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Military Divorce - Division of Military Retired Pay

Military divorce is not a legal term, but rather a lay term used to describe when one (or both) parties to the divorce is a member of the armed forces. It doesn't mean that the couple is exempt from the same requirements that any other couple has to fulfill when filing for a divorce. One exception might be that some states will relax the residency requirements when a member of the military on active duty wants to file in the state in which they are stationed. What is different about divorce for servicemembers is the division of retirement pay.

The Battleground in Military Divorce Cases: Language for Division of Military Retired Pay

Military DivorceIf you are a servicemember or servicemember's spouse facing divorce, the treatment of military retired pay in divorce is probably at the top of your list of concerns. The basics of the division of a servicemember's military retired pay in divorce are fairly simple:

  • Federal law allows state divorce courts to divide military "disposable retired pay" (gross military retired pay minus any deductions for disability), according to state divorce laws
  • The Defense Finance and Accounting Service ("DFAS") can pay the servicemember's spouse his or her portion of military retired pay directly where the marriage overlapped with 10 years or more of the member's military service.

Those are the basics, but they do leave room for negotiation and advocacy on each party's behalf by skilled military divorce attorneys. DFAS will enforce state court orders dividing military retired pay in any one of a number of different ways. In a given case, some methods of division are more beneficial for the servicemember and some for the spouse. The exact language of the separation agreement or divorce decree can save or cost either party a great deal of money during the course of the servicemember's retirement. The following are all acceptable (by DFAS) methods of dividing military retired pay:

  1. fixed dollar amount
  2. percentage
  3. formula award
  4. hypothetical award

Division of Retired Pay by Fixed Dollar Amount or Percentage

If the member is already retired, it is best to structure the military retirement award in terms of a fixed dollar amount or percentage, as an appropriate award can be easily calculated by making reference to the standard retirement variables: the date of marriage, the date of separation, the dates of service, and the member's rank and base pay at retirement. For example, a separation agreement or divorce decree might contain the following language:

  • The former spouse is awarded ___ percent of the member's disposable military retired pay per month; or
  • The former spouse is awarded ___ dollars of the member's disposable military retired pay per month.

An award of a percentage would allow the spouse to share in future cost-of-living adjustments to the servicemember's retired pay, whereas an award of a fixed dollar amount would not.

Division of Retired Pay by Formula Award or Hypothetical Award

In addition to accepting fixed dollar amount or percentage awards as set forth above, DFAS will accept and process orders that contain formula awards and hypothetical awards. These two forms are appropriate for servicemembers still on active duty or for reservists who continue to accumulate reserve points.

Formula Awards. A formula award uses a standard formula to calculate the spouse's "marital share" of retired pay, and is based on the member's actual retirement variables at the time retirement--even though they are not known at the time of divorce. Essentially, a divorce decree or separation agreement containing a formula award specifies the number of months of marriage before separation that overlapped with military service, or the number of Reserve retirement points the member earned during the marriage prior to separation. The other variables, such as the length of service and the member's base pay at retirement, are unknown until the member actually retires. Upon the member's retirement, DFAS will plug in those numbers, calculate the marital share and then begin making payments to the former spouse. The following are examples of acceptable formula awards:

  • [Active duty formula] The former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is x months of marriage before separation during the member's creditable military service, divided by the member's total number of months of creditable military service.
  • [Reservist formula] The former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is x retirement points earned during the period of the marriage before separation, divided by the member's total number of retirement points earned.

Please note than in these formula awards, x--the numerator of the marital share--must be stated in the separation agreement or divorce decree (otherwise the agreement/decree will not be enforceable by DFAS). However, that is usually done easily enough, by simply calculating the number of months of marriage during the marriage before the final separation (or in Reserve cases, the number of retirement points earned during the marriage before the final separation).

Hypothetical Awards. A hypothetical award is typically used to limit the former spouse to what the member would have earned had the member retired on the date of separation, with his or her rank and base pay as of that date. Such an award can greatly favor the servicemember, by preventing the spouse from benefiting from the years the member works and the promotions the member receives after separation. All of the following hypothetical awards are acceptable by DFAS:

  • [Active duty] The former spouse is awarded _____% of the disposable military retired pay the member would have received had the member retired with a retired pay base of ________ and with _______ years of creditable service on ________.
  • [Active duty] The former spouse is awarded _____% of the disposable military retired pay the member would have received had the member retired on his actual retirement date with the rank of ________ and with _______ years of creditable service.
  • [Reservist] The former spouse is awarded _____% of the disposable military retired pay the member would have received had the member become eligible to receive military retired pay with a retired pay base of _______ and with _______ Reserve retirement points on _______.
  • [Reservist] The former spouse is awarded _____% of the disposable military retired pay the member would have received had the member become eligible to receive retired pay on the date the member attained age 60, with the rank of ________ , with _______ Reserve retirement points, and with _______ years of service for basic pay purposes.

In all these examples of hypothetical awards, all of the blanks would need to be filled in, in the language of the separation agreement or divorce decree, for the language to be enforceable by DFAS. Note that DFAS can process these hypothetical awards based on the member's date of separation even if the member was not yet eligible for retirement as of that date--so long as the language for the hypothetical award is properly stated in the separation agreement or divorce decree.

Filling in the blanks in one of these hypothetical awards is often much trickier than simply calculating the numerator of the marital share in a formula award. It typically requires the assistance of an experienced military divorce attorney--and can become the subject of intense debate in separation agreement negotiations.

Conclusion

The exact language used in dividing a servicemember's military retired pay can have a large financial impact on the parties. Securing representation by an experienced military divorce lawyer, familiar with the different methods for retired pay division enforceable by DFAS, is essential in these cases.


This information was supplied by James Livesay, a family law attorney at Livesay & Myers, P.C. He is one of several Manassas divorce lawyers in the firm, handling military and civilian divorce cases in Manassas, Prince William County and all across Northern Virginia. A former Navy JAG, Mr. Livesay and his firm handle a large number of military divorce cases.

James Livesay can be contacted by phone at (571) 208-1267 or or Visit Web Site

Additional Divorce Resources and Information:

Directory of Attorneys Directory of Mediators FAQ's Featured Articles Child Support Calculators Child Support Treatment of Disability Pay in Military Divorce

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