YOUR FURTHER QUESTION:
I must be driving you some kind of crazy. I have been having major prob. finding a lawyer. because no one it seems knows what to do or what to send and to whom to send it to. Hence the prob of filing all that needs to be filed. in what state do I send all this paperwork. where we got divorced or here in my home town?
FURTHER ANSWER:
No, you are not driving me crazy. What drives me crazy is the very complex systems and procedural obstacles, pitfalls and traps that the military establishment has managed to create in the continuing effort to make it as difficult as possible for an former wife to obtain a portion of a military pension. THAT’s what what drives me crazy.
As you already know...... If the divorce court has awarded you a portion of your former husband’s entitlement to receive military retired pay (limited by law only to “disposable retired pay”), you would then have the right to look to your ex-husband to send you a check each month for your court-awarded share.
HOWEVER, if the marriage was of 10 or more years’ duration AND at least 10 of the marital years coincided with (i.e., occurred at the same time as) the military, you would have the right of receive your court-awarded share of disposable retired pay directly from DFAS (thus eliminating the need to rely on ex-husband each month to send you the money). This is usually referred to as the “10-10 rule.”
BUT to get this done --- as you are now finding out --- you need to comply with a number of procedural requirements, rules and regulations that DFAS has established, including the use of certain “magic words,” judicial “findings of fact” and other items of information that must be contained within the legal document(s) submitted to DFAS.
Sometimes -- but not often --- the divorce judgment (which I by old habit still refer to as a divorce “decree”) contains within the four corners of the document all that DFAS requires. In such case, a court-certified copy of the decree can be submitted to DFAS, along with a form DD 2293, to trigger the process of direct payments from DFAS. More commonly, the divorce decree by itself is insufficient to meet all of the DFAS requirements. And in that case, what is needed (and what lawyers involved in the case usually prepare at the time of divorce or shortly thereafter) is a separate document usually referred to as a “Court Order for Division of Military Retired Pay.” This separate document --- often referred to as a “military QDRO” --- would then contain all of the data, magic words, etc., needed to comply with DFAS requirements.
In my own law practice, I ALWAYS use a Court Order for Division of Military Retired Pay (separate and apart from the divorce decree). And I think the military people at DFAS prefer it that way so that they don’t have to plow through 30+ pages of divorce decree provisons about property division, custody, child support, who gets the family dog, etc., etc., and can just get right to stuff needed for division of the military retired pay.
To be accepted by DFAS, a Court Order for Division of Military Retired Pay:
A. Must be “regular on its face.” This means that a court of competent jurisdiction issued the order and nothing on its face provides reasonable notice that it was issued without authority of law.
B. The court order must award former spouse alimony, child support, or a retired pay award.
C. If the order contains a retired pay award, then that award must be expressed as a fixed dollar amount or as a percentage. A retired pay award expressed as percentage will automatically receive a proportionate share of the member’s cost-of-living adjustments, while one expressed as a fixed amount will not.
D. The designated agent will construe all percentage awards (such as a percentage of gross retired pay) as a percentage of disposable retired pay, regardless of the language in the order.
E. If the former spouse and the member were divorced before the member became eligible to receive military retired pay, then the retired pay award may be expressed as a formula or hypothetical award in accordance with paragraphs 290607 and 290608.
F. For court orders issued prior to December 19, 2003, the court order must show that the member’s rights under the Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 U.S.C. Appendix §§ 501 et. seq.) were complied with. For court orders issued on or after December 19, 2003, the court order must show that the member’s rights under the Servicemembers Civil Relief Act (50 U.S.C. Appendix §§ 501 et. seq.) were complied with.
For a sample form of Court Order for Division of Military Retired Pay, take a look at pages 29-18 and 29-19 at the following website:
http://www.defenselink.mil/comptroller/fmr/07b/07b_29.pdf
From what you have said, it appears that a court-certified copy of the divorce decree was never submitted to DFAS. Or, if it was, it was rejected due to lack of all of the required information in the right form (thus resulting in DFAS telling you that you need what DFAS refers to as a “clarifying order,” meaning an amended divorce decree or some other court order (such as a “Court Order for Division of Military Retired Pay”) the fulfills the DFAS requirements.
The DFAS publication “DIVIDING MILITARY RETIRED PAY” details all of the procedural requirements that DFAS requires. Please review this publication:
http://www.dfas.mil/garnishment/retiredmilitary/speech8.pdf
The court order (be it the divorce decree, or the Court Order for Division of Military Retired Pay) comes from the court in which the divorce occurred. You obtain the needed court-certified copy by contact the Clerk of the Court in which the divorce occurred. (Since I do not know which court it was from which you obtained your divorce, I am unable to tell you the address and telephone number that you need in order to get this done. Suggest you might do a Google search on the Internet to obtain this information.) The clerk’s office will tell you what is needed, the fee for copying, and other information you need to submit to the court in order obtain the court-certified copies of the documents you need.
Then, once you have the appropriate court-certified documents, you send them to DFAS in Cleveland, Ohio. The full address is:
Defense Finance and Accounting Service - Cleveland
Attn: DFAS-GAL/CL
P.O. Box 998002
Cleveland, OHNNN-NN-NNNN
The court-certified documents will show the date on which the clerk of the court certified the copy as being a true and correct copy of the original document that is on file. This is known as the “certification date.” The document(s) you ten submit to DFAS must show a certification date that is within 90 days from the date on which the documents are submitted to DFAS.
The documents you submit to DFAS must be accompanied by DD Form 2293 (APPLICATION FOR FORMER SPOUSE PAYMENTS FROM RETIRED PAY). The Form and instructions can be downloaded from the following websites:
http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd2293.pdf
http://www.dfas.mil/militarypay/garnishment/dd2293.pdf
http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd2293.pdf
As previously advised, you need to review the information online at the following websites (as it is far too much and too detailed for me to repeat here):
“Getting Military Pension Division Orders Honored By DFAS”
http://www.abanet.org/family/military/silent/pension_division.pdf
“DFAS Guide to USFSPA”
http://www.dfas.mil/garnishment/retiredmilitary/speech8.pdf
So let me repeat some of what has already been said:
In order to apply for payments under USFSPA, a completed application form (DD Form 2293) signed by a former spouse together with a certified copy of the applicable court order certified by the clerk of court within 90 days immediately preceding its service on this Center should be served on DFAS by mailing the documents to:
Defense Finance and Accounting Service - Cleveland
Attn: DFAS-GAL/CL
P.O. Box 998002
Cleveland, OHNNN-NN-NNNN
The court order should contain sufficient information for DFAS to determine whether the required federal law jurisdictional and 10/10 requirements have been met, together with required data about the parties (names, birthdates, social security numbers, addresses, date and place of marriage, date and place of divorce, etc., etc., etc.).
If the requirements of USFSPA have been met, payments to a former spouse must begin no later than 90 days after the date of effective service of a complete application. If the member has not yet retired at the time the former spouse submits his or her application, payments must begin no later than 90 days after the date on which the member first becomes entitled to receive retired pay.
DFAS FAQs:
http://www.dfas.mil/garnishment/military/questionsandanswers.html
I cannot determine from the information you have provided whether your divorce decree would meet all of the DFAS requirements needed to implement direct pay to you from DFAS, or whether a supplemental or clarifying order (such as a Court Order for Division of Military Retired Pay) is needed. Consequently, the best I can tell you is to contact a lawyer in your locality (or in the locality in which the divorce was obtained) who is familiar with USFSPA procedures and requirements and have the lawyer review your divorce decree and, if necessary, prepare and process any supplemental or clarifying order (such as a Court Order for Division of Military Retired Pay) that may be needed in your case.
There are many lawyers in INDIANA who have the expertise in both family law and military law ready to help resolve your legal problems. Try the following:
http://www.marcus-lawfirm.com/jsp3544797.jsp
http://www.indybar.org/referral.cfm
http://www.lawyers.findlaw.com/lawyer/practicestate/Military-Law/Indiana
http://lawyers.justia.com/lawyers/military-law/indiana/indianapolis-carmel-in-metro
OK. Hope I’ve given you the info and direction you are seeking.
LDG