---
kind: "section"
citation: "5 C.F.R. § 838.306"
title: "5"
number: "838.306"
heading: "Specifying type of annuity for application of formula, percentage or fraction."
url: "https://uscodex.org/cfr/5/838.306"
---

# §838.306. Specifying type of annuity for application of formula, percentage or fraction.

- (a) A court order directed at an employee annuity that states the former spouse's share of employee annuity as a formula, percentage, or fraction is not a court order acceptable for processing unless OPM can determine the type of annuity (i.e., phased retirement annuity, composite retirement annuity, net annuity, gross annuity, or self-only annuity) on which to apply the formula, percentage, or fraction.
- (b) The standard types of annuity to which OPM can apply the formula, percentage, or fraction are phased retirement annuity of a phased retiree, or net annuity, gross annuity, or self-only annuity of a retiree. Unless the court order otherwise directs, OPM will apply to gross annuity the formula, percentage, or fraction directed at annuity payable to either a retiree or a phased retiree. [Section 838.625](/cfr/5/838.625.md) contains information on other methods of describing these types of annuity.
- (c)
  - (1) A court order may include provisions directed at:
    - (i) Phased retirement annuity payable to a phased retiree, to address the possibility that an employee will enter phased retirement status;
    - (ii) Composite retirement annuity payable to a phased retiree at entry into full retirement status, to address the possibility that an employee will enter phased retirement status and then enter full retirement status; and
    - (iii) **Annuity payable to an employee who retires without having elected phased retirement status.**
  - (2) To separately provide for division of phased retirement annuity or composite retirement annuity, a provision of a court order must expressly state that it is directed at “phased retirement annuity” or “composite retirement annuity,” and must meet the requirements of [paragraph (a)](#a). That is, it must state the type of annuity to be divided (e.g., “net phased retirement annuity”). If such a provision is unclear as to whether it is directed at gross, net, or self-only phased retirement annuity or composite retirement annuity, the provision will be applied to gross phased retirement annuity or gross composite retirement annuity, as described in [paragraph (b)](#b) of this section.
  - (3) Unless a court order expressly states that phased retirement annuity or composite retirement annuity is not to be divided, a court order meeting the requirements of [paragraph (a)](#a) of this section and that generally provides for division of annuity, without meeting the requirements of [paragraph (c)(2)](#c-2) of this section, regarding the specific type of annuity being divided, will be applied to divide any employee annuity, including phased retirement annuity and composite retirement annuity.

## Notes

### Amendments

[79 FR 46627, Aug. 8, 2014]

### Authority

Authority: 5 U.S.C. 8347(a) and 8461(g). Subparts B, C, D, E, J, and K also issued under 5 U.S.C. 8345(j)(2) and 8467(b). Sections 838.221, 838.422, and 838.721 also issued under 5 U.S.C. 8347(b).

### Source

Source: 57 FR 33574, July 29, 1992, unless otherwise noted.

### Amendments

[79 FR 46627, Aug. 8, 2014]