FrozenBeneFitSruleFordividingmilitarYretiredPaYinFamilYlaw
Military & Veterans Affairs Committee Chairs : RobertBarton — Rumberger / Kirk & SteveCollins — LawOfficeofRoryWeiner
the2017national defenseauthorization actimposedasingle methodfordividing militaryretiredpayon allofthestates .
The somewhat underappreciated Jimmy Buffett song 1 notwithstanding , sometimes the process of figuring out the math for dividing an active duty servicemember ’ s future military retired pay for a marital settlement agreement or at trial can be , well , divisive . Until recently , dividing military retired pay was a matter of state law . That changed with the 2017 National Defense Authorization Act which imposed a single method for dividing military retired pay on all of the states .
Technically , “[ m ] ilitary retired pay is not a pension . Rather , it is a statutory entitlement computed at the time the member retires and it is based on the member ’ s rank and total years of service at the time of retirement , or member ’ s high-3 and total years of service .” 2 Depending on its laws , a state court could apply a coverture formula to determine the spouse ’ s share in the present , or even future , retired pay .
For example , one method divides the length of the marriage during service ( M ) by the total length of the member ’ s service ( S )
to find the marital share of the service . Then , evenly dividing the resulting quotient reveals the spouse ’ s portion of the marital share ( W ). The formula could look like this : ( M ÷ S ) ÷ 2 = W . 3 Since the member was still serving , their total service would not yet be known . The order could include the formula and direct that , when the missing variable is known , the variable will be inserted into the formula and the spouse ’ s share determined .
Now , Congress requires the date of the order dividing the retired pay 4 be the determinant of the spousal share . 5 That is , the marital portion of what the retired pay would be if the member retired at the time of the order . In particular , this eliminates any benefit to the spouse of the member ’ s pay increases after the divorce from longevity and promotions . From a practitioner ’ s perspective , it increases the complexity in defining the retired pay to be divided , by requiring the parties to agree , or for the Court to determine at trial , what the member ’ s retired pay would have been on the date of the order . 6 Doing this is somewhat complicated , but DFAS 7 provides detailed guidance in its regulation . 8 Using the member ’ s date of promotion to their pay grade on the date of the order , their total years of service to that point , and using pay tables available from DFAS will yield the member ’ s “ hypothetical retired pay base .”
This amount is multiplied by applicable “ retired pay multiplier ” 9 to find the hypothetical retired pay . This hypothetical dollar amount is reported to DFAS and ( with COLA increases between the date of the order and the date of retirement ) 10 is ultimately compared to the member ’ s actual future retired pay so the spouse ’ s share of the actual future retirement amount is determined . n
1
Jimmy Buffett , Math Suks , in Beach House on the Moon ( Island Rec ./ Margaritaville Rec . 1999 ) ( CD ).
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the mvac veterans Legal assistance registry includes attorneys who are licensed to practice in Florida and who may be available to assist veterans and active-duty personnel with various legal matters . visit the registry at : hillsbar . com / page / mvacLegalregistry .
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