| Ms. Berry is the managing partner and has a wide range of experience in the representation of federal, public, and private sector employees as well as small business organizations. Her practice focuses on employment, retirement, business, and contract law. |
This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
On October 10, 2025, the United States Court of Appeals for the Federal Circuit issued a major ruling in OPM v. Moulton, holding that the Office of Personnel Management (OPM) may only divide a federal retiree’s Federal Employees Retirement System (FERS) annuity supplement with a former spouse if a court order or divorce decree expressly provides for such a division. The decision affirms the Merit Systems Protection Board’s (MSPB) interpretation of the law and rejects OPM’s broader approach adopted in 2016.
Background: FERS Annuity Supplement
Most federal employees are covered by FERS which is made up of three components: (1) Social Security benefits, (2) a Thrift Savings Plan (a retirement savings and investment plan similar to 401(k) plans available to private-sector employees), and (3) a basic annuity payment. For employees who retire before reaching age 62, the earliest Social Security retirement age, FERS also provides a retirement annuity supplement, which is a temporary payment meant to bridge the gap between retirement and Social Security eligibility.
Traditionally, OPM did not divide the FERS annuity supplement between a retiree and a former spouse, as the annuity supplement was not considered to be subject to division. However, OPM altered its approach in 2016. It began interpreting any court-ordered division of the basic annuity as implicitly including the annuity supplement, even if the order did not expressly say so. OPM applied this new interpretation retroactively, demanding repayment from retirees and reducing future supplement payments.