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NOVA Legal Beat: Dividing Federal Retirement Benefits in a Divorce

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC.

Q. I am in the process of getting divorced and my husband worked for the federal government during the entire course of our marriage. I know he has some retirement. Can you explain what I should look out for?

A. Unless your husband has worked with the federal government for a very long time (i.e. since the 1980s), the retirement benefits in question are the Federal Employment Retirement System (FERS) and the Thrift Savings Plan (TSP). Federal employees also receive Social Security in their retirement, but those benefits are not commonly divided in divorce actions. Generally, the starting point for division is 50 percent of what was earned during the marriage for these types of retirement accounts.

The FERS functions as an annuity based on a percentage of the average of your highest three years of pay. The exact percentage is dependent on the number of years your husband worked for the federal government. Additionally, having an interest in the FERS annuity will allow you to qualify for continued health care coverage under certain circumstances.

The TSP works a lot like a private-sector 401(k) and includes matching funds from the government. Normally these accounts are divided on a percentage based on calculations relating to the account value as of the date of marriage and date of separation. Once transferred, you can transfer these funds in a retirement account or withdraw them (and potentially pay a penalty).

In order to divide either, you will need to have a court order and there is specific language that must be included. Also, some agencies have different set-ups for retirement, so you will want to sit down with an attorney at the onset and discuss the facts of your situation in detail.

Q. I want to get more visitation with my son, even though I was never married to his mother. We all lived in Arlington when he was born, but they moved to South Carolina about six months ago. I don’t want to have to deal with going to court in South Carolina. Can I file here?

A. Whether you can file here in Arlington is going to be very dependent on the facts of your case. The Uniform Child Custody Jurisdiction and Enforcement Act (known as the UCCJEA) governs a number of issues surrounding custody actions, including which court is the proper court to hear a custody matter. It is becoming an increasing fact of life that parents of children reside in different states, so keeping everything straight has become of the utmost importance.

The first major determining factor is whether you’ve been to court before on visitation. If so, and that court order was in Virginia, the Virginia court will be the proper one to file as long as at least one parent lives there.

If there is no prior order then you are dealing with an initial custody action and the rules are a little different. What matters is the home state of the child, which is where the child lives now or lived in the six months prior if a parent still resides in the state.

If the child left Virginia less than six months prior, custody can be filed in either Virginia or South Carolina. In that case, the normal determining factor is in what state the action was commenced first unless one is found to be more convenient than the other. If it was over six months ago then you will have to file in South Carolina. The rules can be a bit complex so if you have any specific factual questions, you will want to speak with a lawyer.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice criminal defense, matrimonial and family law, federal employment law, and military law. To speak with an attorney, call 703-525-4700 or to learn more visit 1888law4life.com.

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