Changes in Divorce Law

Recent Federal Actions Impact Military Service Members

Federal law may not be the first place family practice attorneys think to look for changes that impact their state practice but if your client is a member of the U.S. military or the spouse of a military member, then you need to know about two recent developments.

Buried in the National Defense Authorization Act of 2017 (NDAA 17) signed on Dec. 23, 2016, is section 641. This provision changed the definition of “disposable retired pay” (DRP) under the Uniform Services Former Spouses’ Protection Act (USFSPA)[1] for service members who have not yet retired at the date of divorce. The result is that the spouse’s marital portion of the service member’s (SM) future military retirement is fixed at the SM’s rank and years of service at the time of divorce. The spouse is not entitled to any share of the SM’s retirement accrued after the date of divorce.[2]

The second development is the United States Supreme Court ruling in Howell v. Howell issued on May 15, 2017.[3]

This case also involves the USFSPA and the section relating to DRP, as it relates to disability pay and how it impacts the spouse’s share. Because most family law attorneys don’t routinely represent military clients, some background information will help put these developments in context.

Background

Military retirement is unlike standard civilian retirement in several respects. Service members do not “vest” in their retirement as civilians do. SMs must serve 20 years of active federal service if the member is on active duty, or serve 20 “good” years (“qualifying years” or “creditable years”) of service if the member is in the National Guard or Reserve (this includes those serving full time in the Guard or Reserve, known as Active Guard and Reserve, AGR). If a service member has less than 20 years, he or she may only draw retirement pay under limited circumstances such as a medical retirement or an authorized reduction in the total number of those in a specific service, rank, or military occupation where the Department of Defense has declared an “over strength.” Unless the SM falls under one of these exceptions or some other unique authorized agreement, there is no payment for time served less than 20 years, not even if the SM reaches his or her “mandatory removal date” under law and lacks at least 18 qualifying years.[4]

Once a member reaches 20 years, the human resource command for the member’s specific service (Army, Navy, Marines, Air Force, Coast Guard) will send the member formal notice that he or she has reached 20 qualifying years of service, commonly called a “20-year letter.” Usually sent within 90 days after the member’s anniversary date, once the member has this letter, he or she can submit a written request to retire through the chain of command at any time after the date of the letter. However, there is no law that says SMs must submit a retirement packet and draw military retirement. They may choose not to draw retirement; the decision is solely the SM’s.

SMs may also leave the service before or after reaching 20 years. Enlisted members may elect to leave service at the end of their current service contact (ETS or expiration of term of service); officers and warrant or petty officers may resign their commission. Many choose to stay in the service until further promotion is unlikely, they have reached the maximum number of years allowed at that rank (“maximum time in grade”), or they reach their mandatory removal date (MRD). The MRD may be the maximum time in grade or it may be the end of the month when the SM turns 60. The longer the SM stays in the service, the better the chances for promotion and, with more duty, the greater the pay at retirement.

Another factor is that members who qualify for disability pay through the Veterans’ Administration (or who qualify for disability pay or an increase in disability pay after retirement) may receive reduced retirement pay depending on how much disability pay they receive from the VA. Regulations require an offset from retired pay for disability pay received. Because retirement pay is taxable income while disability pay is not, choosing to waive some or all retirement pay may make valid financial sense. This is the SM’s choice and courts cannot force a decision that favors the spouse. (Read more about this second development, the United States Supreme Court’s decision in Howell v. Howell, later in this article.)

As for when the checks start coming, active duty (AD) and AGR members can begin receiving their checks at their retirement. National Guard and Reserve members, even if part of their service was on active duty, currently do not begin drawing retirement pay until after their 60th birthday.[5] Spouses are not entitled to draw pay before the SM’s retirement packet is approved and the SM begins receiving retiree pay.

Survivor Benefit Plan and the 10/10 Rule

Before we look at how to calculate a spouse’s portion under the revised law, let’s briefly discuss two items that come up in almost every military divorce — the “10/10 rule” and the “survivor benefit plan.” The “10/10 rule” simply refers to who pays the former spouse when retirement checks start coming. If the parties have been married for 10 years or more and the SM served at least 10 creditable years of military service during the marriage, then the spouse’s check can come directly from Defense Finance and Accounting Service (DFAS) each month. If there is no overlap of 10 or more years of service with 10 or more years of marriage, the SM pays the spouse directly. That is all the “10/10 rule” means. Spouses are still entitled to a portion of the SM’s retirement when the marriage lasts less than 10 years but the checks come from the SM, not DFAS.

The Survivor Benefit Plan (SBP) is a government-sponsored annuity that the SM can elect to purchase. There are two windows of opportunity to elect the option. The first is when the SM receives her 20-year letter. The second is when the SM submits his retirement packet. The SM cannot elect participation until those windows, which may leave a spouse with no payments should the SM die before she or he can elect to participate in the plan.

There are many pros and cons to the SBP itself and as many experts have noted, there are other options available that can provide more coverage for less money. The USFSPA specifies that the spouse is entitled to SBP coverage but the spouse can negotiate another option or decline the coverage. There are differences too between the SBP for active duty members and for Guard and Reserve.[6] Be sure to consult at least two different sources before finalizing any SBP language in the marital dissolution agreement — even military post or base benefit offices get it wrong at times. Still unanswered is the question of whether future SBP calculations will be based on the SM’s total retired pay (as it was until Jan. 1, 2017) or on the SM’s retired pay at the rank and years of service as of the date of divorce. Check DFAS’s website[7] for updates.

Collecting Documents, Asking Questions

To satisfy DFAS requirements under the newly revised law, attorneys must ask key questions, collect copies of several documents, and do some calculations. While you will not necessarily have to provide everything to DFAS, you do need to make sure you have all available information and numbers before anything goes to DFAS. Keep in mind that the SM may not retire for some years after the divorce and your documentation may be the one thing that gets the spouse prompt payment when DFAS starts issuing checks. Attention to detail now can save headaches and additional work later.

The spouse’s share is based on two numbers. The first number is the “marital fraction.” The second number is the SM’s disposable retired pay. Attorneys must provide information from the SM’s records for both numbers so that DFAS can calculate the final figures when the SM retires. Before you get out the calculator, you will need some documents and the answers to several questions.

Start by obtaining copies of all personnel documents that show the years of service and the dates the SM was promoted, and to what rank (and reductions, if any). If the SM has any Reserve or Guard time, you need a printout of all the member’s points. In the Army, for example, this comes in two forms. One is a year-by-year summary of the points earned for each year of service. The second is a detailed points page (usually two or more pages) showing the specific dates of duty, the type of duty such as “inactive duty for training” or another category, and the points earned. These pages may go back to the beginning of the member’s service, or there may be gaps if the member was on active duty or took a break from service. Be sure to get both types of printouts.

Also get copies of discharge documents such as the DD-214, enlistment and re-enlistment contracts for enlisted soldiers, the 20-year letter if the SM has that much service, and any transfer documents if the SM changed services, such as moving from the Navy to the Air Force or Coast Guard. Currently serving members can get copies of everything from their unit personnel office or the personnel center at their higher command. Separated members need to contact their service’s human resource command to request hard copies of all documents.

Second, ask whether the SM has reached 20 good years of service. If not, does the SM plan to stay in? Can the SM stay in — has he or she reached maximum time in grade or the mandatory removal date? If the service is reducing numbers, does the SM qualify for early retirement or a transfer to another service or to the Guard or Reserve? If the SM has 18 or more years, has the member applied for sanctuary (see note 3)? Sanctuary is not automatic. The member must work with the personnel section to complete any necessary paperwork.
If the SM has reached 20 good years of service, either on active duty, in the Guard/Reserve, or by a combination of the two, ask how much longer the SM plans to stay on duty. This is important particularly if the SM is active duty since she can begin drawing retirement pay when she leaves the service while Guard/Reserve members must wait until age 60 unless they qualify for earlier payments.

Also, if the SM has already received a 20-year letter, did he or she elect Survivor Benefit Plan coverage, and if yes, is the spouse the beneficiary? There are only two windows of opportunity to elect SBP coverage — at the 20-year letter mark and when completing the paperwork to begin drawing retired pay. You will need to include appropriate language in the marital dissolution agreement depending on the answers you get to these questions. Changing the beneficiary is hard to do and requires the spouse’s agreement and signature on paperwork.

Third, download pay charts for the years the SM earned the highest pay before the divorce. This is not the amount of money the SM earned each year but the pay rate authorized for the rank and years of service, as approved by Congress each year. These are available through DFAS’s website going back to 1949, and you will need them to calculate the SM’s “high-3” or “high-36” pay, which is the highest pay the SM received for 3 years (or 36 months) before the divorce. Typically, this is the 3 years right before the divorce but not always. Look at when the SM actually performed duty, and if he or she has any gaps in service or a reduction in pay for some reason.

How to Calculate the Spouse’s Share

The spouse’s share is retirement pay multiplied by what is commonly called “the marital fraction.” You will rarely, if ever, have a fixed dollar figure at the end of your calculations, because of factors such as cost-of-living increases (DFAS factors these in), offsets for VA disability payments, and offsets for other factors spelled out in the USFSPA[8] that affect the “disposable retired pay” (DRP).

DFAS does require that the Military Pension Division Order (MPDO) provide several essential pieces of information and gives a sample MPDO plus information in a “notice of statutory change” on the DFAS website. If the SM entered service after Sept. 1, 1980, the order must have the following:[9]

  1. The spouse’s type of award (a fixed amount, a percentage, a formula, or a hypothetical award).
  2. The actual dollar figure of the SM’s “high-3” at the time of the divorce.
  3. Whether the SM has already retired or is still serving and whether the service is active duty or Guard/Reserve. For Guard/Reserve, you must have the number of points accrued. For retirees or active duty, you must show the number of months of creditable service.

The Spousal Share
The simplest way to get a handle on this is to draw a graph or chart (see below). The vertical side is the ranks progressing from lowest to highest. The horizontal side is the dates beginning with the date of marriage or the date of entry into service, whichever comes first, and progressing through the anticipated date of retirement. Plot the dates the SM was promoted and note the date of marriage and the date of divorce, either estimated or actual. As an example, we’ll use a Sergeant First Class/E-7 on active duty in the Army, SFC Ann Collins.[10]

SFC Collins has been in the Army since she joined at age 20. She finished high school, attended a local community college and earned her associate’s degree in computer technology. While there, she stopped by a booth at a job fair and decided to enlist upon graduation in 1994. She met and later married her husband when she was 25 (1999). They were both in the Army but her husband decided not to re-enlist when his second tour was up. He has worked in the civilian sector ever since. He completed nine years of service before he got out. They have two teenage children. At the time of the divorce, SFC Collins had been in the Army for 22 years, fourmonths. The chart shows her promotions and the dates of marriage (>) and divorce (<).

[chart]

The time military service and marriage overlapped is highlighted in green.[11] Because SFC Collins is on active duty, DFAS requires us to use months to total the time in service and the overlap with her marriage. Using her information, we find that she has 279 months total service, of which 222 months were served while she was married. This is 80 percent (222 divided by 279 = 79.6 percent rounded up to 80 percent) of the total time she has at the time of divorce. Mr. Collins is entitled to half of this amount or 40 percent of SFC Collins’ retired pay. The change in the law comes here: Mr. Collins is only entitled to 40 percent of the retired pay SFC Collins would get for an E-7 with over 22 years of service. He is not entitled to any portion of her retirement that accrues from time served or promotions received after the date of divorce.

Where previously many divorce agreements split the entire military pension, Section 641 of NDAA 17 cuts it off, limiting the spouse’s share to the time covered by the marriage — effectively, only the portion of military service occurring during the marriage is “marital property.” All other service time belongs exclusively to the SM. DFAS has already made clear that it will not honor court orders that run counter to the law, including mutual agreements between spouses, saying it will return as unprocessed orders that don’t comply with the new law. If the SM hasn’t retired yet, or even reached 20 years, the limits are the same. In effect, the USFSPA freezes the spousal benefit and creates a hypothetical retirement date as of the date of divorce. This is why complete documentation is essential on the front end.

While DFAS calculates active duty time in months, it uses points for National Guard and Reserve members. To illustrate, let’s say that instead of getting out, Mr. Collins transferred from active duty to the Army Reserve the month before he and SFC Collins were married and she wants her share of his military retirement. He had nine years and two months of active service for a total of 3,344 points earned (one point per day). He then served 14 more years in the Reserve but only 12 were “good” years because he missed annual training and some monthly duty during his wife’s two deployments.[12] He did have some additional points for required military schools, and he retired as an E-7 with 21 years, two months of service for a total of 4,410 points. His wife’s share is half of 1,066 points earned during the marriage divided by 4,410 total points or half of 24 percent. SFC Collins is thus entitled to 12 percent of Mr. Collins’ disposable retired pay. In this case, Mr. Collins has already left the service so his rank and years are set and are automatically fixed at the time of the divorce (unless he were recalled to service from retirement, but that is outside the scope of this article). Remember that Mr. Collins will not begin receiving his retired pay until he reaches age 60.

Also remember that if the service member had no service prior to the marriage — say, one spouse joins the National Guard after the parties were married — the entire amount could be marital. Having all documentation and plotting the key dates and ranks on a graph serves as an added check to ensure all months and points are fairly counted and allocated.

A Percentage of What?
The second part of the equation is the amount of disposable retired pay that the SM will receive (or is already receiving). Active duty retirees (and Active Guard and Reserve or AGR members) begin receiving retired pay once they submit a packet and leave the service. Guard and Reserve members do not begin receiving retired pay until they reach age 60 unless they are entitled to earlier pay because of combat zone deployments.

DFAS calculates retired pay based on the SM’s “high-3” (also referred to as “high-36”): “If you entered active or reserve military service after Sept. 7, 1980, your retired pay base is the average of the highest 36 months of basic pay.”[13] The attorney is responsible for providing this number in the Military Pension Division Order. To calculate the “high-3,” look at the base pay charts for the 36 months prior to the date (or estimated date) of divorce. Use the rank and years of service to find the monthly pay.

Let’s say that your client is a Major with 14 years of service. (For this part, it doesn’t matter whether the SM is active duty or Guard/Reserve.) He was promoted one year ago on his service anniversary. It is September 2017, so you will need to refer to the pay charts for 2017, 2016, 2015 and 2014. Working back from September 2017, you will have:

  • nine months in 2017 for a Major with 14 plus years,
  • three months in 2016 for a Major with 14 plus years,
  • nine months in 2016 for a Captain with 12 plus years (pay increases every 2 years),
  • 12 months in 2015 for a Captain with 12 plus years,
  • three months in 2014 for a Captain with 12 plus years.

Add the 36 months of pay and divide by 36. This is the “high-3” number you must provide to DFAS in the MPDO. Note that this is not the monthly retired pay that your client will get. DFAS multiplies this figure, called the “retired base pay,” by a service multiplier which is based on the number of years served for active duty members and the total number of points earned converted to years (one year is 360 points) for Guard and Reserve members. This yields the “gross retired pay.”

DFAS then subtracts any amounts stipulated by USFSPA. These are amounts 1) the SM owes the United States for previous overpayments, 2) forfeited by court-martial or waived under title 5 or title 38, 3) offsetting or related to the member’s disability, and 4) deducted to pay for the Survivor Benefit Plan coverage. After these items, if any, are subtracted, the result is the SM’s “disposable retired pay” (DRP).

Once DFAS has the DRP number, it then will use the marital fraction you previously calculated and the rank and years of service at the time of divorce to determine what the spouse’s exact payment should be. If the SM has not already retired and begun to draw retired pay, DFAS will adjust the spouse’s pay to include any cost-of-living increases in the intervening years. For service members who do not qualify for DFAS spousal payments under the 10/10 rule, the SM can contact DFAS or the nearest active duty payroll office for help determining the spouse’s portion.

Military Pension Division Order

DFAS has provided a sample MPDO on its website. This is the minimum information that DFAS needs to process spousal payments. To protect both the SM and the spouse, consider including a statement about the number of years the parties were married and the number of years of military service that overlap the marriage. Also include a statement that specifies the SM’s current rank and years of service, along with the date the SM entered military service. Be sure that the order portion clearly states the three elements listed earlier (type of award, high-3, active duty or Guard/Reserve with the retired status and number of months or points for the spouse and total months/points).

Cautions and Additional Resources

DFAS is still updating its regulations to implement the new law, and there are unanswered procedural questions still to be addressed. Always check its website to see the latest information, regulations and sample documents. It helps to consult with an attorney who routinely handles military divorces to be sure you are using the most current information. Former Judge Advocate General members are also a potentially useful resource. Mark Anderson, author of the American Bar Association’s handbook on military divorces, has posted several articles at the North Carolina bar’s resource page (www.nclamp.gov); check the Silent Partner tab for articles on the “frozen benefit” rule as well as other topics relating to military divorces regardless of location. You can also get an estimate of the SM’s potential retired pay using one of the military retirement calculators available online. The Department of Defense has one at http://militarypay.defense.gov/Calculators.aspx. As DFAS states, however, this is an estimate. “The formulas used to calculate retired pay are complex and differ depending on individual circumstances.”[14]

Part 2: Howell v. Howell

The second development is the Howell case, and it ties neatly into the information just covered. The court held that a state court “may not order a veteran to indemnify a divorced spouse for the loss in the divorced spouse’s portion of the veteran’s retirement pay caused by the veteran’s waiver of retirement pay to receive service-related disability benefits … federal law completely pre-empts the States from treating waived military retirement pay as divisible community property.”[15]

The case came to the Supreme Court on appeal from a decision by the Arizona Supreme Court. John Howell served in the United States Air Force. When he and his wife, Sandra, divorced in 1991, the property division gave Sandra 50 percent of John’s military retirement whenever it began. John retired in 1992 and Sandra began receiving her portion of John’s retired pay. The Department of Veterans Affairs later awarded John 20 percent disability, about 13 years after the divorce. John waived $250 per month of his retirement pay to receive disability. This reduced Sandra’s pay by $125 each month.

Sandra asked the state court to enforce the original property provision, and the court agreed, saying that Sandra had “a ‘vested’ interest in the prewaiver amount,” and it ordered John to “ensure that Sandra ‘receive her full 50 percent of the military retirement without regard for the disability.’”[16] The Arizona Supreme Court agreed, saying that the lower court wasn’t dividing waived pay or telling John to rescind his waiver; it was just directing John to reimburse Sandra for the loss of $125 each month.[17]

Because of a difference in outcomes among state courts, the Supreme Court granted certiorari. In its opinion, the Court reaffirmed its decision in Mansell v. Mansell.[18] The key points of Howell are that the USFSPA exempted waived pay (no matter when it is waived) — not all retired pay is marital property, and that state courts “cannot vest that which (under governing federal law) they lack the authority to give.”[19] Reimbursement and indemnification are just two more ways of dividing waived income, and thus orders directing a SM to make up the difference are pre-empted.

As an example, let’s say that SSG Jones retired after 24 years of active duty at age 45. He deployed three times during his service, once to Iraq and twice to Afghanistan. He was diagnosed with several medical problems, all service-connected, and the VA gave him a disability rating of 30 percent. His disposable retired pay from the military is $2,000 per month, of which Mrs. Jones receives half or $1,000 after the divorce. Five years later, the VA increases SSG Jones’s disability rating to 45 percent due to worsening problems and a new diagnosis. He waives additional retirement pay to receive an increased disability allotment. This results in a $400 drop in Mrs. Jones’s payment. She isn’t happy and takes SSG Jones back to court to get her full payment restored. Under Howell, the state court cannot order SSG Jones to offset, compensate or reimburse Mrs. Jones for the “lost” amount.[20]

Conclusion

As the first part of this article makes clear, military retirement is not a guaranteed source of income for the spouse. Any number of things can happen to affect whether the SM actually receives — or continues receiving — retirement pay including events outside the scope of this article. The Supreme Court notes in Howell that state courts “most likely [do not have] the legal power to extinguish” future contingencies that might decrease the value of a spouse’s retirement portion, any more than they can protect against the devaluation of any other type of property.[21] There are other ways to provide for a former spouse, but Congress and the Supreme Court have revised the definition of “disposable retired pay” and clarified what is pre-empted under federal law. Family law attorneys and judges must keep these changes in mind going forward and proceed carefully.

Notes

  1. 10 U.S.C. §1408.
  2. Mark Anderson (COL, U.S. Army (ret)) the author of The Military Divorce Handbook, published by the American Bar Association, calls this provision “the Frozen Benefit Rule.”
  3. 137 S. Ct. 707 (U.S. 2017).
  4. Service members who have 18 or more years of qualifying service may apply for “sanctuary,” a protection under federal law that allows these members to stay in two to three years longer in order to reach 20 good years of service and thus qualify for retirement.
  5. There is a credit for SMs who have served in a combat zone so that they may be eligible to start drawing pay a year or more before age 60. Check with the service’s human resources command to see if this is the case with any SM who has deployed to a combat zone.
  6. Survivor Benefit Plans are confusing, even to those who are supposed to be experts. The topic itself would take a full article to explain. If you have questions, consult several of the websites such as www.military.com for details and also contact one or more personnel center representatives to get answers to your questions.
  7. www.dfas.mil.
  8. 10 U.S.C. 1408(a)(4)(A).
  9. If you have a service member who entered service before Sept. 1, 1980, the second requirement is the member’s pay grade at the time of the divorce. The other two requirements are the same.
  10. All examples are fictitious and not based on any actual person.
  11. Many thanks to COL Brian Mork (U.S. Air Force Reserve) for his spirited emails and articles on the nuances of this change as well as the concept of graphing the member’s service. His articles are available on Facebook and his website, www.intrepidcreativity.com. The site is primarily devoted to aerospace engineering but search for his page on articles, military retirement and NDAA 17. My graph is not to scale because of margin constraints. Obviously the “marriage box” would be much larger if drawn to scale in relation to the years married.
  12. Guard and Reserve members receive 15 membership points each year. They also receive one point for each day they are on active duty, active duty for training, and at a military school or training program. Most will do 13 to 14 days of “annual training” each year (sometimes more, sometimes less, and not always in one block of duty) at one point per day. For weekend training, usually called “drill” or “battle assembly,” members get two points per day or one point for each four-hour block of duty/training. Congress authorized this some years ago as an incentive to get more people to enlist or join. While there have been discussions about ending the two-point incentive, it remains in effect until Congress changes it.
  13. www.dfas.mil at “Estimate Your Retirement Pay” page.
  14. Ibid.
  15. Howell v. Howell, 137 S. Ct. 707 (U.S. 2017) syllabus.
  16. Howell at 712.
  17. Ibid.
  18. 490 U.S. 581 (1989).
  19. Howell at 714.
  20. The numbers used here are not pulled from actual pay charts and are only used as an example.
  21. Ibid.

B. J. (BETH) STRICKLAND retired from the U.S. Army in 2015 with the rank of lieutenant colonel. She has assisted soldiers and their spouses with legal matters for more than 20 years. She is also a Registered Nurse with a masters in nursing, and teaches online health care law courses as an adjunct assistant professor for Texas Tech University Health Sciences Center, School of Nursing. She can be reached at bj_strickland@yahoo.com.

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