Division of Military Retirement

Since 1984, when the United States Congress passed the Uniformed Services Former Spouses’ Protection Act (USFSPA), States have been authorized to consider military retired pay as marital property and divide it during a divorce. Military members and their families often misunderstand exactly what can be divided and how much a former spouse may be entitled to. Some think a spouse is automatically entitled to fifty percent of their retired pay. Others believe that if the marriage didn’t last at least 10 years, the spouse is entitled to nothing. Neither of these beliefs is necessarily true.

Under USFSPA, there are limits to what DFAS is required to do regardless of what a State Court orders. Although theoretically a State could award a former spouse more than fifty percent of the military member’s military retirement, DFAS will not pay out more than fifty percent of the military member’s “disposable” retired pay. Disposable retired pay is the gross pay less SBP, reductions for VA offsets and any debt owed by the member to the government that is being deducted from his or her retired pay.

DFAS will only pay a former spouse directly if at the time of the divorce, the spouse had been married to the military member for at least ten years overlapping military service. If the parties had been married 12 years but the military member only served for nine years during the marriage, DFAS would not pay the spouse her share of the military retired pay. That doesn’t mean it isn’t owed, it just means the military member would have to pay the former spouse directly. This can have adverse tax implications for the former military member and careful drafting of agreements is necessary. Experienced, former JAG attorneys like Ray Chamberland are adept at properly preparing necessary documents.

Although Federal law controls what DFAS will do when they receive a court order dividing military retirement, State law determines whether the retired pay will be divided and how much the former spouse will receive. Unless there is an agreement providing for a different division, courts in Colorado typically award what they term a “marital share” of the military retired pay. The rationale for awarding a share to a former spouse is that spouse normally contributed to the military member’s career. Some ways they did this might be by raising the children; maintaining a home; relocating multiple times which prevented them from having an career of their own; and becoming members of officer’s or enlisted spouses’ clubs which advanced the military member’s career. If the member retired as a senior officer or senior NCO, their spouses often contributed even more by caring for the unit spouse’s and their issues.

The formula most often used in the past to determine the marital share was to first determine the total number of month of marriage overlapping military service at the date of the divorce and then to divide that by the total number of months of military service. That produces the “marital fraction” or the percentage of the military member’s retired pay that was earned during the marriage. The Court will then award one-half of this marital fraction to each party. For example, if the Parties were married on the day the military member entered the service and divorced twenty years later on the day the member retired, the fraction would be easy. They would have been married for 240 months overlapping military service. The member would have served on active duty for 240 months. You would divide 240 by 240 and get a marital fraction of 1. You’d divide 1 in half and each party would get ½ of the military retirement. This may sound like an unlikely scenario, but often the parties are married before the military member entered the service, and they aren’t divorced until after the member retired. In this scenario, regardless of how long the military member served, the spouses percentage of the military retirement would be 50 percent because they were married for the entirety of the member’s military service. The fraction can range from the maximum of fifty percent down to such a small amount in short term marriages or marriages encompassing very little military service that there is little value in dividing the retirement.

Beginning in 2017, the law dividing military retirement changed with the implementation of the Frozen Benefit Rule. Prior to that date, the retired pay was divided as of the date the military member retired even if that was 10 years or more after the divorce. The spouses fraction of the retirement continued to decrease, but if the military member continued to gain rank the amount to be divided increased. One example would be a divorce occurring at the 10 year point of the military member’s career when the Parties had been married exactly 10 years. Wife’s share would be 50% at that point as they were married 10 years overlapping 10 years of military service. If the military member was a Captain at the time of divorce, it is likely the member would increase in rank up until retirement. If the member retired at 20 years as a Colonel, the former spouse’s share would only be 25% because the 10 years of marriage overlapping military service would now be divided by 20 years leaving fraction of 50. Former spouse would receive 1/2 of that or 25%. This formula would continue to be used if the military member retired before the divorce.

Since 2017, the rules changed for divorces while the military member is still on active duty. Under the Frozen Benefit rule, the spouse’s share of disposable retired pay is “frozen” as of the date of the divorce. If our Captain from the previous example had 10 years of service overlapping 10 years of marriage, the former spouse would only be entitled to 50% of the pay the member would have received if he retired on the date of divorce. This would be true even if the military member did not retire until 20 years and increased in rank to the grade of Colonel.

Regardless of which situation, you may be facing, you will want an attorney helping you who is very experienced with DFAS language requirements or you face the risk of having DFAS reject the Court Order and refuse to divide the retirement. With his 25 years of military service and extensive knowledge of DFAS requirements, attorney Ray Chamberland can help you ensure the language in documents sent to DFAS will not be rejected.

If DFAS has rejected your former spouse application for a share of military retirement, Ray Chamberland can often prepare a new Order for the judge to sign that corrects whatever was wrong with the previous order dividing the retired pay. Contact Ray if you are facing this situation.

Military Reservist’s face additional challenges in dividing their retirement. If you’re a reservist facing a divorce, please contact Ray Chamberland. He can help with your unique situation as all of your percentages are based on retirement points, not months or years of service.