Getting A Domestic Relations Order Implemented Without Writing An Order

Not many attorneys are aware that in some special situations involving federal and military pensions it is possible to structure the final decree with enough specificity to avoid the drafting of a separate order. This would apply to Uniformed Services Former Spouse’s Protection Act Orders and Domestic Relations Orders directed to federal employers. There are many more federal non-military plans than just the U.S. Civil Service and Federal Employees Retirement System (FERS). The U.S. State Department has a plan as does the U.S. Public Health Service and I am sure other agencies, of which I have never heard, that have there own special plans.

In order to avoid the preparation of a separate order you must first contact the agency and get from them their requirements for acceptance of a domestic relations order. Each plan has their own. The military requires numerous specific recitations in the final decree and the completion of a number of Department of Defense forms by the alternate payee before they will implement the order. But they will do so without a separate Uniformed Services Former Spouse’s Protection Act Order if all the ducks are in a row. The Federal Office of Personnel Management has a large handbook that can be purchased that covers every conceivable situation dealing with U.S. Civil Service and FERS plans. The Federal Thrift Plan is managed separately, so you will have to get their guidelines if a Thrift Plan is included in the distribution.

The benefit to your client is that he or she will not have to incur the expense of the preparation of a separate order. Obviously, this will mean more work for you if you usually have a service prepare the order and pass on the expense to your client, but as we all know, there are occasions when getting paid is doubtful, and paying for the preparation of the order by a service, out of your own pocket, may just be money you will never see again.

Even though the plan provider is providing you with their guidelines, it is probably not a good idea for you to try to structure the final decree to meet their specifications, while protecting the interests of your client at the same time, if you are not comfortable drafting domestic relations orders. That exercise can turn into a nightmare, as many agencies will not pre-approve a final decree and if the decree is rejected by the plan you will have to go back for an amended final decree which seems a little riskier than going back to the judge with some changes in a domestic relations order to meet the plan’s requirements. Also, many clients do not like their dirty laundry being aired to their employer as can be the case when the whole final decree is submitted.

I am giving away some trade secrets here but if you employ an expert to write your settlement language dealing with the retirement asset distributions, you can advise that you want to include all the language necessary to incorporate into the settlement that will meet the guidelines of the plan to accept the incorporated settlement agreement in the final decree as a domestic relations order. Not all will do this, and most will charge more than they usually charge for just the settlement language, but it will be much cheaper than preparing a separate order after or coincident with the final decree.

Whether or not you ever attempt to incorporate a federal domestic relations order in your final decree is up to you. It really depends on how comfortable you are working in the area of pensions and defined contribution accounts.  Also, some plans, like the U.S. Military Reserve or the National Guard, are going to take a little basic arithmetic skill to figure out what the non-participant spouse would be entitled to receive under the point system they use to compute a pension. But, as necessity is the mother of invention, at least you know that if the financial need presents itself, under certain circumstances, there are alternatives to drafting a separate order.