The Court of Appeals in Oshinaike v. Oshinaike, addressed spousal claim on a retirement account where there existed already a post martial agreement on that very subject.
Specifically, on appeal Marcia Oshinaike sought review of the trial court’s ruling that her former husband (Solomon Oshinaike), did not expressly waive his rights with respect to her foreign service retirement benefits and thus was entitled to portions of that retirement benefit.
Oshinaikes were married in 1989. After Ms. Oshinaike joined the State Department as a Foreign Service officer parties executed a post marital agreement expressly stating that: Mr. Oshinaike waives all rights to Mrs. Oshinaike’s pension, federal health benefits, annuity, and survivor benefits.
The trial court ruled as a matter of law that the agreement does not validly waive Mr. Oshinaike’s rights with respect to Ms. Oshinaike’s Foreign Service pension.
The trial court explained that, under 22 U.S.C. § 4054(a) (2006), an agreement to waive spousal rights to a Foreign Service pension must expressly provide for such waiver.
The statute states:
(a)Living Service members
- Unless otherwise expressly provided by any spousal agreement or a court order, a former spouse is entitled to an annuity if such was married to the participant for at least 10 years during service of the participant…
Thus, the trial court held that such a waiver must include a specific reference to a Foreign Service pension. Because the agreement was silent on the Foreign Service pension such was not waived and Mr. Oshinaike had a valid claim against such retirement benefits and funds. The trial court subsequently incorporated this ruling into the final decree of divorce.
The Court of Appeal addressed specifically whether a valid waiver under section 4054(a) requires specific reference to Foreign Service retirement benefits. It held that it does not and that a general waiver was sufficient. That is, an unambiguous waiver of all pension, annuity, and survivor benefits suffices under section 4054(a).
Moreover, the Court of Appeals held that section 4054(a) was intended to protect Foreign Service spouses and therefore must be strictly and literally construed. However, the legitimate interests of Foreign Service spouses would not be undermined or diluted by enforcing unambiguous general waivers that specifically refer to all pension, annuity, and survivor benefits.
Clearly, if the post-nuptial agreement was drafted with more details and specificity all of the ensuing litigation could have been avoided. It is imperative that all annuity, retirement and survivor benefits be listed under their specific designation providing sufficient notice and disclosure for an enforceable waiver as martial property.
Moreover, all statutory references and guidance has to factored in and incorporate into the agreement in order for the agreement to be compliant and thus enforceable.
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