Military Law
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Answered in 11 hours by:
3/14/2010
Lawrence D. Gorin, Lawyer
Category: Military Law
Satisfied Customers: 1,544
Experience: Military & Family Law. 30+ years experience. USFSPA pension division expertise.
VerifiedANSWER:
There appears to be much confusion about what is going on. Not sure if I can straighten it out here but I will try.
First, given that you apparently have an attorney who is not familiar with retirement benefits for military., you would be very well-advised to confer --- immediately, before it is too late --- with one who does. If you do not, there is very very good chance you will have regrets later on down the line.
Consider contacting any of the following Georgia lawyers:
Shawn Hammond, Augusta
http://www.hammondlaw.org/PracticeAreas/Military-Divorce.asp
Shawn Gunder, Augusta
http://www.augustadivorce.com/georgia-lawyer-attorney-Military-Divorces.htm
Jeff Cleghorn, Atlanta
http://gadivorcelitigators.com/Attorney-Jeff-Cleghorn.html
Abbott & Abbott, P.C., Marietta / Canton
http://www.abbottandabbott.net/PracticeAreas/Military-Divorce.asp
Wm. John Camp, Macon
http://www.wpmlegal.com/bio/WilliamCamp.asp
Steven P. Shewmaker, Atlanta
http://www.lynchshewmaker.com/Firm%20Info/Lawyers/15357751.aspx
(I make this suggestion with a bit of reluctance because for the past 25+ years I have made a good part of my living dealing with the problems that people have who have gone through a “military divorce” here in Oregon using a lawyer (if they had one at all) who was not familiar with military retirement benefits. After the damage has been done, THEN they come to see me, regretting that they hadn’t called me earlier, at the time of divorce, when all of the problems could have been avoided. Old adage: An ounce of prevention is worth a pound of cure.)
Second, I question whether a judge can legally defer the entry of a final judgment of divorce for two years so as to stretch out the length to 20 years, for purpose of gainng ex-spouse military benefits, at least if either party objects. While I can understand the judge’s concerns, I question the legal authority to do it. But I sure can understand the judge’s concern, and the concern of you wife (and her attorney), as it would be much to wife’s advantage to wait until the 20/20/20 rule is met for ex-spouse military benefits. And it probably won’t have too much of an adverse affect on the share of your retirement that she will be entitled to receive.
Third, as to the share of your potential future military disposable retired pay, federal law (the Uniformed Services Former Spouses' Protection Act, 10 USC § 1408) says that military disposable retired pay may be treated by the state divorce court as a marital property asset that is subject to division between the divorcing spouses, the same as other property assets of the marriage. But for servicemembers who are still on active duty at the time of divorce, there are two UNKNOWN VARIABLES that make it difficult (and arguably unfair) to make a specific dollar award at the time of divorce. Specifically, at the time of divorce, the duration of future military service is uncertain, as is also the actual dollar amount of each month’s future monthly disposable retired pay benefit that will be payable to the retiree during retirement years.
Thus, there is no rock-solid basis on which the divorce court judge can award to the servicemember’s spouse --- at the time of divorce --- a specific and specified dollar amount to be paid to the former spouse in the future at such time, if ever, that the retiree becomes eligible for actual receipt of disposable retired pay.
To deal with the problem, what the court does at the time of divorce is to set-forth in the divorce judgment a “formula” that will be applied in the future to calculate the “marital portion” of the retirement benefit entitlement, which is then used to determine the actual dollar amount of the future monthly disposable retired pay benefit that will be paid to the former spouse.
The “marital portion” of the servicemember’s disposable retired pay entitlement is typically determined by a “formula award” expressed in the divorce decree in terms of a “marital fraction” (or “coverture fraction”).
The numerator of the fraction is the period of the parties’ marriage while the military spouse was performing creditable military service, up to a specified “cut-off” date, such as the date of the parties' separation from one another, or the date of filing of a divorce petition, or the date of the parties' divorce, or some other date as determined by agreement or by applicable state law. NOTE: Most states use either the date of separation (when the parties ceased marital cohabitaiton) or the date of divorce (the official date of termination of the marriage). .
The denominator of the fraction covers the military spouse’s total period of military service creditable for military retirement entitlement. In cases where divorce occurs while the military spouse is still on active duty or still performing reserve duty, the denominator necessarily awaits future determination. The divorce decree resolves that problem by using a “formula award.”
The “formula award” provides the basis for making the future determination of the specific “marital portion” of the military spouse’s disposable retired pay entitlement. Divorce decree language would typically read as follows:
“The former spouse is awarded a portion of the member’s future disposable military retired pay, said portion to be computed by multiplying 50% times a fraction, the numerator of which is ______ [being the number of months of service time during marriage], and the denominator of which shall be the member’s total number of months of creditable military service as determined at the time of retirement.”
When the military spouse ultimately separates from military service, the denominator of the marital fraction (total months of military service creditable for retirement entitlement pirposes) will then be known. The formula set-forth in the divorce judgment is then applied so as to calculate the specific “marital portion” (stated in terms of a percentage) of the amount of the retiree’s monthly disposable retired pay benefit (regardless of what that amount may be), Typically, in accord with the formula set forth in the divorce judgment, when the retiree commences actual receipt of disposable retired pay, the retiree’s former spouse will then receive one-half (i.e., 50%) of the calculated “marital portion” of the retiree’s monthly amount of disposable retired pay.
Here’s how it works..... Let’s assume the servicemember got married after already having been on active duty for three years (36 months). The marriage lasts thereafter for 14 years (168 months), and then divorce occurs, with the servicemember at that point having completed a total of 17 years (204 months) of active duty, of which 14 years were “marital years.” The servicemember at that point has a potential future (but not present) entitlement to receive military disposable retired pay. So that is where the “formula award” comes into play. If and when the servicemember ultimately becomes entitled to receive disposable retired pay based on duration of active duty service, 168 months of the total time will have occurred during the years of marriage.
Assume the military spouse ultimately completes 20 years (240 months) of active duty service and qualifies for receipt of disposable retired pay. Applying the formula as spelled-out in the divorce decree, the “marital portion” would be determined by dividing the total number of months of marriage (168) by the total months of creditable military service (240). Thus, the “marital portion” of the retirement benefit entitlement would be 168/240, which is 70.0%, with the former spouse’s share then being one-half of the 70.0%, which is 35.0%. The former spouse would then be entitled to receive 35% of each monthly disposable retired pay amouint to which the retiree is otherwise entitled to receive. If a particular month’s disposable retired pay benefit amount should be $2,900, 35% of that amount, being $1,015, would be payable to the retiree’s former spouse, as adjusted in the future to include a proportional amount of COLAs.
In sum, the divorce judgment simple states the METHOD to be used to calculate and determine the share of disposable retired pay to which the former spouse will be entitled, with the actual calculation being subsequently made if and when the military spouse untimely commences actual receipt of disposable retired pay.
And that is how it works.
Finally, here are some HELPFUL WEBSITES that you ought to take a look at:
Everyday Errors in Military Divorce Cases --
http://www.abanet.org/family/military/militarydivorce_errors.pdf
How To Find A Military Divorce Attorney --
http://www.abanet.org/family/military/eagle_militarydivorceatty.doc
Higdon on Military Retirement Divorce
http://www.texasfamilylawinfo.com/docs/Higdon-Military_Retirement_Divorce.pdf
Retired and Annuitant Pay: Concurrent Retirement and Disability Pay (CRDP)
http://www.dfas.mil/retiredpay/concurrentretirementanddisabilitypay.html
Treatment of Disability Pay in Military Divorce
http://www.womansdivorce.com/disability-pay.html
http://retiredpay.com/retirement-planning/mil-pay/intro-to-reserve-component-retirement-calculation-and-valuation/
http://www.dfas.mil/militarypay/garnishment/Speech5.pdf
http://www.military.com/benefits/military-pay/retired-pay/military-reserve-component-retirement-overview
http://usmilitary.about.com/od/guardandreserve/a/earlyretirement.htm
http://usmilitary.about.com/od/reserveretirmentpay/a/reserveretire.htm
http://www.military.com/benefits/military-pay/retired-pay/computing-retired-military-pay
http://www.airforcetimes.com/benefits/getting_out/hbgr08_retirementbasicplans_091508/
And more.... (sorry is some are duplicates, or do not work)......
10 USC § 1408(a)(4) - Definition of “disposable retired pay”:
http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00001408----000-.html#a_4
10 USC § 12732
http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00012732----000-html
“Silent Partner” Series from North Carolina State Bar: (MUST reading!)
http://www.nclamp.gov/s_milpens.pdf
http://www.nclamp.gov/s_soldiers.pdf
http://www.nclamp.gov/s_mpdspous.pdf
http://www.nclamp.gov/s_pension.pdf
http://www.nclamp.gov/s_wording.pdf
OK. That should do it. I wish you well and trust the information provided here answers you questions and concerns.
================================
If your question has been satisfactorily answered, please acknowledge by clicking the green “ACCEPT” button in the upper right hand corner of your screen. That’s the only way I get paid for answering your question. After you’ve accepted, we can then engage in further dialogue if needed to clarify or elaborate. Also, your positive FEEDBACK comments are important, so be sure to add a few words as requested. And I thank you in advance. http://ldgorin.justia.net/index.html
Edited by Lawrence D. Gorin on 3/14/2010 at 6:46 PM EST
There appears to be much confusion about what is going on. Not sure if I can straighten it out here but I will try.
First, given that you apparently have an attorney who is not familiar with retirement benefits for military., you would be very well-advised to confer --- immediately, before it is too late --- with one who does. If you do not, there is very very good chance you will have regrets later on down the line.
Consider contacting any of the following Georgia lawyers:
Shawn Hammond, Augusta
http://www.hammondlaw.org/PracticeAreas/Military-Divorce.asp
Shawn Gunder, Augusta
http://www.augustadivorce.com/georgia-lawyer-attorney-Military-Divorces.htm
Jeff Cleghorn, Atlanta
http://gadivorcelitigators.com/Attorney-Jeff-Cleghorn.html
Abbott & Abbott, P.C., Marietta / Canton
http://www.abbottandabbott.net/PracticeAreas/Military-Divorce.asp
Wm. John Camp, Macon
http://www.wpmlegal.com/bio/WilliamCamp.asp
Steven P. Shewmaker, Atlanta
http://www.lynchshewmaker.com/Firm%20Info/Lawyers/15357751.aspx
(I make this suggestion with a bit of reluctance because for the past 25+ years I have made a good part of my living dealing with the problems that people have who have gone through a “military divorce” here in Oregon using a lawyer (if they had one at all) who was not familiar with military retirement benefits. After the damage has been done, THEN they come to see me, regretting that they hadn’t called me earlier, at the time of divorce, when all of the problems could have been avoided. Old adage: An ounce of prevention is worth a pound of cure.)
Second, I question whether a judge can legally defer the entry of a final judgment of divorce for two years so as to stretch out the length to 20 years, for purpose of gainng ex-spouse military benefits, at least if either party objects. While I can understand the judge’s concerns, I question the legal authority to do it. But I sure can understand the judge’s concern, and the concern of you wife (and her attorney), as it would be much to wife’s advantage to wait until the 20/20/20 rule is met for ex-spouse military benefits. And it probably won’t have too much of an adverse affect on the share of your retirement that she will be entitled to receive.
Third, as to the share of your potential future military disposable retired pay, federal law (the Uniformed Services Former Spouses' Protection Act, 10 USC § 1408) says that military disposable retired pay may be treated by the state divorce court as a marital property asset that is subject to division between the divorcing spouses, the same as other property assets of the marriage. But for servicemembers who are still on active duty at the time of divorce, there are two UNKNOWN VARIABLES that make it difficult (and arguably unfair) to make a specific dollar award at the time of divorce. Specifically, at the time of divorce, the duration of future military service is uncertain, as is also the actual dollar amount of each month’s future monthly disposable retired pay benefit that will be payable to the retiree during retirement years.
Thus, there is no rock-solid basis on which the divorce court judge can award to the servicemember’s spouse --- at the time of divorce --- a specific and specified dollar amount to be paid to the former spouse in the future at such time, if ever, that the retiree becomes eligible for actual receipt of disposable retired pay.
To deal with the problem, what the court does at the time of divorce is to set-forth in the divorce judgment a “formula” that will be applied in the future to calculate the “marital portion” of the retirement benefit entitlement, which is then used to determine the actual dollar amount of the future monthly disposable retired pay benefit that will be paid to the former spouse.
The “marital portion” of the servicemember’s disposable retired pay entitlement is typically determined by a “formula award” expressed in the divorce decree in terms of a “marital fraction” (or “coverture fraction”).
The numerator of the fraction is the period of the parties’ marriage while the military spouse was performing creditable military service, up to a specified “cut-off” date, such as the date of the parties' separation from one another, or the date of filing of a divorce petition, or the date of the parties' divorce, or some other date as determined by agreement or by applicable state law. NOTE: Most states use either the date of separation (when the parties ceased marital cohabitaiton) or the date of divorce (the official date of termination of the marriage). .
The denominator of the fraction covers the military spouse’s total period of military service creditable for military retirement entitlement. In cases where divorce occurs while the military spouse is still on active duty or still performing reserve duty, the denominator necessarily awaits future determination. The divorce decree resolves that problem by using a “formula award.”
The “formula award” provides the basis for making the future determination of the specific “marital portion” of the military spouse’s disposable retired pay entitlement. Divorce decree language would typically read as follows:
“The former spouse is awarded a portion of the member’s future disposable military retired pay, said portion to be computed by multiplying 50% times a fraction, the numerator of which is ______ [being the number of months of service time during marriage], and the denominator of which shall be the member’s total number of months of creditable military service as determined at the time of retirement.”
When the military spouse ultimately separates from military service, the denominator of the marital fraction (total months of military service creditable for retirement entitlement pirposes) will then be known. The formula set-forth in the divorce judgment is then applied so as to calculate the specific “marital portion” (stated in terms of a percentage) of the amount of the retiree’s monthly disposable retired pay benefit (regardless of what that amount may be), Typically, in accord with the formula set forth in the divorce judgment, when the retiree commences actual receipt of disposable retired pay, the retiree’s former spouse will then receive one-half (i.e., 50%) of the calculated “marital portion” of the retiree’s monthly amount of disposable retired pay.
Here’s how it works..... Let’s assume the servicemember got married after already having been on active duty for three years (36 months). The marriage lasts thereafter for 14 years (168 months), and then divorce occurs, with the servicemember at that point having completed a total of 17 years (204 months) of active duty, of which 14 years were “marital years.” The servicemember at that point has a potential future (but not present) entitlement to receive military disposable retired pay. So that is where the “formula award” comes into play. If and when the servicemember ultimately becomes entitled to receive disposable retired pay based on duration of active duty service, 168 months of the total time will have occurred during the years of marriage.
Assume the military spouse ultimately completes 20 years (240 months) of active duty service and qualifies for receipt of disposable retired pay. Applying the formula as spelled-out in the divorce decree, the “marital portion” would be determined by dividing the total number of months of marriage (168) by the total months of creditable military service (240). Thus, the “marital portion” of the retirement benefit entitlement would be 168/240, which is 70.0%, with the former spouse’s share then being one-half of the 70.0%, which is 35.0%. The former spouse would then be entitled to receive 35% of each monthly disposable retired pay amouint to which the retiree is otherwise entitled to receive. If a particular month’s disposable retired pay benefit amount should be $2,900, 35% of that amount, being $1,015, would be payable to the retiree’s former spouse, as adjusted in the future to include a proportional amount of COLAs.
In sum, the divorce judgment simple states the METHOD to be used to calculate and determine the share of disposable retired pay to which the former spouse will be entitled, with the actual calculation being subsequently made if and when the military spouse untimely commences actual receipt of disposable retired pay.
And that is how it works.
Finally, here are some HELPFUL WEBSITES that you ought to take a look at:
Everyday Errors in Military Divorce Cases --
http://www.abanet.org/family/military/militarydivorce_errors.pdf
How To Find A Military Divorce Attorney --
http://www.abanet.org/family/military/eagle_militarydivorceatty.doc
Higdon on Military Retirement Divorce
http://www.texasfamilylawinfo.com/docs/Higdon-Military_Retirement_Divorce.pdf
Retired and Annuitant Pay: Concurrent Retirement and Disability Pay (CRDP)
http://www.dfas.mil/retiredpay/concurrentretirementanddisabilitypay.html
Treatment of Disability Pay in Military Divorce
http://www.womansdivorce.com/disability-pay.html
http://retiredpay.com/retirement-planning/mil-pay/intro-to-reserve-component-retirement-calculation-and-valuation/
http://www.dfas.mil/militarypay/garnishment/Speech5.pdf
http://www.military.com/benefits/military-pay/retired-pay/military-reserve-component-retirement-overview
http://usmilitary.about.com/od/guardandreserve/a/earlyretirement.htm
http://usmilitary.about.com/od/reserveretirmentpay/a/reserveretire.htm
http://www.military.com/benefits/military-pay/retired-pay/computing-retired-military-pay
http://www.airforcetimes.com/benefits/getting_out/hbgr08_retirementbasicplans_091508/
And more.... (sorry is some are duplicates, or do not work)......
10 USC § 1408(a)(4) - Definition of “disposable retired pay”:
http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00001408----000-.html#a_4
10 USC § 12732
http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00012732----000-html
“Silent Partner” Series from North Carolina State Bar: (MUST reading!)
http://www.nclamp.gov/s_milpens.pdf
http://www.nclamp.gov/s_soldiers.pdf
http://www.nclamp.gov/s_mpdspous.pdf
http://www.nclamp.gov/s_pension.pdf
http://www.nclamp.gov/s_wording.pdf
OK. That should do it. I wish you well and trust the information provided here answers you questions and concerns.
================================
If your question has been satisfactorily answered, please acknowledge by clicking the green “ACCEPT” button in the upper right hand corner of your screen. That’s the only way I get paid for answering your question. After you’ve accepted, we can then engage in further dialogue if needed to clarify or elaborate. Also, your positive FEEDBACK comments are important, so be sure to add a few words as requested. And I thank you in advance. http://ldgorin.justia.net/index.html
Edited by Lawrence D. Gorin on 3/14/2010 at 6:46 PM EST
Lawrence D. Gorin, Lawyer
Category: Military Law
Satisfied Customers: 1,544
Experience: Military & Family Law. 30+ years experience. USFSPA pension division expertise.
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124 satisfied customers
CAPT, JAGC, USN (Retired); Former Military Judge; Specializing in Security Clearance Adjudications
Paul
Lawyer
48 satisfied customers
Oklahoma lawyer. Over 10 years in the military.
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