Military Pension Division and The Big Freeze: Rules, Remedies, and Res Judicata 

Introduction: SILENT PARTNER is a lawyer-to-lawyer resource for military legal assistance attorneys and civilian lawyers, published by the Military Committee of the American Bar Association’s Family Law Section and the North Carolina State Bar’s military committee. Please send any comments, corrections and suggestions to the address at the end of this Silent Partner. There are many SILENT PARTNER infoletters on military pension division, and other aspects of military divorce. Just go to americanbar.org > Family Law Section > Military Committee (the website of the above ABA committee), or nclamp.gov > For Lawyers (the website of the military committee, N.C. State Bar).

Rules, Rules, Rules

A new set of rules for the division of military pensions took effect in 2016 for servicemembers (SMs) not yet receiving retired pay on a divorce date after December 23, 2016.[1] Details are found in three Silent Partner info-letters, “Fixing the Frozen Benefit Rule,” “All Clauses Considered: Writing the Frozen Benefit Award,” and “Military Pension Division and the Frozen Benefit Rule: Nuts and Bolts.”

The Frozen Benefit Rule did not require states to alter the formula which is used in dividing military retired pay. Except for about five states, the nationwide standard for division of retired pay - whether military, federal, state or private - is called the “time rule.” This rule states that the share of the non-employee spouse is determined as follows:

A) The former spouse (FS) receives a share, usually 50%, TIMES

B) The marital or coverture fraction, which is pension service during the marriage divided by total pension service, TIMES

C) The actual retired pay of the employee.

The formula looks like this:

50% X marital pension service/total pension service X actual retired pay 

The Frozen Benefit Rule doesn’t alter the spouse’s share. It is still a mandatory 50% in most community property states and a presumptive 50% in equitable distribution states.

And the Rule doesn’t change the marital fraction. That remains unaltered by federal law.

The only element which is changed is the third one, the pension to be divided. Instead of distributing the actual retired pay of the military retiree, the court is limited to distribution of a “snapshot amount,” fixed at the date of the divorce or dissolution.

In addition to the Frozen Benefit Rule, federal law prescribes a rule for determining when a pension can be garnished as property by the retired pay center.[2] There must be a ten-year overlap between the marriage and military service creditable for retirement in order to allow these direct payments to the FS.[3] It is customary to state compliance with the “10/10 Rule” in the pension division order.[4]

A third federal rule limits what can be awarded to the FS as property division. The total retired pay that may be paid to the ex-spouse as property cannot exceed 50% of disposable retired pay.[5]

Finally, most states have a rule for date of classification and valuation of marital or community property. By way of example, this date is the date of separation in California and North Carolina. It is the date of filing of the matrimonial action in New York. It may be the date of divorce or the date of irretrievable breakdown in other states.

The text below will explain the confluence of these rules, how the. SM can ensure that the court complies with the Frozen Benefit Rule, and how the FS can try to avoid its consequences in order to receive a share of full retired pay.

Remedies for the Servicemember

When the pension division order involves a 10/10 case (i.e., one which can be paid as a property division garnishment), the retired pay center acts as a “control valve” to ensure that the order contains the necessary terms so that only disposable retired pay (DRP) will be divided. The rules in Volume 7B, Chapter 29 of the DoDFMR (the Department of Defense Financial Management Regulation) limit the DRP (disposable retired pay) to the hypothetical retired pay which exists on the date of divorce.[6] Regardless of how much the servicemember’s total retired pay may be, only the DRP is subject to division with the former spouse.

Here is an outline of the rules for Frozen Benefit cases when payments are made through the military retired pay centers:

A) When the divorce is granted after December 23, 2016, AND

B) The servicemember is not receiving retired pay at divorce, then

C) The divisible retired pay cannot exceed 50% of…

D) The “snapshot amount” that would have been paid to the member if he or she had retired at divorce.[7]

This restriction, operating through the retired pay center, protects the SM. It ensures that the garnishment of his or her retired pay for a former spouse will not exceed the limits imposed by federal law. It will always be the lesser of 50% of the DRP or the fraction or percentage of DRP stated in the pension division order, or resulting from the terms or formula in the order.

Beyond the Domain of DFAS

That protection disappears when there is no 10/10 overlap. Instead of having two layers of protection - the courts and DFAS - the SM must rely solely on the judge to enforce the limits of federal law.

This may be a difficult challenge for the court, since few judges have sufficient knowledge about military pension division, let alone the new restrictions of the Frozen Benefit Rule, to establish and enforce the boundaries. Since most cases are settled, not tried, the judge seldom reads the clauses and paragraphs in the pension division order before signing it. In contested cases, the judge often makes a ruling and then directs one of the attorneys to “draw me an order” to implement the pension division.

And that’s the next problem. Few attorneys are familiar with the requirements of the Frozen Benefit Rule, since the division of retired pay in divorce cases is the province of state laws and rules, not federal restrictions.

What may happen is that the pension division order gets drawn in the old, time-tested way, with the FS getting 50% of the marital share times the SM’s actual retired pay. No one is paying attention to the restrictions set out in the Frozen Benefit Rule; the attorneys and the court may not even be aware of the impact of Sec. 641 of the National Defense Authorization Act for Fiscal Year 2017, its clarification in Sec. 624 of the NDAA 2018, the codification of these changes in the USFSPA at 10 U.S.C. §1408(a)(4)(B), and the requirements of Section 2908, Chapter 29, Volume 7B of the DoDFMR.

What will happen at retirement if such an order was entered years before, when the SM was still serving? In that situation, the payments will not come from DFAS since the order does not comply with the 10/10 Rule. The FS will want enforcement so that she or he can receive a share of the military pension, which is now in “pay status,” with the military retiree getting 100% of the payments. Upon the motion or application of the FS for compliance or contempt, the order to be enforced may be one which provides a larger share to the FS than that which is allowed by the Frozen Benefit Rule. And the judge may be inclined to leave things as they stand, citing the legal enforcement doctrine of res judicata. This doctrine bars the relitigation of matters which were or could have been litigated at the time of the initial order. When a court order is erroneous but the losing party fails to appeal it, the order stands and is enforceable, even as to those issues erroneously decided.

Strategies for the Servicemember

The game plan for the. SM should contain two strategies. The first is to make sure the pension division order contains the correct wording. This not only means the two data points at the divorce date which are required by the DoDFMR, i.e., the years of creditable service (or total points for Guard/Reserve personnel) and the “High-3” pay of the member. It also means ensuring that the order states clearly what is divided, namely, the disposable retired pay of the SM. Since by definition this order will not be going through the halls of DFAS, the two data points will not provide any guidance for DFAS in limiting the amount of retired pay which can be divided. The utility of these two data points is to peg the amount of the member’s hypothetical retired pay as of the date of divorce. Without stern supervision by the SM’s attorney, it’s possible that the order will omit the data points entirely.

How is retired pay calculated? Regular retired pay (i.e., retired pay based on active-duty service years) or non-regular retired pay (i.e., retired pay based on Guard/Reserve service) involves multiplying the retired pay base by the retired pay multiplier.

A) For those entering military service on or after September 8, 1980 and not in the Blended Retirement System, the retired pay base is the average of the highest three years (36-months) of monthly basic pay which the member received, whether consecutive or not.[8] This is known as the “High-3.”

B) The retired pay multiplier for these SMs is 2.5% times the years of creditable service.[9]

It would be all too easy for the final order to state that “the spouse’s share is 50%” and that “the marital fraction is 124 months of creditable service divided by total service at the time of retirement” but then to lose focus when it comes to what is to be divided. The order needs to contain a clear directive that “the pension to be divided is disposable retired pay measured on the date of divorce as if the military member had retired on that day,” subject only to passive cost-of-living adjustments (COLAs) under 10 U.S.C. § 1401a.

The second remedy is to appeal immediately if these essential clauses are not present. Failure to appeal means that, if enforcement proceedings follow, whatever was stated in the order will be binding on the SM/retiree based on res judicata. Appealing a trial court order can be expensive and time-consuming. It may require a specialist in appeals to be sure that the record is complete, the deadlines are met, and the arguments are crafted soundly. But a SM’s failure to appeal means that his hands are tied on the issue of full payment to the FS; the rule of res judicata (also called “the law of the case” and - in the Restatement of Judgments - “claim preclusion”) will bar future remedies and relief for him or her.

As a final point, counsel for the SM may want to include a clause which states what is to be divided and how that amount was calculated. This makes it clear what amount is available for division, regardless of whether some other judge is assigned down the road, another attorney takes over for the spouse, or a new attorney signs on to represent the servicemember. Such a clause in the pension order might read:

As of the date of divorce,

* the “High-3” retired pay base for John Doe, the defendant (used for servicemembers who entered military service on or after September 8, 1980), is $4,567, and

* his years of creditable service is 24.5, and thus

* his disposable retired pay for division herein is $4,567 X 24.5 X 2.5%, pursuant to 10 U.S.C. §1407 and 1409, or $2,797.29.

This is pursuant to Sec. 641 of the National Defense Authorization Act for 2017 and 10 U.S.C. §1408(a)(4)(B).[10]

If the former spouse’s attorney is not alert to the issues in military pension division, it may even be possible for the SM to get an agreement providing for the specified sum as a fixed dollar amount. The award of a fixed dollar amount in a pension division order, decree or incorporated agreement means that the recipient receives no COLAs (cost-of-living adjustment), and this would be a substantial windfall for the SM.

Remedies and Res Judicata - Relief for the Spouse

Advocacy for the spouse or former spouse means two strategies. First of all, it means use of standard pension division orders and language. Inertia often governs what lawyers do when they prepare - at the end of the case - implementing orders for division of retired pay. Whether these orders are QDROs (qualified domestic relations orders) or other instruments, everyone wants a sample, a “go-by,” so that the blanks can be filled in, the signatures applied, the document filed and the case closed.

This is the time for the attorney for the spouse/FS to prepare what might be called the “standard order” using the usual language about division of the actual retired pay of the servicemember. If this is the order which the judge signs, then it becomes the governing instrument and can be enforced later on under res judicata; an unappealed order - even if it contains substantive legal errors - is binding on the parties and enforceable.

Military. Pension Division and Res Judicata: The Golden Key

When the door to pension division is locked for the FS because of the VA waiver, the only way to obtain entry is to get a key. The golden key for former spouses in VA waiver cases is res judicata. Let’s examine some of the facets of this valuable tool. Here are four of them:

A) It was res judicata that formed the basis for upholding the division of military retired pay despite the Supreme Court’s holding in McCarty v. McCarty that military pensions could not be divided without Congressional authorization, enacted afterward as the USFSPA. In re Marriage of Sheldon, 124 Cal. App. 3d 371, 177 Cal. Rptr. 380 (1981) (state courts specifically held that the McCarty decision did not prevent division of military pension based on res judicata); cert. dismissed Sheldon v. Sheldon, 456 U.S. 941 (1982) (petition for certiorari was filed, but Supreme Court dismissed it for want of a substantial federal question; dismissal on this basis is an adjudication on the merits).

B) Even though federal law bars a court from dividing VA disability compensation, or the military retired pay that is waived to receive it, res judicata has been used to uphold the division of gross retired pay without deduction of the VA waiver. Mansell v. Mansell, 217 Cal.App.3d 219, 265 Cal.Rptr. 227 (1989), cert. den. 498 U.S. 806 (1990); Ocasio-Santiago v. Rockwood, No. 48066-2-II2017 Wash. App. LEXIS 740 (Wash. Ct. App., Div. Two, February 13, 2017) (appellate court denied claim of retiree that trial judge had impermissibly divided his military disability benefits, stating that appellant had not raised these arguments below and thus was barred from bringing them up in the appeal); Winters v. Winters, 2017 IL App (5^th) 160217-U, 2017 Ill. App. Unpub. LEXIS 1563 (Ill. Ct. App., 5^th Dist., July 31, 2017) (unpub.) (retiree’s agreement to pay share of pension to former spouse plus res judicata barred his later claim that he did not have to pay because of VA payments received and the “VA waiver”).

C) Even though in general MDRP (military disability retired pay) cannot be divided, res judicata has been employed to uphold a trial court’s division of MDRP. Evans v. Evans, 75. Md. App. 364, 541 A.2d 648 (1988) (collateral attack on such a judgment is barred when there was no previous appeal); Rudolph v. Jamieson, No. 88, September Term, 1988, 2018 Tex. App. LEXIS 3983, 2018 WL 2648514 (Tex. Ct. App., 3d Dist., June 5, 2018) (same).

D) The U.S. Supreme Court has specifically proclaimed that the refusal of a court to grant relief because of res judicata is not reviewable because of constitutional error: “Whether the doctrine of res judicata, as applied in California, should have barred the reopening of pre-McCarty settlements is a matter of state law over which we have no jurisdiction.” Mansell v. Mansell, 490 U.S. 581, 586, fn. 5 (1989).

The Savings Clause

There is another substantive basis for arguing that the FS should receive a share of the full retired pay of the member, not just a portion of a fixed and frozen payment. 10 U.S.C. § 1408 (e)(6), the “savings clause” in the Uniformed Services Former Spouses’ Protection Act (USFSPA), allows the courts to employ state enforcement remedies for any amounts which may not be payable through the retired pay center.[11] Counsel for the FS can argue to the judge that the court may still hold the retiree liable for the unpaid portion of the pension under 10 U.S.C. § 1408 (e)(6). That section of USFSPA, known as the “savings clause,” states:

(6) Nothing in this section shall be construed to relieve a member of liability for the payment of alimony, child support, or other payments required by a court order on the grounds that payments made out of disposable retired pay under this section have been made in the maximum amount permitted under paragraph (1) or subparagraph (B) of paragraph (4). Any such unsatisfied obligation of a member may be enforced by any means available under law other than the means provided under this section in any case in which the maximum amount permitted under paragraph (1) [e.g., 50% of disposable retired pay] has been paid….

Numerous court decisions have held that orders which require the retiree to pay more than 50% of disposable retired pay are not void or invalid; they are simply not enforceable through garnishment from the retired pay center for amounts in excess of 50%.[12] If challenged on the issue of what may be divided, counsel for the FS can attempt defeat the claim of the SM/retiree (that federal law preempts state court orders) by arguing that this section of USFSPA provides an “escape hatch” for the FS in enforcement of the pension division order.

Denominator Dilemmas

The second issue which must be addressed is the standard denominator of the marital or coverture fraction used in most states. Except for Texas, Florida, Tennessee, Kentucky and Oklahoma, virtually all states divide the pension payments actually received, and they use a fraction to determine what portion of the pension was acquired during the marriage. The numerator of the fraction is always that time during marriage in which the pension was earned; it ends at the date specified in state law for classification and valuation of marital or community property (e.g., the date of divorce, date of separation or date of marital dissolution filing). The denominator of the standard time-rule fraction is the total time of service toward the pension.

Here is the choice point for the spouse’s attorney. And there is a risk with either choice that is made.

• Should the denominator remain the full term of pension service?
  • The advantage of this would be its consistency with the rest of the “standard order” that the FS’s attorney is using. If nothing is changed, nothing is unusual and nothing is out of place, then there is nothing to alert the other side of the “actual retired pay” which is being divided - not the fixed benefit as of date of divorce. This denominator is the standard denominator specifying the full career of John Doe, the SM.
  • The disadvantage is that - if the court in the future only enforces the fixed benefit to be divided, then the spouse is actually receiving a double discount - one for getting the frozen benefit as of the divorce date, and another discount for the steadily increasing denominator, which dilutes her or his share every month of every year of further service.
  • Or should the denominator be fixed as of the divorce date?
    • To do this would be fully consistent with the Frozen Benefit Rule, which fixed the amount to be divided as of the divorce date. It makes sense mathematically to have a denominator which is fixed on that date as well, and such an approach prevails in the five states mentioned above which - through state law - already used the fixed benefit approach to pensions of all types at the time of divorce.
    • If, however, the denominator is fixed, won’t that alert the other side to the issue of a fixed benefit?

Conclusion

Due to the complexities of military pension division, especially in cases where the Frozen. Benefit Rule comes into play, counsel for either party must be alert and fully prepared, with full knowledge of the rules set out in the DoDFMR. When the 10/10 Rule is not met, payments will not be transmitted through income-withholding at the retired pay center, and vigilance is even more important for the attorney for the spouse or the servicemember. This infoletter provides some of the guidance necessary for both sides.

(Rev. 11/6/2019)

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This SILENT PARTNER was prepared by COL Mark E. Sullivan (USA-Ret.). For revisions, comments or corrections, contact him in Raleigh, N.C. - 919-832-8507, or at mark.sullivan@ncfamilylaw.com.