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Military Divorce - Division of Military Retired PayMilitary 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
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:
Division of Retired Pay by Fixed Dollar Amount or PercentageIf 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:
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 AwardIn 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.
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:
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. ConclusionThe 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 Virginia divorce lawyers in the firm, handling military and civilian divorce cases across Northern Virginia. A former Navy JAG, Mr. Livesay and his firm handle a large number of military divorce cases.
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