a student as described by sec- tion 8441(4), if any lump sum paid is returned to the Fund; or (3) commences or resumes on the first day of the month in which the child later becomes or again becomes incapable of self-support be- cause of a mental or physical disability in- curred before age 18 (or a later recurrence of such disability), if any lump sum paid is re- turned to the Fund. This annuity and the right thereto terminate on the last day of the month before the child— (A) becomes 18 years of age unless then a student as described or incapable of self-sup- port; (B) becomes capable of self-support after be- coming 18 years of age unless then such a stu- dent; (C) becomes 22 years of age if then such a student and capable of self-support; (D) ceases to be such a student after becom- ing 18 years of age unless then incapable of self-support; or (E) dies or marries; whichever occurs first. On the death of the sur- viving wife or husband, or former wife or hus- band, or termination of the annuity of a child, the annuity of any other child or children shall be recomputed and paid as though the wife or husband, former wife or husband, or child had not survived the annuitant, employee, or Mem- ber. If the annuity of a child under this sub- chapter terminates under subparagraph (E) be- cause of marriage, then, if such marriage ends, such annuity shall resume on the first day of the month in which it ends, but only if any lump sum paid is returned to the Fund, and that indi- vidual is not otherwise ineligible for such annu- ity. (Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 563; amended Pub. L. 99–556, title I, § 117(a), Oct. 27, 1986, 100 Stat. 3134; Pub. L. 104–208, div. A, title I, § 101(f) [title VI, § 633(a)(2)], Sept. 30, 1996, 110 Stat. 3009–314, 3009–363.) Editorial Notes REFERENCES IN TEXT The Social Security Act, referred to in subsec. (a)(3), is act Aug. 14, 1935, ch. 531, 49 Stat. 620. Title II of the Social Security Act is classified generally to sub- chapter II (§ 401 et seq.) of chapter 7 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables. AMENDMENTS 1996—Subsec. (b). Pub. L. 104–208 inserted at end ‘‘If the annuity of a child under this subchapter terminates under subparagraph (E) because of marriage, then, if such marriage ends, such annuity shall resume on the first day of the month in which it ends, but only if any lump sum paid is returned to the Fund, and that indi- vidual is not otherwise ineligible for such annuity.’’ 1986—Subsec. (a)(2). Pub. L. 99–556 inserted ‘‘(includ- ing any adjustment based on section 8340)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–208 applicable with re- spect to termination of marriage taking effect before, on, or after Sept. 30, 1996, except that benefits are pay- able only with respect to amounts accruing for periods beginning on first day of month beginning after the later of termination of marriage or Sept. 30, 1996, see section 101(f) [title VI, § 633(b)] of Pub. L. 104–208, set out as a note under section 8341 of this title. § 8444. Rights of a named individual with an in- surable interest The annuity of a survivor named under section 8420(a) is 55 percent of the reduced annuity of the retired employee or Member determined under paragraph (2) of such section 8420(a). The annuity of the survivor commences on the day after the retired employee or Member dies. This annuity and the right thereto terminate on the last day of the month before the survivor dies. (Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 563.) § 8445. Rights of a former spouse (a) Subject to subsections (b) through (e), a former spouse of a deceased employee, Member, or annuitant (or of a former employee or Mem- ber who dies after having separated from the service with title to a deferred annuity under section 8413 but before having established a valid claim for annuity) is entitled to an annu- ity under this section, if and to the extent ex- pressly 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-ap- proved property settlement agreement incident to such decree. (b)(1) The annuity payable to a former spouse under this section may not exceed the difference between— (A) the amount applicable in the case of such former spouse, as determined under para- graph (2); and (B) the amount of any annuity payable under this section to any other former spouse of the employee, Member, or annuitant, or former employee or Member, based on an elec- tion previously made under section 8417(b), or a court order previously issued or agreement previously entered into as described in sub- section (a). (2) The applicable amount, for purposes of paragraph (1)(A) in the case of a former spouse, is the amount of the annuity which would be payable under the provisions of section 8442 (in- cluding subsection (f) of such section, but with- out regard to subsection (h) of such section) if such former spouse were a widow or widower en- titled to an annuity under such provisions based on the service of the deceased employee, Mem- ber, or annuitant, or former employee or Mem- ber. Page 1178 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8451 (c) The commencement and termination of an annuity payable under this section shall be gov- erned by the terms of the applicable order, de- cree, agreement, or election, as the case may be, except that any such annuity— (1) shall not commence before— (A) the day after the employee, Member, or annuitant, or former employee or Mem- ber, dies; or (B) the first day of the second month be- ginning after the date on which the Office receives written notice of the order, decree, agreement, or election, as the case may be, together with such additional information or documentation as the Office may pre- scribe; whichever is later; and (2) except as provided in subsection (h), shall terminate no later than the last day of the month before the former spouse remarries be- fore becoming 55 years of age or dies. (d) For purposes of this chapter, a modifica- tion in a decree, order, agreement, or election referred to in subsection (a) shall not be effec- tive— (1) if such modification is made after the re- tirement or death of the employee, Member, or annuitant, or former employee or Member, concerned; and (2) to the extent that such modification in- volves an annuity under this section. (e) For purposes of this chapter, a decree, order, agreement, or election referred to in sub- section (a) shall not be effective, in the case of a former spouse, to the extent that it is incon- sistent with any joint waiver previously exe- cuted with respect to such former spouse under section 8416(a). (f)(1) Any amount under section 8442(b)(1)(A) which would otherwise be payable to a widow or widower based on the service of another indi- vidual shall be paid (in whole or in part) by the Office to a former spouse of such individual if and to the extent expressly provided for in the terms of a court decree of divorce, annulment, or legal separation, or the terms of a court order or court-approved property settlement incident to any decree of divorce, annulment, or legal separation. (2) Paragraph (1) shall apply only to payments made by the Office after the date of receipt in the Office of written notice of such decree, order, or agreement, and such additional infor- mation and documentation as the Office may prescribe. (g) Any payment under this section to a per- son bars recovery by any other person. (h)(1) Subsection (c)(2) (to the extent that it provides for termination of a survivor annuity because of a remarriage before age 55) shall not apply if the former spouse was married for at least 30 years to the individual on whose service the survivor annuity is based. (2) A remarriage described in paragraph (1) shall not be taken into account for purposes of section 8419(b)(1)(B) or any other provision of this chapter which the Office may by regulation identify in order to carry out the purposes of this subsection. (Added Pub. L. 99–335, title I, § 101(a), June 6, 1986, 100 Stat. 564; amended Pub. L. 105–61, title V, § 518(b)(2), Oct. 10, 1997, 111 Stat. 1308.) Editorial Notes AMENDMENTS 1997—Subsec. (c)(2). Pub. L. 105–61, § 518(b)(2)(B), sub- stituted ‘‘except as provided in subsection (h), shall’’ for ‘‘shall’’. Subsec. (h). Pub. L. 105–61, § 518(b)(2)(A), added subsec. (h). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1997 AMENDMENT Amendment by Pub. L. 105–61 applicable with respect to remarriages occurring on or after Jan. 1, 1995, see section 518(c) of Pub. L. 105–61, set out as a note under section 8341 of this title. SUBCHAPTER V—DISABILITY BENEFITS § 8451. Disability retirement (a)(1)(A) An employee who completes at least 18 months of civilian service creditable under section 8411 and has become disabled shall be re- tired on the employee’s own application or on application by the employee’s agency. (B) For purposes of this subsection, an em- ployee shall be considered disabled only if the employee is found by the Office to be unable, be- cause of disease or injury, to render useful and efficient service in the employee’s position. (2)(A) Notwithstanding paragraph (1), an em- ployee shall not be eligible for disability retire- ment under this section if the employee has de- clined a reasonable offer of reassignment to a vacant position in the employee’s agency for which the employee is qualified if the position— (i) is at the same grade (or pay level) as the employee’s most recent grade (or pay level) or higher; (ii) is within the employee’s commuting area; and (iii) is one in which the employee would be able to render useful and efficient service. (B) An employee who is applying for disability retirement under this subchapter shall be con- sidered for reassignment by the employee’s agency to a vacant position described in sub- paragraph (A) in accordance with such proce- dures as the Office shall by regulation prescribe. (C) An employee is entitled to appeal to the Merit Systems Protection Board under section 7701 any determination that the employee is not unable, because of disease or injury, to render useful and efficient service in a position to which the employee has declined reassignment under this section. (D) For purposes of subparagraph (A), an em- ployee of the United States Postal Service shall not be considered qualified for a position if such position is in a different craft or if reassignment to such position would be inconsistent with the terms of a collective-bargaining agreement cov- ering the employee. (b) A Member who completes at least 18 months of service as a Member and is found by the Office to be disabled for useful and efficient service as a Member because of disease or injury