Appellate Victory Preserves Client’s Financial Well-Being

By | Published On: August 11, 2016

A recent success of the Feldesman Tucker appellate team dealt with two important issues in the Family Law arena:  (1) that pensions or retirement benefits divided at the time of a divorce are valuable assets which call for significant legal expertise if the non-employee spouse is to receive the appropriate share, and (2) that the parts of a divorce settlement are inter-related and must be carefully negotiated and drafted if the client is to receive the deal that he or she bargained for.

The facts of the case were as follows.  Without being represented by lawyers, Mr. and Ms. Oshinaike executed two agreements concerning how their property would be distributed in the event of divorce. The first agreement, executed in 2011, stated, among other things, that “Solomon Oshinaike waives all rights to Marcia Oshinaike’s pension and survivor benefits.” The second agreement, executed in 2013, stated that Mr. Oshinaike “waive[d] all rights to Marcia Oshinaike’s pension, federal health benefits, annuity, and survivor benefits.” In both agreements, Ms. Oshinaike waived her corresponding marital rights in Mr. Oshinaike’s retirement benefits.

But the federal Foreign Service Act gives a former spouse a statutory interest in a Foreign Service member’s retirement benefits, “[u]nless otherwise expressly provided by any spousal agreement or court order.” 22 U.S.C. § 4054(a)(1).  Because she was a Foreign Service Officer, Ms. Oshinaike’s retirement benefits were governed by this statute.

At the time of the parties’ divorce, Mr. Oshinaike argued that the two agreements did not constitute valid waivers of his rights to a share of Ms. Oshinaike’s benefits under the Foreign Service Act because they did not specifically refer to the Act or a “Foreign Service” pension.  The trial court in the District of Columbia agreed with him. Based on the length of the parties’ marriage, the trial court’s decision would have decreased Ms. Oshinaike’s share in her benefits from her bargained-for 100% to a mere 45% of her pension, derailing her expectations as to the funds she would have for her support during her impending retirement.

Ms. Oshinaike took an appeal.  The Feldesman Tucker appellate team argued on her behalf that the trial court had incorrectly interpreted the Foreign Service Act and that the parties’ agreements satisfied the Act’s waiver requirement. The District of Columbia Court of Appeals agreed with Ms. Oshinaike. It ruled that Mr. Oshinaike’s unambiguous waiver of any interest in all of Ms. Oshinaike’s pension, annuity and survivor benefits satisfied the Foreign Service Act, and therefore reversed the judgment of the trial court. As a result of Feldesman Tucker’s advocacy, Ms. Oshinaike will now receive 100% of her retirement benefits and will be able to enjoy a comfortable standard of living after she retires.

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