Dividing Federal Employees’ Retirement System (FERS) in a Virginia Divorce

In Virginia divorces, retirement benefits earned during the marriage are often considered marital property by the court. When a couple divorces, the court must determine how to equitably divide their marital property (the property acquired over the course of the marriage). You can learn more about equitable distribution here. If either spouse is a federal employee eligible for benefits under the Federal Employees’ Retirement System (FERS), there are important considerations that come into play regarding the division of those retirement benefits.

What is FERS?

FERS was created by Congress in 1986 to replace the Civil Service Retirement System (CSRS). Most full-time federal employees hired after January 1, 1987, are covered under FERS. The FERS retirement plan has three components: Basic Benefit Plan, Social Security, and the Thrift Savings Plan (TSP). You can learn more about the Thrift Saving Plan here.

The FERS Basic Benefit Plan is the federal government’s version of a pension plan. Both the federal employees and government agencies contribute to the plan. Once the employee retires, the contributions translate into a monthly pension payment.

How is FERS Different from Private Sector Plans?

Dividing FERS in a divorce follows different rules compared to private sector pension plans. Private sector plans must follow the Employee Retirement Income Security Act (ERISA), but FERS is exempt from ERISA. Instead, FERS follows rules outlined in Title 5 of the U.S. Code and Title 5, Part 838, of the Code of Federal Regulations.

A key difference is that under ERISA, a former spouse can receive their share of a private pension when the employee reaches minimum retirement age, even if still working. However, for FERS, the former spouse cannot receive their share until the benefit is payable to the retired federal employee.

Another key difference is the way an employee contributes to the FERS plan. The FERS plan takes into account the employee’s social security contribution.

How is the FERS Basic Benefit Divided?

In Virginia divorces involving FERS (Federal Employees’ Retirement System) benefits, there is a general rule that each spouse is entitled to half of the marital share of the FERS benefit earned by the employee during the marriage. This requires the court to determine the portion of the benefit that was earned during the marriage.

Most commonly, the court will use a formula that considers the amount of time the parties were married during the employee’s federal service period. However, the spouses can also agree to a different division method. Typically, if the parties reach an agreement, they may decide on a flat amount from the monthly benefit or a straight percentage of the monthly benefit amount. An experienced Virginia divorce attorney can help determine which division method is most suitable for your situation.

When dividing a FERS benefit in a divorce, the court order must strictly follow the federal regulations governing FERS. The Office of Personnel Management (OPM), which oversees FERS, will reject any court order that fails to comply with these regulations. To ensure proper division of the FERS benefit during divorce proceedings, the calculation and language used in the court order must be precisely worded in a manner deemed acceptable by OPM for processing. If the court order does not meet OPM’s requirements, it risks being rejected, which could derail or complicate the division of the FERS benefit. For this reason, it is wise to consult with an experienced Virginia divorce attorney.

More information regarding FERS benefits can be found on the OPM’s website: https://www.opm.gov/retirement-services/fers-information/

If you are going through a divorce in Virginia that involves dividing a FERS benefit, it is crucial to seek guidance from an experienced divorce attorney. The attorneys at Bourdon & Tortolero, serving clients throughout Virginia, are committed to vigorously advocating for your financial rights and the equitable distribution of marital assets. They take a personalized approach to every case, as each divorce situation is unique. To learn more about how their knowledgeable legal team can assist you, please contact or call 703-215-1867 today.

Contact Us Today

If you have any questions about our firm, would like more information about our services,
or are interested in working with us, please fill out the contact form below or call

VA +703.646.8390
DC +202.975.0065
Please enable JavaScript in your browser to complete this form.