to a pro rata share of [spouse's] retirement and survivor annuities under the Act was established after the adoption of the settlement agreement and before the entry of a divorce decree."). Therefore, the statute entitles Ms. Wilkinson to a portion of Mr. Wilkinson's pension absent a qualified agreement to the contrary.
The Foreign Service Act of 1980 requires that any waiver by a former spouse of his or her rights in the retirement benefits of a former spouse must be "express." In enacting this provision, Congress was acutely aware of "the special problems faced by Foreign Service spouses." S. Rep. No. 913, 96th Cong., 2d Sess. 67 (1980), 1980 U.S.C.C.A.N. 4550. The requirement that any waiver of rights be express reflects Congress' stated concern that:
"Overseas service frequently results in cutting off these individuals from their community roots, thereby exacerbating the problems normally faced by women seeking divorce. In particular, this results in reliance on a husband's lawyer or on his recommendation. Section 814, therefore, seeks to provide some protection for these individuals . . ."
Thus, the law clearly requires and Congress intended that any waiver of statutory rights to retirement benefits be "express." Congress reasonably inserted such a requirement to protect foreign service spouses from the possibly stressful or even coercive situations which it thought could arise in the context of a divorce. As a matter of law, then, an unexpressed intention on the part of the parties to effect a waiver is insufficient.
The general waiver provisions in the Wilkinsons' separation agreement are not sufficient to terminate Ms. Wilkinson's statutory entitlement to her former husband's pension. First, the Department has reasonably construed the Act's "express" waiver provision to require that a former spouse file "a notarized spousal agreement . . . expressly waiving [the] pension entitlement." D. Mem. at Exhibit B. The Department's interpretation of the waiver requirement is clearly in accord with both the plain language and the Congressional intent of the Act. Thus, the Department's construction governs this case. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). It is undisputed that no notarized agreement has been filed with the Department in which Ms. Wilkinson expressly waived her rights to her husband's pension.
Therefore the Department is correct in continuing to recognize Ms. Wilkinson's entitlement to Mr. Wilkinson's retirement benefits.
In addition, under District of Columbia law, the separation agreement does not contain a sufficiently express waiver. In Williams v. Williams, 472 A.2d 896 (D.C. 1894), the D.C. Court of Appeals held that a general waiver in a separation agreement, executed before the Act went into effect, could not be read as an "express" waiver of foreign service pension benefits.
Like the separation agreement in Williams, the Wilkinsons' Agreement is general in its terms, never referring expressly to the rights created under the Act or even to foreign service pension benefits generally. Like Williams the Agreement in this case was executed before the Act went into effect, when the statutory right which Ms. Wilkinson is said to have waived did not even exist in its present form. Finally, like Williams the release provision in the Agreement does not mention Congressional entitlements created in the future, but refers to claims which either party "ever had or now has." D. Mem. at Exhibit A, P23. Under these circumstances, "the creation by statute of a spousal entitlement subsequent to this property settlement agreement and before entry of a divorce decree cannot be erased by a waiver clause limited to claims extending only to the date of the settlement agreement itself." Williams, 472 A.2d at 899.
The Plaintiff complains that Ms. Wilkinson has received a "windfall" in her husband's pension benefits. It is not before this Court, however, whether or not Ms. Wilkinson received an unexpected benefit after serving her country for twenty years as the spouse of a foreign service officer. If she did receive such a "windfall," it was because Congress chose to give it to her, and any complaints which Plaintiff might have should therefore be directed to the legislature, not the judiciary.
United States District Court
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 785 F. Supp. 1037.
ORDER - March 13, 1992, Filed
Upon consideration of the entire record in the above-captioned matter, the Defendant's Motion for Summary Judgment, and the Plaintiff's opposition thereto, it is this 12 day of March, 1992 hereby
ORDERED that Defendant's Motion For Summary Judgment is GRANTED and it is
FURTHER ORDERED that this case be DISMISSED.
United States District Court