Sally Green, a servicemember, has just hired you to handle the divorce and all related issues. Congratulations, you have your first military divorce case!
Sally Green, a servicemember, has just hired you to handle the divorce and all related issues. Congratulations, you have your first military divorce case!
Before the ink is dry on the legal services contract, you are probably thinking, “Now what? I know next to nothing about how to handle a military divorce.” The purpose of this Article is to provide an overview of legal issues that any lawyer, from the most seasoned litigator to the new associate, may encounter when handling a family law case in which one (or both) of the parties is serving or has served in the armed forces.
One of the first things you should determine is whether the servicemember or spouse is in the right office, or whether you need to refer them to a colleague in another state. The question is whether your state has jurisdiction over Sally Green, and the issue in most cases is domicile. In military cases, the determination of domicile can be complex. Domicile is usually the place where a person presently resides. In the case of temporary absence, it can also be the place to which one intends to return, the place of his or her true, permanent home. The two essential elements of domicile are (1) a residence in a place where the person is physically present and (2) the person’s intention to remain at that residence. If the person was previously domiciled elsewhere, that domicile must be abandoned in order to acquire the current domicile.1 Every individual is domiciled somewhere at all times; therefore, a domicile continues (once established) until it is replaced with a new domicile. Domicile is not a servicemember’s “home of record.” The term “home of record” is a term the military services use for the state where a person enters the service or reenlists, and it does not equate to domicile.
Domicile is a critical issue in military cases due to involuntary relocations of servicemembers and their families. Military orders to another state or country do not necessarily mean that our client, Sally Green, has changed her domicile. Many state courts have held that domicile continues even though Sally Green may be stationed in different states, or countries, for years.2
A practitioner should ask questions to determine the client’s history, using a domicile checklist.3 The questions and issues should include items such as state income tax, addresses used for tax purposes, ownership of real estate, voter registration, vehicle registration, driver’s license, professional licenses, and so forth. Domicile is based upon the totality of circumstances, so this list is not exhaustive.
Counsel should ask Sally Green about her actions. Did she make a formal declaration of her intent? Did she move her family to the state? Did she declare the state her residence on other documents such as wills, deeds, leases, contracts, mortgages, or insurance policies? Did she execute a DD Form 2058, “State of Legal Residence Certificate,” at her local personnel or finance office? This list is not a complete inventory, but it should assist an attorney with the initial inquiry into domicile.
Check your state statutes or rules to determine the requirements for divorce. For example, some states require the physical presence of the servicemember. Some states have statutes that seem to provide domicile through residency.4 Proceed with caution here, as residence alone is not domicile. The authors recently were involved in a case in Washington with such a statute, purporting to grant domicile to a servicemember who is was only temporarily stationed in the state.5 The best practice is to assess this issue at the outset; this may avoid an unnecessary expenditure of attorney time and client funds if your state is not the appropriate domiciliary state.
It is worth noting that the court in your state may have jurisdiction over portions of the case (such as custody under the Uniform Child Custody Jurisdiction and Enforcement Act) without domicile. Jurisdiction for military pension division is addressed in greater detail in the military pension division section below. When in doubt, do your homework and consult an expert if necessary.
You will need to locate the other party to start your case. This ordinarily means effecting service, something with which any practitioner is familiar in a “regular” family law case. What do you do when the defendant is in the military? The military locator services will not provide information on where a servicemember is stationed due to Department of Defense (DoD) guidelines.
Do not be discouraged—there are options for locating a servicemember. The starting point is the servicemember’s Social Security Number (SSN). With the SSN in hand, you may contact the local armed forces recruiting office. This office typically has access to military personnel locators and may be able to assist. A military family member may be able to do the same. Another option is to contact the “base locator” at the installation where the servicemember was last stationed. A servicemember can usually be reached through his or her military unit address. One other approach is to seek the help of a military legal assistance attorney (LAA). The LAA is a judge advocate officer or civil service lawyer assigned to help servicemembers and their family members with legal problems. He or she may be able to help with locating the servicemember or obtaining the servicemember’s address for service of process.
Another option is to seek military personnel records from the respective branch of service. Each branch has a point of contact, but typically the branch of service will not release home addresses or telephone numbers without the servicemember’s consent.6
Once counsel for our spouse, John, has determined where Sally Green is located, how can counsel accomplish service? Service by mail is the most cost-effective starting point for most cases, and therefore many practitioners will want to use this for the first attempt. If the servicemember is abroad, counsel will need to ensure that the country does not object to this method of service.7 While service is available at most military installations, the commander may assert the position that he or she is not allowed to serve process.8 If service by mail is unsuccessful, write a letter to the unit commander explaining your efforts and request that the unit commander take the documents with an acceptance of service to the servicemember.9 The unit commander ordinarily asks Sally Green if she will accept service; she may accept or decline.
Each of the branches of service have regulations regarding assistance in the service of civil process.10 A sheriff can still be used to accomplish service on a military installation within the United States. Military authorities will make the servicemember available for service, assuming he or she is on the base and not on an exercise, or otherwise unavailable. This approach may not work if the documents are issued from a state other than the state of the military installation. In such a case, the commander will usually see if the servicemember is willing to accept.
There are other options for service depending on the service rules in your state. One example is substituted service, though a practitioner should be careful to first exhaust other service methods and to avoid offending due process rules.11 Other service methods, including methods available for service abroad, are not covered here.
Make sure to advise your client at the outset about the potential service difficulties. When service of process difficulties make a prompt resolution of the case impossible, the client frequently becomes uneasy and begins questioning the attorney’s competence. If the attorney has not spent time cautioning the client about delays and difficulties, there will likely be problems.
The Servicemembers Civil Relief Act (SCRA)12 provides protection to servicemembers regarding judicial and administrative proceedings, as well as transactions that might impact the rights of a servicemember during military service. Our servicemember, Sally Green, may have difficulty participating in litigation while serving, and the armed forces prefer that military personnel are not taking leave from pressing duties on a regular basis to address civil matters.
In representing John Green, the servicemember’s spouse, the practitioner should begin with verifying Sally’s military status. The SCRA is probably not applicable unless Sally is in the military. This check should occur after Sally Green has been served if she has not made an appearance. The best way to verify military status is through the Defense Manpower Data Center (DMDC) by visiting the Center’s website for SCRA inquiries, https://scra-w.dmdc.osd.mil/scra/#/home, and entering the individual’s name and Social Security Number.
The primary protection for Sally under the SCRA is to seek a stay of proceedings. Note that the court must decide whether to grant a stay of the proceedings even if the servicemember has not made an appearance.13 The court must stay the proceedings for at least ninety days if it determines that there may be a defense that cannot be presented without the servicemember’s presence.14 Without compliance with the SCRA, any order entered may be be set aside or reversed on appeal.15
If Sally Green applied for a stay, take a close look at the request. The four essential elements of the request are (1) a statement as to how the servicemember’s current military duties materially affect her ability to appear, (2) a date when the servicemember will be available to appear, (3) a statement from the servicemember’s commanding officer that the servicemember’s current military duty prevents an appearance, and (4) the commander’s statement that military leave is not authorized for the servicemember at the time of the statement.
The request is not formally done as there are no technical requirements.16 There is a risk that the order will be overturned on appeal if a stay is not granted when all four elements are met by the servicemember.17 If Sally Green forgets an element or two, the court still has discretion to grant her request and order a stay.18 Counsel for the servicemember can request a stay without fear of waiving her rights because Sally Green does not enter an appearance by requesting a stay, nor does she waive any defenses.19
This is not an exhaustive review of the SCRA and potential strategies for the servicemember or the former spouse, but rather a starting point for the attorney dealing with this issue for the first time.20 There are many other considerations, such as the appointment of counsel, the use of discovery, defenses to a stay, custody cases and the SCRA, and obtaining default judgments. A practitioner facing an SCRA situation should do his or her homework, and if necessary consult an expert in the field such a JAG officer or practitioner with substantial experience in military divorce.
In any military family law case, the division of military retired pay must be considered. The primary law in this area is the Uniformed Services Former Spouses’ Protection Act (USFSPA).21 It applies to the Army, Navy, Air Force, Marine Corps, and Coast Guard. It also covers the Reserves, the National Guard, and the Commissioned Corps of the Public Health Service and the National Oceanic and Atmospheric Administration. This law made military pensions divisible upon divorce, addressed state court jurisdiction over military pension division, and granted direct payment from the retired pay centers (Defense Finance and Accounting Service, or DFAS, and the Coast Guard Pay and Personnel Center) for certain cases.
The military pension is often one of the largest assets in a military divorce (and sometimes the most misunderstood). Many military couples have difficulty making other long-term investments and do not contribute meaningfully to the nonmilitary spouse’s retirement. This is due to the requirements for the military career, such as frequent relocations, increased scheduling demands of a military family, unexpected or last-minute travel for exercises or operations, difficulty for the spouse maintaining or obtaining employment with retirement benefits, and the need for one spouse to take care of children and/or maintain the home. Counsel should note that military pension division is not automatic, nor is it mandated by the statute.22 One should also note that USFSPA does not provide specific guidance on how to divide military pensions. Instead, the states decide how to divide the military pension and to what extent it is marital or community property.23
Dealing with pension division can be a minefield, particularly a military pension division. One such landmine is that state law may require vesting before a pension is considered to be marital or community property.24 Another problem is whether the pension needs to be valued in order to be divided, as is required in some states.25 Counsel must determine the appropriate methodology to use in ascertaining the present value.26 The former spouse would need to retain a certified public accountant, economist, or actuary to perform the appropriate calculation. Additionally, a good practitioner must consider engaging a “copilot” to educate the expert in understanding the military retirement system, methods of dividing the pension, allocation of the Survivor Benefit Plan, garnishment requirements and restrictions on pension division. Such a consultang could be a retired JAG officer, a judge advocate serving in the National Guard or Reserves with experience in the area, or an attorney who regularly handles military pension division cases. With this help, the expert would review the cases, decide on the methodology, and determine the present value of the pension using appropriate discounts and mortality tables. Tread carefully, take care to make sure you understand your state’s law on the issue of pension division, and consider consulting an expert in the field.
For a practitioner new to military family law, jurisdiction for the military pension division is essential to understand. The question is one of federal law, and a state must have jurisdiction under federal law to divide the pension of our servicemember, Sally Green. Long-arm jurisdictional statutes do not confer the authority to divide military pension; rather, it is set forth in the USFSPA.27 A state may exercise jurisdiction over a servicemember’s pension rights if (1) the state is his or her domicile, (2) the servicemember consents to the jurisdiction of the court, or (3) the servicemember resides there for reasons other than a military assignment in that state or territory.28 These statutory provisions preempt state law. The first requirement, domicile, was discussed above. The second jurisdictional option, consent, is not straightforward in a case where the servicemember did not specifically consent to pension division, or impliedly consented by seeking other relief. While the courts in some states have held that a party impliedly consents to USFSPA jurisdiction by waiving a challenge to personal jurisdiction,29 the courts are split on this issue.30 There are no federal guidelines or standards; therefore, you must check your state’s law to determine what actions by Sally Green may give rise to consent to jurisdiction under federal law. The third jurisdiction option under USFSPA is uncommon as most servicemembers reside in a state either due to being domiciled in that state or due to their military assignment.
Before advising on the division of the pension, the lawyer must have some general knowledge of how military member’s retired pay is determined.31 For almost all presently serving military members, retired pay is calculated by using the “High-3,”32 i.e., the servicemember’s highest three years of basic pay.33 Usually this is the most recent thirty-six months of service.
The individual’s retired pay may be determined by multiplying the retired pay base (the High-3) times the retired pay multiplier (years of service times 2.5%). As an example, if a member’s High-3 pay were $4,000 and the years of service were twenty, then he or she would receive $2,000 monthly as retired pay. An annual cost-of-living adjustment (COLA) is applied to retired pay34 based on the Consumer Price Index.
For National Guard and Reserve retirements, there is a variation. Instead of years of service, the retired pay center (DFAS or the Coast Guard Pay and Personnel Center) takes the total retirement points and divides that by 360 to get the equivalent years of service. As an example, if a servicemember had 3600 retirement points, then the equivalent years of service would be ten, and using the information in the preceding paragraph, the individual’s retired pay would be $1,000 per month ($4,000 base pay × 10 years × 2.5%). To receive retired pay, a Reservist or Guardsman must have performed at least twenty years of qualifying service.35 The twenty years must be “good years,” meaning the servicemember must acquire at least fifty points in each year.36 The Army Retirement Services Office (RSO) at any military installation is an excellent resource for counsel. The RSO has guides that explain Reserve and Guard retirement.37 Information from the RSO applies equally to all branches of service.
The calculations of the spouse’s share of the military pension are the province of state law. The majority rule is often called the “time rule.” The marital fraction under this rule involves, as numerator, months of military service during the marriage and, as denominator, total period of military service.
Some states fix the benefit to be divided on the date of divorce.38 In those states, the marital interest in the fixed-benefit pension is computed by multiplying the servicemember’s benefit with the numerator as the creditable service time during the marriage and the denominator as the creditable service time up to the date of divorce.
A sea change occurred in December 2016 with the passage of an amendment to the USFSPA called “the Frozen Benefit Rule,” as part of the National Defense Authorization Act for the Fiscal Year 2017. This revised rule for dividing military pensions changed the landscape of the military pension division field entirely, forcing upon all states the fixed-benefit pension approach described in the preceding paragraph.39 This Rule is addressed below in Part X, Frozen Benefit Rule.
With the calculations in hand, the practitioner will need to prepare a military pension division order to divide Sally Green’s military retired pay.40 Counsel must be aware that not all pay is created equal, and some forms of payment may be exempt from division by the retired pay center. While state law may consider some forms of payment to be marital or community property, federal law makes them off-limits. Thus, disability compensation from the Department of Veterans Affairs, Combat-Related Special Compensation (CRSC), and most or all military disability retired pay (MDRP) are exempt from division as property.41 This is because USFSPA only authorizes the courts to divide “disposable retired pay,” or DRP. The deductions taken from gross retired pay to arrive at DRP include VA disability compensation42 and MDRP, based on the percentage of a member’s disability.43 CRSC is specifically recognized by statute as not being divisible community or marital property.44 The attorney for the spouse will need to educate the client on these potential ways of the retiree obtaining additional income that have the effect of reducing the retired pay available for division.
To apply for payments under USFSPA, the spouse must first obtain a court order (certified by the clerk) and submit it to the appropriate retired pay center along with a completed application, DD Form 2293.45 The retired pay center, typically Defense Finance and Accounting Service (DFAS), will not make payments to a former spouse unless there is compliance with the “10/10 rule.”46 To be eligible, Sally’s husband, John, would have to be married to Sally for at least ten years that overlap with at least ten years of creditable service toward retired pay. Note that the “10/10 rule” is not a bar to the divisibility of uniformed services retired pay, and thus it does not impact a court’s ability to divide the pension. Rather, it is an enforcement rule that prevents a court from using the retired pay center to garnish retired pay on a monthly basis.47 A spouse who does not meet the “10/10 rule” can still receive a share of retired pay, but it must be paid directly by the spouse or potentially by other means available via state law.
One advantage of the direct payment from the retired pay center is tax withholding and reporting. If DFAS pays the former spouse, the pension share payments are excluded from the retiree’s pay and are shown on her Form 1099-R; the payment is reported on the former spouse’s Form 1099-R, and this makes tax reporting each April 15 easier for both parties. Direct payment also eliminates the need for monitoring and means that the former spouse doesn’t have to worry about noncompliance because the payments come from DFAS.
Counsel will need to select how to divide the pension. The acceptable methods are set out in the Department of Defense Financial Management Regulations (DoDFMR) at Chapter 29 of Volume 7B.
The first method is the fixed dollar amount. This method is beneficial for the military member or retiree because cost-of-living adjustments (COLAs) do not apply to a fixed dollar amount clause. A fixed dollar clause can be simply written as “John Green is awarded $750 per month of Sally Green’s military retired pay.”
The second method for division is a percentage. This method states that John Green will receive a specific percentage, which would include COLAs. All of the variables must be known for this clause; that is, one must know the percentage of the marital or community property for the former spouse. Additionally, the marital or community property fraction (marital pension service divided by total pension service) must be known. For example, “John Green is awarded 36% of Sally Green’s retired pay.”
The third method is a formula clause. This format is usually employed when the servicemember is still serving. Such a pension division clause might read “John Green is awarded 50% of Sally Green’s military retired pay times a fraction, the numerator being 148 months of marital pension service, and the denominator being the total months of service.” DFAS will not guess or interpret the parties’ intent, and therefore the numerator must be stated. DFAS can provide the total months of service upon retirement. When the member is in the Guard or Reserves and a formula clause is used involving an unknown denominator, the marital or community fraction must be expressed in terms of retirement points, not time.48
The fourth type of pension-division clause is the hypothetical. This means basing the pension to be divided on facts (such as pay grade, High-3, or years of service), which are different from what exists at Sally Green’s retirement. If the parties’ interest is fixed as of some valuation date, as in Florida, Kentucky, Oklahoma, Tennessee, and Texas, this approach would be used. It might also be used by the servicemember’s attorney in a negotiated settlement because it fixes the pay to be divided, rather than using the individual’s final and actual retired pay. As an example, assume that the parties divorce when Sally Green is a lieutenant (pay grade O-3) in the Navy with twelve years of creditable service. The hypothetical clause for this situation might read: “John Green is awarded 42% of the military retired pay that Sally Green would have received had she retired with a retired pay base of $6,751.20,49 and with twelve years of creditable service on ___, date of divorce.” COLAs will be awarded with any hypothetical clause. Information on proper language for a hypothetical clause is in the Silent Partner info letter, “Military Pension Division: Guidance for Lawyers.”50
The Frozen Benefit Rule51 describes an amendment to the USFSPA made in December 2016, which makes division of retired pay more difficult and grants less of the actual retired pay to the former spouse. At the time the law was enacted, about forty-five states used the “time rule” to divide a defined benefit plan. This means dividing actual, final retired pay, not a hypothetical amount as of the date of divorce. The Frozen Benefit Rule operates to fix the benefit to be divided as if the member had retired on the date of divorce. The Rule applies to all those who are still serving, that is, military members who have not yet begun receiving retired pay. The Rule does not apply for those servicemembers who were divorced before December 24, 2016, and those who are already receiving retired pay on the date of divorce.52
In passing this revision to military pension division that fixes the division on the date of divorce, Congress ignored the near-universal rule that domestic relations law and, in particular, the division of marital or community property are the exclusive province of the states. It likewise cast aside the “marital foundation” approach found in the majority of states using the “time rule.” The idea behind the marital foundation approach is that the individual’s retired pay is based on a foundation of marital effort. The spouse contributes to the servicemember in various ways, such as making sacrifices of his/her own employment, raising children, maintaining the household, moving multiple times, supporting the servicemember’s career, etc. in order to advance the career of the servicemember. If the servicemember were a major (O-4) at the time of the parties’ divorce, he could not attain the rank of lieutenant colonel without having first been a major, which was attained during the marriage. It follows that at least some of the marital efforts that led to promotion to major also contributed to promotion to lieutenant colonel. Any argument about marital foundation issues (such as the spouse’s lack of contributions to one’s career) should be made to judges in a courthouse by counsel, not dictated by Congress. In effect, Congress has mandated that servicemembers are a special class in states where the pension would have otherwise been divided by the “time rule.” The state legislatures and courts should determine the rules and division of the military pension, as the USFSPA intended. There is no doubt that servicemembers are a deserving class, often sacrificing their bodies, and even their lives, for the national good. However, the spouses of the servicemembers also make sacrifices, such as frequent relocations and taking jobs that may not include retirement benefits. The USFSPA was passed to balance these hardships and to allow the states the power to treat military retired pay the same as other forms of deferred compensation in the event of a divorce.
The Rule is an upper limit on the amount of the military pension that can be divided in divorce. Therefore, our spouse, John Green, will end up receiving less of the pension than he would have been entitled to with division of actual, final retired pay because the court will be awarding him a reduced share based on Sally Green’s hypothetical retirement on the divorce date. If the order provides that John Green will receive more than is allowed by the Rule, such as a portion of actual, final retired pay, the law limits the amount that is payable to the member’s hypothetical retired pay upon dissolution.
To illustrate how this works, assume John Green obtains an order stating he is to receive fifty percent of Sally Green’s final retired pay. John believes this to be an exceptional order for him because he expects Sally to attain higher ranks before her retirement. In addition, he may not understand the restrictions imposed by the Frozen Benefit Rule. According to the Rule, the amount that John Green will actually receive is fifty percent of what the pension would have been had Sally Green retired on the day of divorce (plus COLAs). Without proper advice, John is sure to be surprised by this result, and he may even place a call to the state bar or a malpractice attorney.
Counsel should also note that the Rule has no exceptions. Thus, the parties cannot “opt out” by making an agreement to divide final retired pay. However, this does not necessarily mean that there are no work-arounds. For example, an alimony or spousal maintenance clause may be used to divide the pension without running into the restrictions of the Frozen Benefit Rule. When the parties are in agreement, a consent order for alimony, maintenance, or spousal support is one way to obtain time-rule payments from the military pension because an alimony garnishment is based on “remuneration from employment.” It is not tied to disposable retired pay (DRP), which is what the Frozen Benefit Rule redefined. Thus, the new Rule and its definition of DRP do not apply to permanent alimony payments, which start at retirement and function as a division of retired pay.53
There are other pointers that should be mentioned in the case of writing an order for permanent spousal support to mimic pension division as property. One of them involves getting direct payments from the retired pay center. There is no “10/10 rule” for alimony payments from DFAS, as is the requirement when the pension is divided as property (i.e., dividing the pension in a property distribution is not allowed unless there are at least ten years of creditable service concurrent with at least ten years of marriage).54
Counsel should make sure that the order’s language states that the payments made to the former spouse do not end at remarriage or cohabitation because pension-share payments would not end at either of these two events. The order should also specify that payments are not subject to modification based on a change of circumstances.
Admittedly, spousal support is usually effective immediately, not at some date down the road, such as retirement. In addition spousal support usually consists of a fixed dollar amount, not a formula such as:
50% × 120 months of marital pension service / Total months of creditable service
× final retired pay total months of creditable service
There is no reason, however, why the retired pay center should refuse to accept a formula for the spousal support, rather than a specific dollar figure.55
A consent order for permanent spousal support should suffice to obtain the former spouse payments upon retirement of the servicemember. Note, however, the tax consequences will not be the same because any alimony, spousal support, or maintenance paid pursuant to a written instrument signed after December 31, 2018, will not be included in the payee’s income and will not be deductible by the paying spouse, according to the Tax Cuts and Jobs Act of 2017. The parties will need to adjust the amount of the payment (or the percent) to account for the differences in tax treatment between pension-share payments to the FS and spousal support.
Counsel may be on either side of this issue, and the strategies vary greatly depending on the side. The strategy for the servicemember or the former spouse needs to be carefully considered and thought out prior to any settlement negotiations, and certainly prior to signing any court orders or agreements.56
Drafting a clause to comply with the Frozen Benefit Rule presents significant challenges to the drafting attorney because it is the most difficult clause to prepare of all the alternatives. The current text in the DoDFMR57 requires that the court order contain the member’s years of creditable service and the High-358 (i.e., the average of the highest thirty-six months of compensation for the servicemember), both as of the divorce date.59 The attorney for John Green must obtain this information to ensure there will be a qualified order for division of the military pension. Few attorneys are well prepared to draft such an order, and assistance will likely be necessary.
Will any errors in calculating the years of service, the retirement points, or the High-3 be caught and corrected by DFAS? It’s not likely. DFAS does not audit these numbers at the time of submission of the order (usually when the parties have just been divorced), nor does it verify the figures when retired pay starts. This “intentional blindness” can result in some severe consequences. For example, if the High-3 is artificially high or low, it will produce a drastically different result for pension division. Suppose Sally Green’s attorney drafts an order that states her High-3 is $2,000 per month when Sally held a rank as an O-3 in the Navy with twelve years of service at the time of divorce. Current pay tables60 would place her present base pay at $6,751.20 per month, a difference of over $4,000 per month! If John Green’s attorney does not catch the mistake, he should probably make a phone call to his malpractice insurance carrier. DFAS has adopted the position that the agency will use the information provided in the court order in its Frozen Benefit calculations; if there is a mistake, the court will need to issue a new order (a “clarifying order” in the words of DFAS) to sort out any such issues.
Unfortunately, DFAS will not calculate the High-3 or the amount payable under the Frozen Benefit Rule. This has far-reaching implications for counsel handling these cases. The agency that can best determine the High-3 for a servicemember is decidedly DFAS. All pay information is within their reach, yet they have decided to abdicate the role to the parties in a divorce lawsuit. In the adversarial context of divorce, John and Sally Green may be figuratively at each other’s throats, in a zero-sum game where one’s gain is the other’s loss. They may have the incentive to use guerilla tactics (including obscuring or manipulating High-3 information) to gain an advantage. Of the three players in this game, John and Sally Green know the least about the correct figures for the required data points to divide a pension under the Frozen Benefit Rule, and DFAS knows the most. Additionally, there is often a significant imbalance between the spouses in that Sally Green can freely and easily access her pay information and can deal with the DFAS representatives directly. John Green must rely on methods that are often time-consuming and expensive, such as the discovery process, or obtaining and issuing judge-signed subpoenas or court orders for DFAS to produce documents. Sally Green has every incentive to calculate the High-3 as low as possible because DFAS will not be checking behind her. Lastly, while DFAS will accept a clarifying order, the realities of litigation to obtain an additional order include not just time and expense for the former spouse, but also potential defenses such as laches, dormancy statutes, statutes of limitation, and res judicata.
When handling a pension division under the Frozen Benefit Rule, counsel needs to consider the timing of the divorce. In some states such as California or Florida, the pension division order, the signing of the marital settlement, or the incorporation of the separation agreement will occur almost always on the date of dissolution. In other states such as North Carolina, there is a waiting period before filing for the divorce, and pension division is routinely bifurcated from the other claims, such as alimony and equitable distribution. Counsel needs to consider whether the High-3 data points will change if the timing of the divorce and the settlement do not closely coincide. Generally speaking, servicemembers would want the divorce entered as soon as possible to fix the former spouse’s share of the pension. The authors have been involved in cases where the servicemember seeks a “quickie divorce” in a new state, such as the state where he or she is stationed, requiring the former spouse to hire another attorney to contest the action to avoid the risk of losing benefits.61
In preparing a Frozen Benefit Rule order, counsel must read the available rules at DoDFMR, Vol. 7B, Chapter 29, and 10 U.S.C. § 1408 (a)(4)(A) and (B). In addition, counsel must be familiar with state law regarding the division of military pension and defined benefit plans. Sally or John Green’s pension-share payments and future financial security depend on counsel’s competency in the division. This is not an area of the law where one document is as good as any other or where one solution fits all scenarios. Know and understand the law, contact an expert whenever possible, and ask questions.
Members of the National Guard and the Reserves, known collectively as members of the Reserve Component (RC), are also covered by USFSPA for the division of military retired pay; the Act does not apply solely to active-duty retirement benefits.62 There are several essential considerations for counsel in the division of Guard and Reserve retirement rights.
The first issue is “the gap.” There is almost always a gap in time between one’s application for transfer to the Retired Reserve (which may be made at any time after the attainment of twenty years of service creditable toward a Reserve Component retirement) and the start of retired pay, also known as “pay status.” Generally, RC members do not begin to receive retired pay until age sixty, regardless of when they stop drilling.63
The second consideration is how to express the marital fraction. Regardless of whether one represents the RC member or the spouse, the attorney should perform the calculations twice when using the Frozen Benefit Rule. The attorney should first check the calculation using a fraction expressed under the “time rule” with months of pension service and then one that uses retirement points for both numerator and denominator. Counsel will need a copy of the servicemember’s current “retirement points statement” to determine these figures.64 The results can be surprisingly different. Co-author Sullivan did the calculations for his own Army Reserve retired pay. The marital fraction using years of service during the marriage divided by total years is 90%. His fraction according to retirement points, however, is only 75%. The reduced marital fraction according to points is due to the fact that he served on active duty for 4½ years before marriage, with each day being one retirement point; in contrast, a typical year of weekend drill and two weeks of annual training will yield only about seventy-five points per year. Doing the comparison for the client may save him or her a lot of money!
The next consideration is that RC members will sometimes accumulate enough years of active-duty service to attain a “regular retirement” under Chapter 71 of Title 10, as opposed to a “non-regular retirement” (i.e., a Reserve Component retirement) under Chapter 1223. The difference is that the first involves immediate retired pay after at least twenty years of active duty, whereas the second ordinarily means waiting until age sixty. Counsel should remember this possibility when drafting the language in the court order or settlement document. An expert who is associated for the purpose of writing the settlement may suggest language that includes “Plan A” for a Guard/Reserve retirement and “Plan B” in case the servicemember attains a regular retirement.
Military pension payments end upon death, and therefore the Survivor Benefit Plan (SBP) is essential for the practitioner’s toolkit. The SBP is an annuity that provides continued income to a former spouse (if so specified) at the time of the servicemember’s death. In general, the cost for active duty servicemembers is 6.5% of the SBP base amount.65 The cost for Guard or Reserve members (who may participate as soon as they attain twenty years of creditable service) is about 10%. A spouse can be a beneficiary, as can others, such as a child of the servicemember.66 The maximum payment of SBP to the spouse is 55% of the SBP base amount. If the SBP base is one’s full retired pay, which, for example, is $3,000 per month, then the SBP payment would be $1,650 a month. Note that the “base amount” need not be the same as the member’s full pension. The “base amount” is computed in accordance with 10 U.S.C. § 1451.
It is vital to determine eligibility for SBP, both of the servicemember and the former spouse. The member is not eligible to participate until he or she has attained twenty years of service creditable toward retirement. A former spouse who remarries before age fifty-five will no longer receive SBP unless the marriage is terminated by annulment, divorce, or death of the new spouse.
The attorney in a military divorce case should also recognize the advantages and disadvantages of SBP before discussing the SBP decision with the client. One of the advantages of SBP coverage is security. Unlike private insurance, there is no required qualification or health exam, coverage cannot be refused or lapse, and coverage cannot be terminated if established by a court order served on the retired pay center. Another advantage is that SBP is immune to inflation since the payments are regularly increased by COLAs.
Is there a downside to SBP coverage? The answer is yes. The primary disadvantage of SBP is the cost. Compared to life insurance, SBP is quite expensive. In the example given above with $3,000 as the monthly pension amount, the cost for SBP with this as the SBP base would be about $200 a month. For that monthly amount, a client can purchase life insurance with a huge death benefit. When the cost issue is being discussed in earnest, counsel should be able to have a financial advisor or similar professional perform a cost versus benefit analysis on SBP and available insurance coverage.
There is a second disadvantage with SBP. It is a unitary benefit. It cannot be subdivided between a past spouse and a future spouse. “Your ex or your next” is the motto. Unlike the survivor annuity available to federal employees at divorce, there can be only one adult beneficiary for this survivor annuity.
When one’s client is the spouse, counsel should remember a simple three-step device to ensure that the client receives SBP coverage; the abbreviation is RRR. The “Three R’s” stand for Requirement, Request, and Register.
Requirement means getting a court order. The essential language for the order would be: “Sally Green shall immediately elect former-spouse SBP coverage for John Green.”
Request means that there must be an election of former-spouse coverage. The election may be of two types, one that is submitted by Sally Green (the servicemember) and one that is submitted by John Green (the former spouse). The former is an election made under 10 U.S.C. § 1448(b)(3)(A)(i)–(iii). The latter (called a “deemed election”) is made pursuant to 10 U.S.C. § 1450(f)(3)(A).
Register means timely serving the election form and the court decree or order on the government. For those who are retired or on active duty, the appropriate entity to serve is the retired pay center, usually DFAS. For RC members who are not yet receiving retired pay, the member’s election goes to the headquarters for the individual’s National Guard or Reserve component (e.g., Air Reserve Personnel Center, Buckley AFB, Colorado, for members of the Air Force Reserve and the Air National Guard). These elements are essential to ensure SBP coverage.
What are the deadlines? There are two. For the servicemember, the deadline for an election is one year from the divorce or dissolution. There is a different deadline for the former spouse; he or she must register the papers within one year from the order granting SBP. If you have missed the deadlines, contact an expert who has experience in seeking relief by appealing to the Defense Office of Hearing and Appeals or by applying to the appropriate Board for Correction of Military Records.
This is far from a comprehensive overview of SBP and all of the associated considerations. For more information on the SBP strategies and considerations, review the following, and the Silent Partner info-letters available at http://www.nclamp.gov > For Lawyers > Silent Partner: “Defending Against SBP in Divorce,” “Guidance for Lawyers: The Survivor Benefit Plan,” and “SBP Update: Special Needs, New Spouses.” There is a short pamphlet available that may assist a practitioner with a client, titled “The Survivor Benefit Plan: Basic Questions Answered” and located at https://www.nclamp.gov/media/489379/SBP-QA.pdf.
This Article is a brief overview of what counsel needs to know in a military divorce case. For reference, the topics of SBP and pension division are covered in Chapter 8 of the third edition of the The Military Divorce Handbook.67 Counsel must research, prepare, and work with experts to craft the best argument for his or her client. The navigation of this area of law is riddled with mines, and it is not to be taken lightly or without a handful of aspirin. The best advice is to use your resources, do your homework, ask questions, and look for a “co-pilot” to give the necessary expert assistance.
1. A person’s first domicile, the place of birth, is not voluntary. Any domicile after adulthood would represent a choice, specifically the place the person has chosen as his or her sole or primary residence. As mentioned, the intent to remain is also required.
2. See, e.g., Israel v. Israel, 121 S.E.2d 713, 715 (N.C. 1961); Edwards v. Edwards, 709 S.W.2d 165, 168 (Mo. Ct. App. 1986).
3. For an example of such a checklist, see Mark Sullivan, Silent Partner: Divorce and Domicile, Legal Assistance for Military Pers., https://www.nclamp.gov/publications/silent-partners/divorce-and-domicile/ (last visited Sept. 17, 2019).
4. See, e.g., N.C. Gen. Stat. § 50-18 (2019); Va. Code Ann. § 20-97 (2019); Tex. Fam. Code Ann. § 6.304 (2011).
5. 2019 Wash. Leg. Serv. 26.09.030. The case was dismissed for lack of jurisdiction, but not without a fight.
6. Military regulations and the Privacy Act of 1974 do not allow the release of home addresses or telephone numbers of service personnel without their consent. 5 U.S.C. § 552(a) (2018); for a more detailed discussion of locating a servicemember, refer to Mark E. Sullivan, The Military Divorce Handbook, ch. 1 (Am. Bar Ass’n, 3d ed. 2019).
7. For a good summary of international service of process via the Hague Convention for service of process, see W. Mark Weidemaier, International Service of Process Under the Hague Convention, Univ. of N.C. Sch. of Law Scholarship Repository (2004), https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1310&context=faculty_publications. It is also recommended to check the Department of State website and review the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Service Selection, Hague Convention on the Serv. Abroad of Judicial & Extrajudicial Documents in Civil or Com. Matters, https://www.hcch.net/en/instruments/conventions/specialised-sections/service (last visited Sept. 17, 2019).
8. There is no specific statutory prohibition on service of process, but the general concern stems from worries that serving civil litigants would contravene the Posse Comitatus Act, which prohibits using any part of the Army or Air Force to execute the laws. 18 U.S.C § 1385 (2018); see Weidemaier, supra note 7, at 6 n.30. The Department of Defense policy extends this to the Navy and Marine Corps as well. U.S. Dep’t of Def., Dir. 5525.5, Restrictions on Participation of DoD Personnel in Civilian Law Enforcement Activities (1986).
9. This assumes that your state’s ethical rules allow you to prepare an acceptance of service for the opposing party.
10. For the Army, see Dep’t of Army, Army Reg. 27-40, § 2-3 (1994). The Army regulation for serving on base is found at 32 C.F.R. § 516 (1994). Regulations for serving Navy and Marine Corps personnel at Navy and Marine Corps bases and on ships in U.S. waters are set out in 32 C.F.R. § 720.20 (1992) and Dep’t of Navy, JAGINST 5800.7E, ch. 6 (2007). For the Air Force regulation for service of process on USAF personnel at an Air Force base, see Sec’y of the A.F., A.F. Instruction 51-301, at 27 (2018). The Coast Guard regulation is in chapter 7 of the Coast Guard Military Justice Manual (MJM). U.S. Coast Guard, Military Justice Manual 7-1-7-22 (2011).
11. You do not want the judge to ask, “Why didn’t you use certified mail?” unless you can respond, “I did, your honor, but it was returned REFUSED.” The best rule, consistent with constitutional requirements of notice and due process, is that substituted service likely will be valid only when made on a suitable person at the residence of the servicemember from which he or she is only temporarily absent and under circumstances that make it likely that the servicemember will receive actual notice. For a detailed analysis of the problems with substituted service, see Weidemaier, supra note 7.
12. 50 U.S.C. § 3901 (2017).
13. Under 50 U.S.C. § 3931, the default provisions of the Act apply when the servicemember has not made an appearance. Id.
14. See Hernandez v. Hernandez, 906 A.2d 429, 435 (Md. Ct. Spec. App. 2006) (holding that the SCRA does not allow for judicial discretion as to the initial ninety-day stay).
15. See, e.g., Bond v. Bond, 547 S.W.2d 43, 45 (Tex. Civ. App. 1976) (holding that the trial court’s failure to grant defendant Air Force member’s motion for continuance of divorce trial for approximately two weeks was abuse of discretion under Soldiers’ and Sailors’ Civil Relief Act, where defendant was under order to remain at base for two weeks before his retirement); Real v. Real, 3 A.3d 1196, 1199 (Me. 2010) (issuing a domestic violence court order, which included support of $681 per month for wife, was entered while husband was on active duty; on appeal, the order was vacated due to violation of default provisions of SCRA); Harris v. Harris, 922 N.E. 2d 626, 640 (Ind. Ct. App. 2010) (reversing award of custody to mother due to trial court’s failure to comply with default provisions in SCRA).
16. A cocktail napkin or a phone call might suffice. This application does not have to be notarized, witnessed, or in any particular format.
17. Wood v. Woeste, 461 S.W.3d 778, 782 (Ky. Ct. App. 2015).
18. See, e.g., Higgins v. Timber Springs Homeowners, 126 So. 3d 382, 384 (Fla. Dist. Ct. App. 2013) (explaining that a failure of a servicemember to comply strictly with SCRA, as the stay of proceedings, did not justify a foreclosure judgment against him); Advanced Litigation, LLC v. Herzka, 2004 Del. Ch. LEXIS 128 (Aug. 20, 2004) (ordering a stay despite the absence of the commanding officer’s statement regarding military duties and leave).
19. 50 U.S.C. § 3932(c) (2017).
20. For a more detailed review of the SCRA, see Mark Sullivan, A Judge’s Guide to the Servicemembers Civil Relief Act, A.B.A., https://www.americanbar.org/content/dam/aba/publishing/family_law_enewsletter/Apr_SCRA.authcheckdam.pdf (last visited Sept. 20, 2019); Mark E. Sullivan, The Military Divorce Handbook (Am. Bar Ass’n, 3d ed. 2019).
21. 10 U.S.C. § 1408 (2018).
22. See id.
23. The “Frozen Benefit Rule” has changed the landscape. The rule is addressed infra at Part X.
24. See, e.g., Harris v. Harris, 31 N.E.3d 991, 997 (Ind. Ct. App. 2015) (holding that a pension in Indiana must be vested at time of divorce); Buckingham v. Gochnauer, 536 S.W.3d 155, 161 (Ark. Ct. App. 2017) (holding that a pension must be vested to be divisible, though the parties may agree to divide an unvested pension).
25. See, e.g., Powe v. Powe, 48 So. 3d 635, 637 (Ala. Civ. App. 2009) (explaining that valuation of military pension division is required for division in Alabama); Albritton v. Albritton, 426 S.E.2d 80, 84 (N.C. Ct. App. 1993) (explaining that the pension was not distributed because it was not valued); Grasty v. Grasty, 482 S.E.2d 752, 755 (N.C. Ct. App. 1997) (holding that all marital property must be valued before the court can accomplish property division; if the asset’s value cannot be found by the judge, then it cannot be distributed, remaining in the hands of the party who possesses it or has title, without setoff); Cunningham v. Cunningham, 619 S.E.2d 593 (N.C. Ct. App. 2005) (remanding case for presentation of husband’s valuation of military pension; wife’s value, without expert, was about $500,000 for a mid-career officer); Johnson v. Johnson, 750 S.E.2d 25, 33 (N.C. Ct. App. 2013) (upholding trial court’s decision that the court lacked evidence to value the retirement).
26. For Alaska’s rules as to valuation issues, the risk of nonvesting, and the effects of discounting and inflation, see Wainwright v. Wainwright, 888 P.2d 762 (Alaska 1995). For general information on valuation of pensions and the key aspects of military retired pay, see Mark K. Altschuler & Nora Kelley, Value of Pensions in Divorce, at chs. 13 (Valuation of a Defined Benefit Pension Plan), 23 (Military Pensions in Divorce) (5th ed. & 2018 Supp.).
27. 10 U.S.C. § 1408(c)(4) (2018).
28. See id.
29. See, e.g., In re Marriage of Booker, 833 P.2d 734, 740 (Colo. 1992); Gowins v. Gowins, 466 So. 2d 32, 34–35 (La. 1985); Pierce v. Pierce, 132 So. 3d 553, 562 (Miss. 2014); Davis v. Davis, 284 P.3d 23, 27 (Ariz. Ct. App. 2012); Judkins v. Judkins, 441 S.E.2d 139, 140 (N.C. Ct. App. 1994); Seeley v. Seeley, 690 S.W.2d 626, 628 (Tex. Ct. App. 1985).
30. See, e.g., Flora v. Flora, 603 A.2d 723 (R.I. 1992) (holding that a servicemember’s participation as a defendant in a 1983 divorce action did not amount to implied or specific consent to the 1988 action that the former wife brought for division of his retired pay); Tucker v. Tucker, 226 Cal. App. 3d 1249, 1257 (Cal. Ct. App. 1991) (holding that a servicemember does not waive an objection to jurisdiction over military pension division when he filed a response and requested relief, including the division of community property).
31. This article focuses on military retired pay. In addition to the military pension, which is similar to a defined benefit plan, military personnel may also participate in the Thrift Savings Plan, and there are certain other benefits such as medical care and commissary privileges.
32. 10 U.S.C. § 1407 (2018).
33. Servicemembers with a DIEMS prior to that date use the “Final Pay” retirement formula. Another system is the REDUX formula, for servicemembers who elected the CSB or Career Status Bonus. Since most servicemembers getting divorced will fall under the High-3 category, this text focuses on the High-3 pay.
34. 10 U.S.C. § 1401(b) (2018).
35. Id. § 12732.
36. Nonregular retired pay under chapter 1223 of Title 10, U.S. Code, is treated differently. Id. § 12733. As with the active duty calculation, this does not include servicemembers who entered service before September 8, 1980.
37. Go to https://soldierforlife.army.mil/retirement/reservecomponent for further information, or visit https://soldierforlife.army.mil/retirement/, which is the home page for the Army Retirement Services Office (RSO), and scroll down to the icons for “Post Retirement,” “U.S. Army Reserve,” and “U.S. Army National Guard.”
38. Florida, Kentucky, Oklahoma, Tennessee, and Texas.
39. 10 U.S.C. § 1408 (a)(4)(B) (2018).
40. “Military Pension Division: Guidance for Lawyers” is a Silent Partner info-letter that explains what considerations are essential in preparing an order for military pension division that will be accepted by the retired pay center, along with numerous tips, options, and comments for the practitioner. Mark Sullivan, Military Pension Division: Guidance for Lawyers, Silent Partner, https://www.nclamp.gov (last visited Sept. 18, 2019).
41. They are, however, considered by most states as sources of income in determining family support, and both CRSC and MDRP are subject to income-withholding or garnishment for support payments. VA disability compensation may be garnished when the recipient is a retiree who has waived military retired pay to receive these payments. 42 U.S.C. § 659 (2018).
42. The term “disposable retired pay” has been defined to exclude military retirement pay waived in order to receive veterans’ disability benefits. See Mansell v. Mansell, 490 U.S. 581, 589 (1989); USFSPA, supra note 27.
43. USFSPA, 10 U.S.C. § 1408(a)(4)(A)(iii) (2018).
44. Section 1413a(g) states that “[p]ayments under this section are not retired pay.” Id. § 1413a(g). Thus, payments are not divisible as property. They are, however, subject to garnishment for family support. For a more detailed discussion, see Mark Sullivan, Military Pension Division: The “Evil” Twins”-CRDP and CRCS, Silent Partner, https://www.nclamp.gov/media/425647/s-pension.pdf. (last visited Sept. 20, 2019).
45. Dep’t of Def., 7B Fin. Mgmt. Reg. § 290401.A (Former Spouse Payments from Retired Pay) (1999), https://comptroller.defense.gov/Portals/45/documents/fmr/archive/07barch/07b_29.pdf [hereinafter DoDFMR].
46. USFSPA, 10 U.S.C. § 1408(d)(2); see also DoDFMR, supra note 45, § 290604.B.
47. See Deason v. Deason, 611 N.W.2d 369 (Minn. App. 2000), and cases cited therein.
48. DoDFRMR, supra note 45, § 290607.C.
49. Based upon an O-3 with over twelve years of service according to the pay tables for 2019. For pay tables, see Military Pay Tables & Information, Def. Fin. & Accounting Serv. (last updated Aug. 12, 2019), https://www.dfas.mil/militarymembers/payentitlements/Pay-Tables.html.
50. Sullivan, Military Pension Division: Guidance for Lawyers,supra note 40.
51. National Defense Authorization Act for the Fiscal Year 2017, Pub. L. No. 110-181, 122 Stat. 3 (2017); USFSPA, 10 U.S.C. § 1408(a)(4)(B).
52. DoDFRMR, supra note 45, at 2908.
53. For the rules for collecting alimony, child support, or both from an individual’s military retired pay, see 42 U.S.C. § 659 (2017); 5 C.F.R. pt. 581 (1998). As noted in the accompanying text, the money from which family support may be withheld is termed “remuneration for employment.” This includes military retired pay and even military disability retired pay. Id. § 581.103(b)(13); see also DoDFRMR, supra note 45, § 270101.A. It is advisable to mention the preceding citations to the DoDFMR, the Code of Federal Regulations, and the U.S. Code in the permanent alimony order so as to avoid confusion by those who are processing the order. The definition of “disposable earnings,” the pot of retired pay from which a garnishment of support may be paid, includes gross pay less amounts withheld for debts to the federal government; deductions required by law, such as SBP premiums and the VA waiver; and regular federal income tax withholding. Id. § 270203.
54. 10 U.S.C. § 1408(d)(2) (2018).
55. The DFAS application form for former spouse payments from disposable military retired pay is DD Form 2293. How to Apply, Def. Fin. & Accounting Serv. (last updated Oct. 11, 2018), https://www.dfas.mil/garnishment/usfspa/apply.html.
56. For a more detailed discussion of the strategies of the servicemember and the spouse, see Sullivan, The Military Divorce Handbook, supra note 20, at ch. 8; Mark Sullivan, Military Pension Division: The Servicemember’s Strategy, Silent Partner, https://www.nclamp.gov (last visited Sept. 18, 2019); Mark Sullivan, Military Pension Division: The Spouse’s Strategy, Silent Partner, https://www.nclamp.gov (last visited Sept. 18, 2019).
57. For members of the National Guard or Reserves, any order that contains a fraction with an unknown denominator must be expressed in terms of retirement points, not months or years. DoDFRMR, supra note 45, § 290608.
58. 10 U.S.C. § 1407 (2018).
59. This assumes the servicemember entered military service on or after September 8, 1980.
60. Military Pay Tables & Information, supra note 49.
61. The Survivor Benefit Plan is also at risk. For greater detail, see Mark E. Sullivan, Military Survivor Benefit Plan—Practical Tips for the Practitioner, Nat’l Council of Juvenile & Fam. Ct. Judges, https://www.ncjfcj.org/sites/default/files/SBPPractical%20Tips%20for%20the%20Practitioner.pdf; Sullivan, The Military Divorce Handbook, supra note 20.
62. See Karen MacIntyre, Division of U.S. Army Reserve and National Guard Pay Upon Divorce, 102 Mil. L. Rev. 23 (1983).
63. 10 U.S.C. § 12731(f)(1) (2018). Certain RC members can begin to receive retired pay as early as age fifty, depending on additional time spent on active duty after January 28, 2008. Generally speaking, RC members can drop three months from their mandatory retirement age of sixty, at which they begin to draw retired pay, for each period of ninety days served in a fiscal year on active duty in support of certain duties, including contingency operations, or a national emergency declared by the president or supported by federal funds. See Dep’t of Def., Instruction 1215.06, Uniform Reserve, Training, and Retirement Categories for the Reserve Components (2014).
65. 10 U.S.C. § 1452(a)(1)(A)(iii)–(iv) (2018); see also TJAGSA Practice Note, Survivor Benefits: Congress Changes the Survivor Benefit Program, Army Law., Feb. 1990, at 75.
66. The rules for beneficiaries are set out at Chapter 44 of DoDFMR. DoDFRMR, supra note 45.
67. Sullivan, supra note 6.