[Federal Register Volume 59, Number 206 (Wednesday, October 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26492]


[[Page Unknown]]

[Federal Register: October 26, 1994]


_______________________________________________________________________

Part III





Federal Retirement Thrift Investment Board





_______________________________________________________________________



5 CFR Parts 1650 and 1653




Retirement Benefits Court Order Regulations; Proposed Rule
FEDERAL RETIREMENT THRIFT INVESTMENT BOARD

5 CFR Parts 1650 and 1653

 
Retirement Benefits Court Order Regulations

AGENCY: Federal Retirement Thrift Investment Board.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Executive Director of the Federal Retirement Thrift 
Investment Board (Board) is publishing proposed regulations governing 
retirement benefits court orders. The proposed regulations contain a 
number of procedural changes which reflect the Board's experience in 
processing retirement benefits court orders, as well as changes in 
Federal tax law. The proposed regulations will establish a new Part in 
the Code of Federal Regulations replacing existing regulations 
regarding court orders.

DATES: Comments must be received on or before December 27, 1994.

ADDRESSES: Comments may be sent to: Michelle C. Malis, Federal 
Retirement Thrift Investment Board, 1250 H Street NW., Washington, DC 
20005.

FOR FURTHER INFORMATION CONTACT:
Michelle C. Malis (202) 942-1658.

SUPPLEMENTARY INFORMATION: The Board administers the Thrift Savings 
Plan (TSP), which was established by the Federal Employees' Retirement 
System Act of 1986 (FERSA), Pub. L. 99-335. The provisions governing 
the TSP are codified primarily in subchapters III and VII of Chapter 84 
of Title 5, United States Code. The TSP is a tax-deferred retirement 
savings plan for Federal employees that is similar to cash or deferred 
arrangements established under section 401(k) of the Internal Revenue 
Code. Sums in a TSP participant's account are held in trust for that 
participant. 5 U.S.C. 8437(g).
    Under 5 U.S.C. 8467(a), payments from the TSP that would otherwise 
be made to a TSP participant shall be paid ``to another person if and 
to the extent that the terms of a court decree of divorce, annulment or 
legal separation, or the terms of any court order or court-approved 
property settlement agreement incident to any court decree of divorce, 
annulment, or legal separation expressly provide.'' A related 
provision, 5 U.S.C. 8435(d), states that an election or change of 
election of TSP benefits shall not be effective to the extent that it 
would conflict with ``a court decree of divorce, annulment or legal 
separation * * * or any court order or court-approved property 
settlement agreement incident to such decree * * *.'' The TSP need only 
honor court orders or decrees meeting the requirements of 5 U.S.C. 
8467(a) and 8435(d) if the Executive Director receives proper notice of 
the order before disbursement of the participant's account.
    These proposed regulations address only court orders and decrees 
described in 5 U.S.C. 8435(d) and 8467. Such orders and decrees are 
referred to in the proposed regulations as ``retirement benefits court 
orders.'' These are to be distinguished from ``alimony and child 
support orders,'' which are governed by 5 U.S.C. 8437(e)(3). Proposed 
regulations governing alimony and child support orders will be 
promulgated in a separate subpart of Part 1653. The current proposed 
regulations, when effective, will supersede the interim regulations 
presently found at 5 CFR 1650.27 to 1650.43.

Section by Section Analysis

    Section 1653.1 states the purpose of the proposed regulations. The 
procedures set forth in the regulations will be applied in determining 
whether the Board must honor orders purporting to constitute retirement 
benefits court orders described in 5 U.S.C. 8435(d) and 8467. The 
regulations also establish procedures for calculation and payment of 
awards pursuant to qualifying retirement benefits court orders.
    Section 1653.2(a) sets forth the general rule that only 
``qualifying'' retirement benefits court orders will be honored. If an 
order is determined not to be qualifying, it will not affect the 
participant's account. TSP participants involved in divorce 
proceedings, and their representatives, are encouraged to read the TSP 
publication, ``Information About Court Orders,'' to obtain useful 
information for drafting and submitting court orders that will be 
deemed qualifying under the regulations.
    Section 1653.2(b) sets forth the requirements for a court order to 
be ``qualifying.'' Section 1653.2(b)(1) describes the type of legal 
document that can be a qualifying order. The first sentence is designed 
to clarify that the language ``court decree of divorce, annulment, or 
legal separation,'' as used in both 5 U.S.C. 8435(d) and 8467 has been 
interpreted by the Board to mean ``a court decree of divorce, a court 
decree of annulment, or a court decree of legal separation.'' In order 
to have a qualifying court order, a court must be involved. A legal 
separation agreement that has not been approved by a court, for 
example, is not a ``court decree of legal separation,'' and therefore 
cannot constitute a qualifying court order. Also, a property settlement 
agreement must be court-approved in order to be qualifying. This means 
that the court's approval must be demonstrated on the face of the 
document or in an accompanying court order.
    The second sentence of Sec. 1653.2(b)(1) is designed to make it 
clear that a ``court order or court-approved property settlement 
agreement incident to [a decree of divorce, of annulment or of legal 
separation]'' may occur at any stage of the proceeding, not just after 
the entry of a final decree of divorce, of annulment or of legal 
separation. For example, courts often issue orders during a divorce 
proceeding in order to preserve the status quo in anticipation of a 
final decree dividing the property of the parties. The proposed 
regulations also allow for the possibility that an order serving a 
function other than preservation of the status quo could be deemed 
``incident to'' a decree that has not yet been entered.
    If the Board receives an otherwise valid order awarding a former 
spouse a portion of a TSP account, but prior to payment receives a 
valid amended order changing the earlier award, the amended order will 
be honored. However, under no circumstances will the Board accept the 
return to the TSP of funds that have been properly paid pursuant to an 
earlier order, even if a subsequent order would dictate such a result. 
The processing of multiple court orders is addressed in Sec. 1653.3(k).
    Section 1653.2(b)(2) addresses the requirement in 5 U.S.C. 
8435(d)(2)(A) that a court order must ``expressly relate'' to a 
participant's TSP account and the requirement in 5 U.S.C. 8467 that the 
court order must ``expressly provide'' for payment to someone other 
than the participant. For an order to be honored under either 
provision, the order must unambiguously address the TSP account.
    Section 1653.2(b)(2)(i) requires that an order must clearly and 
specifically deal with a participant's TSP account. It is not 
sufficient to use generic language that is arguably broad enough to 
include the TSP. For example, an order that states, ``Former Spouse is 
awarded 50% of all of Participant's Federal retirement benefits'' would 
not be language that expressly relates to the TSP, even though the TSP 
is a Federal retirement benefit. The clearest and most effective way to 
ensure that an order is honored is to actually name the Thrift Savings 
Plan; parties to divorce actions are encouraged to attempt to obtain 
such specific language in their orders. However, Sec. 1653.2(b)(2)(ii) 
makes it clear that, even if the Thrift Savings Plan is identified by 
name, the order must not contain language that is inconsistent with the 
division of a participant's interest in a defined contribution plan, 
such as the TSP, in which the participant has an individual account. 
References to ``benefit formulas,'' ``accrued benefits,'' or ``eventual 
benefits'' may or may not be acceptable in context, because such terms 
have the potential to raise questions as to whether the order is truly 
dealing specifically with the TSP account as opposed to simply 
including the TSP among other retirement benefits to which the 
participant may be entitled. Since use of such terms may lead the Board 
to reject an order as not expressly relating to the TSP account, these 
terms should be avoided in favor of references to the ``TSP account'' 
or ``TSP account balance.''
    Section 1653.2(b)(3) further implements the requirement of 5 U.S.C. 
8467 that a payment pursuant to a court order must be expressly 
provided for in the order. If the order requires a payment from the TSP 
account, it must either award a specific dollar amount or divide the 
participant's account balance by applying a fraction, a percentage, or 
a formula that yields a mathematically possible result. For example, a 
formula where the numerator is larger than the denominator and 
therefore yields an amount greater than the entire account balance is 
not acceptable. All of the variables for the formula must also be set 
forth in the order or must be available through reference to Government 
employment records. The dollar amount, percentage, fraction or 
variables used must be clearly determinable; they cannot be qualified 
by terms such as ``approximately.'' The order may or may not provide 
for interest or earnings to be added to the amount of the award, but 
any award of earnings must also be clearly determinable. The order may 
also award a survivor annuity under 5 U.S.C. 8435(e).
    Under Sec. 1653.2(b)(4), an order will only be deemed qualifying if 
it calls for payment to the spouse, former spouse, attorney for the 
spouse or former spouse, dependent children of the participant, other 
dependents of the participant, or the attorney for the participant's 
dependent children or other dependents. Payment cannot be made to the 
participant or to others, such as credit card companies, mortgage 
lenders, or other creditors of the parties to the divorce. The TSP is a 
retirement savings plan, and the occasion of a divorce should not be a 
general opportunity for the participant to obtain access to his or her 
account or for the parties to use retirement savings to liquidate their 
general debts. In this context, payment to the attorney for the 
participant is tantamount to a payment to the participant, since the 
participant owes a debt to the attorney. Thus, the proposed rules would 
not permit such a payment. In contrast, it is permissible for the court 
to award a payment from the TSP account to the attorney representing 
the spouse/former spouse or dependent children or other dependents for 
legal fees incurred in connection with the divorce, because direct 
payments to the spouse/former spouse or dependent children or other 
dependents are also permissible. The Board will not honor an order 
asking for payment to be made jointly, such as to the former spouse and 
his or her children. Rather, the order should separately specify the 
award to be made to each person.
    Section 1653.2(c) specifically states that certain orders are not 
qualifying. Section 1653.2(c)(1) provides that an order relating only 
to money that is not vested (under 5 U.S.C. 8432(g)) shall not be 
deemed a qualifying order unless the money will become vested within 90 
days of receipt of the order if the participant remains in Federal 
employment.
    Section 1653.2(c)(2) represents a significant departure from 
current rules for processing court orders. Under current rules the 
Board has been paying court orders as soon as the amount of the award 
can be calculated, even where the order calls for a payment at a later 
date. In cases where a dollar amount is awarded and the order specifies 
that payment is to be made upon a date in the future, that dollar 
amount has been paid immediately. On the other hand, where the amount 
of the award is based on a percentage of the account balance as of a 
date in the future (such as the participant's separation from Federal 
Government employment or some other specified date), or is based on a 
percentage determined by a formula containing variables that cannot be 
determined until a date in the future, the Board's current procedures 
have called for the order to be retained by the Board so that payment 
could be made at the appropriate time in the future.
    Under Sec. 1653.2(c)(2)(i) of the proposed rules, orders requiring 
payment at a future specified date will not be considered qualifying 
orders unless two requirements are met. First, it must be currently 
possible to calculate the amount of the entitlement. Second, the award 
must provide for interest or earnings to be paid on the amount of the 
award until the date of payment. If both of these requirements are met, 
the order will be considered qualifying. However, payment will be made 
not at the future date specified in the order, but rather will be made 
currently after following the procedures of Sec. 1653.5. The rationale 
for this limited exception to the general rule that orders requiring 
future payment will be rejected is that, where the amount of the award 
can currently be calculated and the order calls for interest or 
earnings, a payment of that amount currently is the economic equivalent 
of a payment of the same amount plus earnings at a future date. 
However, under the proposed regulations there will be no case in which 
the Board will hold orders until a future date specified by a court for 
payment.
    Section 1653.2(c)(2)(ii) is designed to clarify that is not 
necessary for the exact amount of the award to be determinable upon 
receipt of the order by the Board. An order may be qualifying if it 
provides for a current payment to be calculated as of the date of 
payment. The Board recognizes that the procedures set forth in the 
proposed regulations will often require a few months between the 
receipt of the order by the Board and the payment of the account. 
Orders will not be deemed non-qualifying future orders merely because 
the amount of the award cannot be calculated until a payment date that 
will invariably be later than the date of receipt of the order by the 
Board. For example, an order that incorporates a formula using a 
variable such as the number of months of the participant's Federal 
employment as of the date of payment would not be considered a non-
qualifying future order, even though the length of the participant's 
Federal service will have to be determined as of the date of payment, 
which is likely to be a few months after the Board's receipt of the 
order.
    Section 1653.2(d) defines the term ``former spouse'' as used in the 
proposed regulations, by adopting the definition contained in 5 U.S.C. 
8401(12).
    Section 1653.3 sets forth procedures for reviewing retirement 
benefits court orders. Section 1653.3(a) provides that the Board will 
process court orders in accordances with applicable Federal law, namely 
FERSA and the Board's regulations. The Board's processing of court 
orders is not controlled by the procedures of the state divorce courts.
    Section 1653.3(a) also makes it clear that the Board cannot be made 
a party to the underlying divorce action and thereby be subject to the 
jurisdiction of the court handling the divorce proceeding. The Board is 
a Federal agency which, under the doctrine of sovereign immunity, is 
not subject to suit in state court absent specific statutory 
authorization. Therefore, legal process to join the Board as a party to 
a divorce proceeding will not be honored. Parties to a divorce must, 
without the Board's participation in the proceeding, obtain from the 
court an appropriate order and then submit that order to the Board for 
a determination as to whether it is a qualifying order. To the extent 
there is any dispute about the Board's actions concerning a court 
order, the matter must be resolved in Federal court under 5 U.S.C. 
8477, not in state court.
    Section 1653.3(b) provides the address for the TSP recordkeeper to 
which court orders should be sent for processing. Receipt by the 
recordkeeper is deemed receipt by the Board.
    Section 1653.3(c) provides the general rule that the Board will 
``freeze'' the account of a TSP participant for whom a document has 
been received that purports to be a qualifying retirement benefits 
court order. When an account is frozen, the participant may not 
withdraw the account or obtain a loan from the account. The freeze is 
intended to ensure that the participant may not defeat the purposes of 
a court order by removing the funds from the account while the Board is 
conducting its review of what may turn out to be a valid order. Both 5 
U.S.C. 8435(d) and 8467 indicate that the Executive Director may not 
make payments to the participant after receiving a qualifying court 
order until the court order has been complied with.
    Section 1653.3(d) lists certain types of documents that the Board 
views as not even purporting to constitute qualifying retirement 
benefits court orders. Therefore, these documents will be rejected 
without substantive review and no freeze will be placed on the account. 
Section 1653.3(d)(1) provides that an order will be rejected if it 
fails to indicate on its face that it has been issued or approved by a 
court, unless an accompanying document plainly establishes that the 
order was approved or issued by a court. An unsigned order will be 
rejected under this provision.
    Section 1653.3(d)(2) provides that an order will be rejected where 
the account has been closed, which may have occurred either because the 
participant withdrew his or her account or because the entire account 
was paid pursuant to an earlier court order. Similarly, because FERSA 
was enacted on June 6, 1986, court orders entered before that date 
cannot ``expressly relate'' to a TSP account, since the court could not 
have contemplated the existence of a TSP account. Accordingly, under 
Sec. 1653.3(d)(3), such orders will be rejected without review. Court 
orders awarding funds in the TSP account only to the participant 
(Sec. 1653.3(d)(4)) and court orders failing to make any mention of any 
retirement benefits (Sec. 1653.3(d)(5)) will also be rejected without 
substantive review and without freezing the account.
    Sections 1653.3(e) and (f) require a court order to be either an 
original or copy of a complete court order.
    If a court order is not complete, the parties will be given 30 days 
to submit a complete document. If it is not received within 30 days, 
the account will be unfrozen and the order will not be reviewed 
further. However, if the incomplete order does not include a signature 
or other indication that it was properly issued or approved by a court, 
then it will be rejected under Sec. 1653.3(d)(1) without a 30-day 
period for resubmission.
    Sections 1653.3 (g) and (h) require the Board to determine whether 
court orders accepted for review under this subpart constitute 
qualifying orders and to provide an explanation of the decision. If the 
order is found to be qualifying, the decision will state the effect of 
the order on the TSP account of the participant. In many cases, the 
effect of a final divorce decree will be a payment from the 
participant's account to the spouse of former spouse. In the case of a 
preliminary order, the effect is often maintenance of a freeze on the 
account until a further court order is received by the Board.
    Under current Board procedures, the Board's decisions provide a 30-
day appeal period for the parties to request an administrative review 
of the decision by the Executive Director. Section 1653.3(i) of the 
proposed regulations eliminates that appeal period and makes the 
Board's initial decision the final administrative action. In the 
Board's experience, the appeal period has been used primarily as a time 
for seeking from the divorce court a new order to supersede the earlier 
order, rather than to raise substantive issues relating to the Board's 
decision.
    The Board believes that it is appropriate for the divorce court, 
rather than the Board, to clarify any question concerning the meaning 
of the order. Elimination of the appeal period will not, however, 
eliminate any opportunity for the parties to return to the divorce 
court for an amended order, since Sec. 1653.5(a) provides that even 
after a determination that an order awards a portion of a TSP account, 
payment cannot be made until at least 30 days after appropriate tax 
notification has been provided. Similarly, if the Board determines that 
an order is not qualifying, Sec. 1653.3(j)(4) provides that the account 
will remain frozen for 45 days from the date of the Board's 
determination. Thus, the spouse or former spouse is protected against 
disbursement of a loan or withdrawal to the participant during the 45-
day period, and may seek a new order from the divorce court during that 
time.
    Section 1653.3(j) describes when a freeze imposed under 
Sec. 1653.3(c) will be removed. Section 1653.3(j)(1) reiterates the 
provision in paragraph (f) that if the Board receives an incomplete 
order the parties will be notified that a complete document must be 
received within 30 days. If it is not received within that time, the 
freeze will be removed.
    Section 1653.3(j)(2) provides that, where a qualifying order 
precludes disbursements from the participant's account, the freeze will 
remain on the account until the order is either superseded or vacated 
by a subsequent order of the court. Of course, if the subsequent order 
itself requires freezing the account, then the account will not be 
unfrozen. A common situation involves a preliminary order entered to 
preserve the status quo by precluding the participant from obtaining a 
loan or withdrawal from his or her account while the divorce 
proceedings are pending. The court then enters a final divorce decree, 
which dissolves the preliminary order but also includes an award of a 
portion of the TSP account to the former spouse. Because the final 
divorce decree will itself require that the account be frozen, the 
freeze will remain on the account until payment of the former spouse's 
share.
    Section 1653.(j)(3) provides that, where it is determined that an 
order makes an award of a portion of a TSP account, the freeze will be 
removed upon payment.
    As discussed in connection with the elimination of the appeal 
period Sec. 1653.3(j)(4) provides that, where the Board determines that 
an order is not qualifying, the account will remain frozen for 45 days 
after that determination. This enables the parties to seek and submit 
to the Board a new, qualifying order from the divorce court, without 
concern that the participant may withdraw or borrow from his or her 
account during the 45-day period. Alternatively, a party may seek to 
challenge the Board's determination in Federal court. The freeze may be 
removed sooner than the expiration of the 45-day period only upon 
written agreement from both parties to the divorce proceedings.
    Section 1653.3(k) provides the rules for processing multiple court 
orders. Section 1653.3(k)(1) provides that, where there are conflicting 
orders arising from the same divorce proceeding and involving the same 
spouse of former spouse, the order bearing the latest date will 
supersede any earlier orders, regardless of the dates on which they are 
received by the Board. The date will be determined by using the date 
the order was entered by the clerk of the court or the date the order 
was filed by the clerk of the court, if the order does not show a date 
entered. If the order does not indicate a date entered or filed, the 
date the order was signed by the judge will be used. Since 5 U.S.C. 
8467(a) provides that ``[a]ny payment under this subsection to a person 
bars recovery by any other person,'' the general rule set forth in 
Sec. 1643.3(k)(1) obviously cannot be applied if payment on the first 
order received has already been made before the Board receives a later 
order that would have superseded the first order. Moreover, consistent 
with the last sentence of Sec. 1653.2(b)(1), no court order will be 
honored to the extent that doing so would require the Board to accept 
the return of money already properly paid pursuant to another order.
    Section 1653.3(k)(2) provides that where there are conflicting 
orders involving different spouses of former spouses, the order with 
the earliest date (determined in the same manner as under 
Sec. 1653.3(k)(1)) will be given priority (again, unless payment on the 
first order received has already been made). Any payments from the 
account will be made first based on the order bearing the earliest 
date, and proceeding through and additional orders until the account is 
exhausted. It is presumed that the earliest order established rights 
for the spouse or former spouse named in that order which cannot be 
affected by subsequent orders in different cases in which the first 
spouse is not a party.
    Section 1653.4 sets forth rules for calculation of the amount of an 
entitlement. TSP accounts are valued once a month as of the last day of 
the month. Under Sec. 1653.4(a), if the date or event specified in the 
order for calculating the award falls on any day except the last day of 
the month, the account balance on which the amount of the entitlement 
is based is determined as of the last day of the previous month. Unless 
otherwise provided by the court order, any outstanding loan balance as 
of the end of the month used for calculating the entitlement will be 
included in the account balance for this calculation. If the date or 
event specified in the order falls on the last day of a month, the 
account balance is determined as of that day.
    The actual month-end account balance used to calculate the 
entitlement must be adjusted by transactions which are processed before 
the payment is processed but which relate to the period on or before 
the month-end used for the calculation. For example, assume that in 
March 1995 the Board receives a qualifying court order awarding the 
former spouse one-half of the participant's account balance as of the 
end of February 1995. In May 1995, the Board processes an adjustment 
record received from the participant's employing agency which removes 
from the account $100 that was determined by the agency to be an excess 
contribution erroneously made by the agency in January 1995. If payment 
pursuant to the court order is made in July 1995, the amount paid would 
be computed based on the February 1995 month-end account balance, minus 
the $100 which was removed from the account in May 1995 but which 
related to the period prior to the February month-end computation date. 
On the other hand, if the adjustment record was for an erroneous 
contribution made in April 1995, then the February balance would be 
used in the calculation of the former spouse's award without reduction 
for the $100 adjustment.
    Section 1653.4(b) provides that, where the award does not cite a 
specific date or event, the entitlement will be calculated based on the 
month-end balance on or immediately preceding the date the order was 
entered by the clerk of the court or the date the order was filed by 
the clerk of the court, if the order does not show a date entered. If 
the order does not indicate a date entered or filed, the date the order 
was signed by the judge will be used. Once the appropriate date is 
established, the rules of paragraph (a) are applied as if that date had 
been specified in the order.
    Section 1653.4(c) provides that, if the court awards a specific 
dollar amount, but indicates that the amount awarded must be paid out 
of the balance that is in the account on a certain date, the award will 
be for the lesser of the amount awarded or the appropriate month-end 
account balance, determined and adjusted under the same rules as in 
paragraph (a). This approach is based on the notion that the court has 
no power to award a sum that is greater than the amount in the account 
on the particular date cited in the order. Also similar to the rules 
set forth in paragraph (a), if no date is specified in the court order, 
the award will be assumed to be based on the date the order was 
entered, filed or signed as appropriate.
    Under Sec. 1653.4(d), unless the court order specifies otherwise, 
no earnings will be credited to the amount awarded. If the court 
specifies that interest or earnings are to be credited, but does not 
specify a rate or method of calculation, the Board will use the actual 
rate of return on the participant's account for the time period 
involved based on the funds in which the account is invested. The 
participant's account may be invested in one or more of the following 
funds: the Government Securities Investment (G) Fund, the Common Stock 
Index Investment (C) Fund, the Fixed Income Index Investment (F) Fund. 
Because the earnings may be based in whole or in part on the earnings 
of the Common Stock Index Investment (C) Fund or the Fixed Income Index 
Investment (F) Fund, and those funds may suffer losses for any given 
period of time, the earnings credited to the award could be either 
positive or negative. The earnings calculation will begin with the 
month after the month-end balance used in calculating the principal 
amount of the award, and will end with the month preceding payment. If 
the court specifies a different method for calculating interest to be 
credited to the award, that method will be used.
    Section 1653.4(e) makes it clear that under no circumstances may a 
participant's Agency Automatic (1%) Contributions be paid pursuant to a 
court order it those funds are not vested under 5 U.S.C. 8432(g) at the 
time of payment. While the entitlement may initially be calculated to 
include such nonvested sums for purposes of advising the parties of the 
amount awarded, the amount will be recalculated excluding those sums if 
they have not become vested by the date of payment.
    Section 1653.5 sets forth the procedures for making payments 
pursuant to qualifying retirement benefits court orders. Under 
Sec. 1653.5(a), if a qualifying order is found to require payment, an 
appropriate tax notification will be provided to the payee after 
issuance of the Board's decision. Payment will not be made less than 30 
days after issuance of the tax notification because, under the Internal 
Revenue Code, the payee will often have the right to elect a transfer 
to an Individual Retirement Arrangement (IRA) or other eligible 
retirement plan, or to make a tax withholding election. As discussed 
with respect to the elimination of the period for appeal of the Board's 
decision, this minimum waiting period of 30 days also provides the 
participant an opportunity to seek an amended order from the state 
divorce court or to challenge the Board's determination in Federal 
court under 5 U.S.C. 8477.
    Section 1653.5(b) states that payment must be made directly to the 
individual(s) specified in the court order. However, as required by the 
Internal Revenue Code, this paragraph also provides for a spouse or 
former spouse to elect to have all or a part of the payment transferred 
directly to an IRA or other eligible retirement plan.
    Section 1653.5(c) provides that no payment may be made from an 
account that exceeds the vested account balance at the time of payment, 
excluding any outstanding loan at the time of payment. Although 
outstanding loan balances are included for purposes of computing the 
amount of an award as of the appropriate computation date as determined 
in accordance with Sec. 1653.4, payment cannot include any amount that 
is outstanding as a loan, because the money is not in the account and 
thus is not available to be paid. Payment of more than the vested 
account balance excluding the outstanding loan balance would require a 
payment from the Plan that would have to be absorbed by the rest of the 
TSP participants.
    Section 1653.5(d) provides that orders requiring a series of 
payments will not be deemed qualifying orders. If an order requires a 
payment greater than the account balance as of the date of the payment, 
the full amount of the account will be paid pursuant to the order. If 
the account subsequently receives additional money, that money will not 
be paid pursuant to the court order. A new court order would be 
required for payment of the additional sums. In essence, a payment 
pursuant to a court order extinguishes all entitlements under that 
court order; further payment can only be made pursuant to a subsequent 
order.
    Section 1653.5(e) provides that joint payments are not permitted. 
If more than one person is awarded a portion of the account, the amount 
awarded to each must be specified in the order. Although the checks 
will be made payable only to the payee(s) named in the order, the Board 
will permit each payee to specify the address to which the check should 
be sent, even if that address is different from an address listed in 
the court order. However, only the payee may designate an address to 
which the check should be sent, and such designation must be done in 
writing. The Board will not honor a change of address submitted, for 
example, by the payee's attorney. A strict rule against accepting 
address changes from anyone other than the payee is necessary to 
protect against forbidden alienations of the benefits to which the 
payee, as a beneficiary of the TSP, has become entitled. Unless the 
address is changed by the payee, the check will be sent to an address 
provided in the court order. If an order provides an address that is 
``in care of'' another individual, the check will be issued to the 
payee but sent to the ``in care of'' address.
    Section 1653.5(f) provides that prior to payment the TSP 
recordkeeper must have the payee's full name, mailing address, and 
Social Security number. This information may be provided in the court 
order or separately by the parties or their representatives. However, 
as discussed in connection with paragraph (e), only the payee may 
change the mailing address for the check to an address other than his 
or her own address. The payee's representative may not do so.
    Section 1653.5(g) provides that payment will be made to the payee's 
estate if the payee dies before payment is made pursuant to a court 
order. It is not necessary that the court order be submitted to the 
Board prior to the death of the payee, as long as the order was issued 
prior to the payee's death and in all other respects constitutes a 
qualifying order. The court may, in the order, provide for an 
individual or entity other than the payee's estate to receive payment 
in the event of the payee's death.
    If the participant dies prior to payment of the account, a court 
order entered prior to the participant's death will be honored. It does 
not matter that the order may not have been received by the Board prior 
to the participant's death. However, if the order is not received by 
the Board prior to otherwise proper payment of the account to someone 
other than the payee(s) specified in the court order, then the court 
order will not be honored. The Board will neither seek nor accept a 
return of funds properly paid prior to receipt of a court order.
    Section 1653.5(h) provides that remarriage or termination of a 
legal separation does not nullify a court order that has already been 
submitted to the Board. The Board does not believe it can be presumed 
that in all cases in which a domestic relations court divides property, 
including a TSP account, the division should be rendered void merely 
because the parties choose to remarry. If that is the court's intent, 
then the parties must obtain an order to that effect and submit it to 
the Board before payment is made pursuant to the original court order.
    Section 1653.5(i) reflects the last sentence of 5 U.S.C. 8467(a), 
which provides that, ``Any payment under this subsection to a person 
bars recovery by any other person.'' Once payment pursuant to a court 
order has been properly made, the Board will not accept return of the 
money disbursed. Nor will an additional payment be made to another 
payee.
    Section 1653.5(j) provides that payments will be made from the TSP 
investment funds on a pro rata basis. For example, if a participant's 
$10,000 account balance is invested 50% ($5,000) in the G Fund, 30% 
($3,000) in the C Fund and 20% ($2,000) in the F Fund, then an award of 
$1,000 would be paid $500 from the G Fund, $300 from the C Fund, and 
$200 from the F Fund. The Board will not honor any provision in a court 
order that requires the payment to be made other than pro rata from the 
TSP investment funds.

Regulatory Flexibility Act

    I certify that these regulations will not have a significant 
economic impact on a substantial number of small entities. They will 
affect only internal Board procedures relating to the processing of and 
payment pursuant to retirement benefits court orders.

Paperwork Reduction Act

    I certify that these regulations do not require additional 
reporting under the criteria of the Paperwork Reduction Act of 1980.

List of Subjects

5 CFR Part 1650

    Employment benefit plans, Government employees, Retirement, 
Pensions.

5 CFR Part 1653

    Employment benefit plans, Government employees, Retirement, 
Pensions.

Federal Retirement Thrift Investment Board.
Roger W. Mehle,
Executive Director.

    For the reasons set out in the preamble, 5 CFR Chapter VI is 
proposed to be amended as follows:

PART 1650--METHODS OF WITHDRAWING FUNDS FROM THRIFT SAVINGS PLAN

    1. The authority citation for Part 1650 continues to read as 
follows:

    Authority: 5 U.S.C. 8351, 8433, 8434(a)(2)(E), 8434(b), 8435, 
8436, 8467, 8474(b)(5), 8474(c)(1), and sec. 4437, Pub. L. 102-484, 
106 Stat. 2724.

    2. Subpart I of Part 1650, consisting of Secs. 1650.27 through 
1650.43, is removed and reserved.
    3. A new Part 1653 is added to read as follows:

PART 1653--DOMESTIC RELATIONS ORDERS AFFECTING THRIFT SAVINGS PLAN 
ACCOUNTS

Subpart A--Retirement Benefits Court Orders

Sec.
1653.1  Purpose.
1653.2  Qualifying retirement benefits court orders.
1653.3  Processing retirement benefits court orders.
1653.4  Calculating entitlement under a retirement benefits court 
order.
1653.5  Procedures for payment pursuant to retirement benefits court 
orders.

Subpart B--[Reserved]

    Authority: 5 U.S.C. 8435, 8436(b), 8467, 8474(b)(5) and 
8474(c)(1).

Subpart A--Retirement Benefits Court Orders


Sec. 1653.1  Purpose.

    This subpart contains regulations prescribing the Board's 
procedures for processing retirement benefits court orders.


Sec. 1653.2  Qualifying retirement benefits court orders.

    (a) The TSP will only honor the terms of a retirement benefits 
court order that is qualifying under paragraph (b) of this section.
    (b) A retirement benefits court order must meet each of the 
following requirements to be considered qualifying:
    (1) The court order must be a court decree of divorce, of 
annulment, or of legal separation, or any court order or court-approved 
property settlement agreement incident to a decree of divorce, of 
annulment, or of legal separation. Orders may be issued at any stage of 
a divorce, annulment, or legal separation proceeding. Orders issued 
prior to a final decree, such as orders for the purpose of preserving 
the status quo pending the final resolution of the proceeding, are 
referred to as ``preliminary'' court orders, and will be considered 
``incident to'' a final decree, notwithstanding that a final decree has 
not yet been, and may not be, issued. Orders issued subsequent to a 
final decree, such as orders for the purpose of amending such decree, 
are referred to as ``subsequent'' court orders, and will also be 
considered ``incident to'' such decree. However, any subsequent order 
that requires the return of money properly paid pursuant to an earlier 
court order will not constitute a qualifying order.
    (2) The court order must ``expressly relate'' to the Thrift Savings 
Plan account of a current TSP participant. This means that:
    (i) The order must on its face specifically describe the TSP in 
such a way that it cannot be confused with other Federal Government 
retirement benefits or non-Federal retirement benefits; and
    (ii) The order must be written in terms appropriate to a defined 
contribution plan rather than a defined benefit plan. For example, it 
should generally refer to the individual participant's ``account'' or 
``account balance'' rather than a ``benefit formula'' or the 
participant's ``eventual benefits.''
    (3) If the court order awards an amount to be paid from the 
participant's TSP account, the award must be for:
    (i) A specific dollar amount;
    (ii) A stated percentage or stated fraction of the account;
    (iii) A portion of the account to be calculated by applying a 
formula that yields a mathematically possible result. Any variables in 
the formula must have values that are readily ascertainable from the 
face of the order or from Government employment records; or
    (iv) A survivor annuity as provided in 5 U.S.C. 8435(e).
    (4) Court orders that make awards from the TSP may only provide for 
payments to:
    (i) Spouses or former spouses of the participant;
    (ii) Attorneys for spouses or former spouses of the participant;
    (iii) Dependent children or other dependents of the participant;
    (iv) Attorneys for dependent children or other dependents of the 
participant.
    (c) The following retirement benefits court orders will be 
considered non-qualifying:
    (1) Orders relating to a TSP account that contains only nonvested 
money, unless the money will become vested within 90 days of the date 
of receipt of the order if the participant remains in Federal service;
    (2)(i) Orders that award an amount to be paid at a future specified 
date or upon the occurrence of a future specified event, unless:
    (A) The amount of the entitlement can be currently calculated; and
    (B) The award provides for the payment of interest or earnings from 
the date of calculation to the specified date or event for payment.
    (ii) If an order meets the requirements of paragraphs (c)(2)(i) (A) 
and (B) of this section, a current payment will be made in accordance 
with the procedures set forth in Sec. 1653.5, rather than a payment at 
the future date stated in the order.
    (d) For purposes of paragraph (c)(2) of this section, orders that 
require only that the amount of the award be calculated on the date of 
payment, without stating a future date or event for payment, will not 
be considered as awarding an amount to be paid at a future date or upon 
the occurrence of a future event. In such cases, the date of payment 
will be determined in accordance with the procedures set forth in 
Sec. 1653.5, and the amount of the entitlement will be determined in 
accordance with Sec. 1653.4 using that date of payment.
    (e) Definition. For purposes of this part, the term former spouse 
shall have the same meaning as set forth in 5 U.S.C. 8401(12).


Sec. 1653.3  Processing retirement benefits court orders.

    (a) The Board's review of retirement benefits court orders is 
governed solely by the Federal Employees' Retirement System Act 
(FERSA), 5 U.S.C. Chapter 84, and by the terms of this part. The Board 
will honor retirement benefits court orders properly issued by a court 
of any state, the District of Columbia, the Commonwealth of Puerto 
Rico, Guam, the Northern Mariana Islands, or the Virgin Islands, and 
any Indian court. However, those courts have no jurisdiction over the 
Board and the Board cannot be made a party to the underlying domestic 
relations proceedings.
    (b) Retirement benefits court orders should be submitted to the 
Board's recordkeeper at the following address: Thrift Savings Plan 
Service Office, National Finance Center, P.O. Box 61500, New Orleans, 
Louisiana 70161-1500. Receipt by the recordkeeper will be considered 
receipt by the Board.
    (c) Upon receipt of a document that purports to be a qualifying 
retirement benefits court order, including preliminary and subsequent 
court orders, the participant's account will be frozen. After an 
account is frozen, no withdrawals or loans will be allowed until the 
account is unfrozen. All other account activity, including 
contributions, adjustments, and interfund transfers, will be permitted. 
The parties will be notified that the participant's account has been 
frozen.
    (d) The following documents will not be treated as purporting to be 
qualifying retirement benefits court orders. Therefore accounts of 
participants to whom such orders relate will not be frozen and these 
documents will not be reviewed by the Board:
    (1) A document that does not indicate on its face (or accompany a 
document that establishes) that it has been issued or approved by a 
court;
    (2) A court order relating to a TSP account that has been closed;
    (3) A court order dated prior to June 6, 1986;
    (4) A court order that fails to award all or any part of the TSP 
account to anyone other than the participant;
    (5) A court order that does not mention retirement benefits.
    (e) After the participant's account is frozen, the document will be 
reviewed initially to determine if it is a complete original or copy of 
a retirement benefits court order.
    (f) It it is determined that the document is not complete, a 
complete document will be requested. If it is not received within 30 
days of the date of such request, the account will be unfrozen and no 
further action will be taken with respect to the document.
    (g) Upon receipt of a complete order that is either an original or 
a copy of a retirement benefits court order, the Board will review the 
order and will determine whether it is a qualifying order as described 
in Sec. 1653.2 and, if it awards an amount to be paid from a 
participant's TSP account, the amount of the entitlement. The Board 
will advise all parties in writing of its decision.
    (h) The Board's decision will contain the following information:
    (1) The Board's determination regarding whether the court order is 
qualifying;
    (2) A statement of the applicable statute or regulations;
    (3) If the order is determined to be qualifying, a statement 
regarding the effect that compliance with the court order will have on 
the participant's TSP account;
    (4) If the order requires payment, a description of the method by 
which the entitlement under the court order was calculated and the 
circumstances under which payment will be made.
    (i) The Board's decision will be final. There is no administrative 
appeal from the decision.
    (j) An account frozen under this section will be unfrozen as 
follows:
    (1) If a complete document has not been received within 30 days 
from the date of a request described in paragraph (f) of this section, 
upon expiration of the 30-day period.
    (2) If the order is a preliminary order or other order precluding 
payment from the account, as soon as practicable after receipt of a 
certified copy or original court order vacating or superseding such 
order (unless the order vacating or superseding the preliminary order 
itself warrants placing a freeze on the account).
    (3) If the order is valid to award a payment from the TSP account 
of a participant under this part, upon payment.
    (4) If the Board determines that the order is not a qualifying 
order under this part, 45 days after issuance of the Board's decision. 
The 45-day period will be terminated if both parties submit a written 
request for such a termination to the Board.
    (k) Multiple court orders pending before the Board will be 
processed in accordance with the procedures set forth in this part in 
the following order:
    (1) As between conflicting qualifying court orders relating to the 
same spouse or former spouse, the Board will process only the court 
order bearing the latest date entered by the clerk of the court. If any 
order does not have a date entered, then the date the order was filed 
by the clerk shall be used; if there is no date entered or date filed, 
then the date the order was signed by the judge shall be used.
    (2) As between conflicting qualifying court orders relating to two 
or more former spouses, the Board will process the orders in the order 
of the dates entered by the clerk of the court, starting with the order 
bearing the earliest date, and continuing until the account is 
exhausted. If any order does not have a date entered, then the date the 
order was filed by the clerk shall be used; if there is no date entered 
or date filed, then the date the order was signed by the judge shall be 
used.


Sec. 1653.4  Calculating entitlement under a retirement benefits court 
order.

    (a) If the court order awards a percentage or fraction of the 
account as of a specific date or event, the amount of the entitlement 
will be calculated based upon the balance of the account as of the end 
of the month on or immediately preceding the date or event, plus any 
transactions posted after the date or event, but before payment, that 
are effective on or before the month-end date used for calculating the 
entitlement. For purposes of computing the amount of an entitlement, 
any loan amount outstanding as of the month-end date used for 
calculating the entitlement shall be treated as included in the account 
balance, unless the court order provides otherwise.
    (b) If the court order awards a percentage or fraction of an 
account but does not contain a specific date as of which to apply the 
percentage or fraction to the account, the amount of the entitlement 
will be calculated as described in paragraph (a) of this section, using 
the account balance as of the end of the month on or immediately prior 
to the date the order was entered by the clerk of the court or, if the 
order does not show a date entered, the date the order was filed by the 
clerk of the court or, if the order does not contain a date entered or 
a date filed, the date signed by the judge.
    (c) If the court order awards a specific dollar amount, the amount 
of the entitlement will be the lesser of:
    (1) The amount of order awards; or
    (2) The amount in the account as of the end of the month on or 
before the date specified in the order (or, if no date is specified, 
the date the order was entered by the clerk of the court or, if the 
order does not show a date entered, the date the order was filed by the 
clerk of the court, or, if the order does not contain a date entered or 
a date filed, the date signed by the judge) plus any transactions 
posted after the date or event, but before payment, that are effective 
on or before the month-end date used for calculating the entitlement. 
For purposes of computing the amount of entitlement, any loan amount 
outstanding as of the month-end date used for calculating the 
entitlement shall be treated as included in the account balance, unless 
the court order provides otherwise.
    (d) Unless the court order specifically provides otherwise, the 
entitlement calculated under this section will not be credited with 
interest or earnings. If interest or earnings are awarded, the Board 
will use the monthly rates of return credited to the account unless the 
court order specifies a different rate. The TSP monthly rates of return 
may be either positive or negative. Interest or earnings will be 
calculated beginning with the month following the month-end valuation 
date used for calculating the entitlement and ending with the month 
prior to the month of payment.
    (e) All entitlements will be calculated initially under this 
section including both vested and nonvested amounts in the 
participant's account. If at the time of payment the non-vested portion 
of the account has not become vested or has been forfeited, the 
entitlement will be recalculated using only the participant's vested 
account balance.


Sec. 1653.5  Procedures for payment pursuant to retirement benefits 
court orders.

    (a) If a qualifying court order creates an entitlement to a portion 
of a TSP account under this part, payment will be made no sooner than 
30 days after the Board's decision has been issued and the appropriate 
tax withholding notification has been provided.
    (b) A payment made pursuant to a qualifying court order will be 
made only to the person(s) specified in the court order. If payment is 
to be made to the spouse or former spouse of the participant, he or she 
may request that the TSP transfer all or a portion of his or her 
payment to an Individual Retirement Arrangement (IRA) or other eligible 
retirement plan. Such a request must be made by filing a Spouse 
Election to Transfer to IRA or Other Eligible Retirement Plan, and must 
be received prior to payment.
    (c) In no case may a payment made pursuant to a qualifying court 
order exceed the participant's vested account balance, excluding any 
outstanding loan amount as of the end of the month preceding the date 
of payment. If the entitlement calculated pursuant to this subpart 
exceeds the participant's vested account balance (excluding any 
outstanding loan amount), then only the vested amount in the account 
(excluding the outstanding loan balance) will be paid.
    (d) The entire amount of an entitlement created by a qualifying 
court order must be disbursed at one time. A series of payments will 
not be made even if the court order provides for such a method of 
payment. A payment pursuant to a court order extinguishes all further 
rights to any payment under that order even if the entire amount of the 
entitlement could not be paid. Any further award must be contained in a 
separate court order.
    (e) Payment cannot be made jointly to more than one person. If 
payment is to be made more than one individual, the order must 
separately indicate the amount to be paid to each.
    (f) In order to make a payment pursuant to a retirement benefits 
court order, the Board's recordkeeper must be provided with the full 
name, mailing address, and Social Security number of the payee, even if 
the payment is being mailed to another address.
    (g) If the payee dies before a payment is made pursuant to a 
qualifying retirement benefits court order, payment will be made to the 
estate of the payee, unless otherwise specified by the court order. If 
the participant dies before payment is made pursuant to a qualifying 
retirement benefits order entered prior to the participant's death, the 
order will be honored as long as it is submitted to the Board before 
payment of the account, regardless of whether the order was received by 
the Board prior to the participant's death.
    (h) If the parties to a divorce or annulment are remarried, or a 
legal separation is terminated, a new court order will be required to 
prevent payment pursuant to a previously submitted qualifying 
retirement benefits court order.
    (i) Payment to a person (including the estate of the payee) 
pursuant to a qualifying retirement benefits court order, made in 
accordance with this subpart, bars recovery by any other person 
pursuant to that order.
    (j) Payments pursuant to qualifying court orders will be paid pro 
rata from the TSP investment funds, based on the balance in each fund 
on the date as of which the payment is made. The Board will not honor 
provisions of court orders that require payment to be made from 
specific investment funds.

Subpart B--[Reserved]

[FR Doc. 94-26492 Filed 10-25-94; 8:45 am]
BILLING CODE 6760-01-M