Silent Partner
Military Retirement Benefits: The Master Checklist 2.0
SILENT PARTNER is a 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 Committee on Legal Assistance for Military Personnel. Please send any comments, corrections and suggestions to the address at the end of this document.
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Introduction. The aim of this SILENT PARTNER is to teach the reader how military retired pay works, to assist in understanding the Survivor Benefit Plan, and explain how to accomplish the allocation and division of military benefits. Also shown below are the places where attorneys can find resources which clarify these issues so that they can guide their clients in decision-making and can submit pension division orders which will be honored by the retired pay centers.
Why “checklist 2.0?” The original Checklist was revised in 2017 due to major changes in military pension division: the “Frozen Benefit Rule,” an amendment to the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408 effective 12/23/16; the Supreme Court’s decision on VA disability pay and indemnification in Howell v. Howell, 5/1517; and the new Blended Retirement System, for everyone who enters military service on or after 1/1/18 and a large number of active-duty and Guard/Reserve servicemembers who opted in during 2018.
1. Got "DOCs"? What are the documents you need to understand military pay and retired pay, Reserve Component (Guard/Reserve) retirement points, accrued leave, elections for the Survivor Benefit Plan (SBP), and notification of eligibility for retirement for a Guard/Reserve member? For a full list of documents, see the Silent Partner infoletter, “Docs for Division,” available at www.nclamp.gov > For Lawyers. Here’s a simple list to use:
a. Leave and Earnings Statement for active-duty personnel (this is DFAS Form 702)
b. “How to Read Your LES” on the Defense Finance and Accounting Service (DFAS) website (www.dfas.mil)
c. Retirement Points Accounting System statement for Guard/Reserve personnel
d. Retiree Account Statement for retired personnel (DFAS-CL Form 7220)
e.“20-year letter” (Notice of Eligibility) for Guard/Reserve personnel, issued when SM (servicemember) attains 20 creditable years of service
f. DD Form 2656-1 for SBP elections, coverage for retirees
g. DD Form 214 – discharge statement (“Report of Separation”)
h. Thrift Savings Plan quarterly statements
i. Letter from DFAS that servicemembers (SMs) receive upon retirement (pay status), showing expected amount of retired pay and calculations
j. Sometimes a document can be obtained through discovery from SM. Or it may be obtained with the SM’s signed release from the retired pay center, which may be DFAS (Army, Navy, Air Force, Marines Corps) or the Coast Guard Pay and Personnel Center (serving the USCG and the commissioned corps of the Public Health Service and the National Oceanic and Atmospheric Administration, or NOAA), or the Guard/Reserve headquarters or state adjutant general’s office, or other military agency, as applicable.
2. “Who’s in charge here?” This is about the rules for division of military retired pay and the Survivor Benefit Program (SBP).
a. Division of military pensions is authorized by USFSPA, an enabling act allowing states to divide pensions; the Act does not specify a method of division and contains some restrictions.
b. SBP is the survivor annuity program for pension division, to allow a former spouse (FS) to continue to receive payments after the member/retiree dies. 10 U.S.C. 1447 et seq.
c. Volume 7B of the Department of Defense Financial Management Regulation, DoD 7000.14-R (DoDFMR) explains how each of these works. Look up “DODFMR” on any search engine to find the Regulation. In general, the Coast Guard follows this Regulation. See Ch. 1 & 3 for how retired pay works, Ch. 29 for pension division payments, Ch. 43 et seq. for SBP, etc.
d. State laws and rules exist for pension division, whether survivor annuity is available for the FS, what the marital fraction is, whether military leave is divisible, etc.
e. December 2016 – BIG change for those still serving: If divorce is after 12/23/16 and individual is not yet receiving retired pay at divorce, then retired pay center will only divide the pension that he/she would have received upon retirement the date of divorce. This “Frozen Benefit Rule” is the subject of several Silent Partner infoletters.
3. To play the game, know the rules! You need to know how military retired pay works, how compensation for a retiree is calculated, and what is needed for state court jurisdiction to divide military retired pay.
a. Retirement from active duty (a “regular retirement” under Ch. 71 of title 10, US Code) is under one of 3 systems: a) Final retired pay b) High-3 or c) CSB/Redux. A good deal of information can be found at the “Army Retirement Services” website – use any search engine to find this URL and open the website. The info is applicable for all branches of the uniformed services. The important date is DIEMS (Date of Initial Entry into Military Service), which is found on the Active Duty LES. For information on the new BRS (Blended Retirement System), effective 1/1/18, see Silent Partner infoletters.
b. Reserve/National Guard retirement rules (pension based on retirement points)
i. Retired pay usually starts when retiree attains age 60
ii. 20 qualifying years needed to be retirement-eligible (50 points for a “good year”)
iii. Four points for a “drill weekend,” one point per day of active duty (e.g., 14 points for two weeks’ annual training or “summer camp”)
c. Jurisdiction rules are found at 10 U.S.C. § 1408 (c)(4). Jurisdictional basis for the order must be specifically stated in the order. A court has jurisdiction over a SM’s pension through by:
i. Domicile – his or her state of legal residence (not necessarily “Home of Record” or the state he/she designates for state tax purposes with the military pay office on DD Form 2058).
ii. Consent to jurisdiction of the court (entry of general appearance in the lawsuit)
iii. Residence, but not because of military assignment
d. SCRA – Pension order must state that court has honored SM’s rights under the Servicemembers Civil Relief Act, Chapter 50 of Title 50, U.S. Code.
e. There are four methods for division of retired pay. The full explanation is in the Silent Partner, “Military Pension Division: Guidance for Lawyers.” Examples:
i. Fixed dollar amount - $500 a month
ii. Percentage – “Mary gets 10% of Tim’s pension monthly” (use when retirement has occurred and all numbers are known)
iii. Formula clause – “Mary is to receive 50% of Tim’s final retired pay times 214 months of marriage during military service divided by Tim’s total service when he retires” (use when SM not yet retired)
iv. Hypothetical - “Mary is to receive 50% of Tim’s retired pay times 214 months of marriage during service divided by Tim’s total service when he retires, with his retired pay calculated as if he had retired as a staff sergeant with 16 years of creditable service with a retired pay base (”High-3 amount”) of $5,400 monthly.”
f. Reserve/Guard methods of division – same as above except that formula clause must be expressed in points, not months, if a formula contains a fraction with unknown denominator (for total military service).
g. Disposable Retired Pay (DRP) = gross retired pay less a) money owed to the government, b) any VA disability waiver, and c) premium for SBP (for FS in this divorce). These are the usual debits. DRP is what retired pay center divides, regardless of what the order says. See also “Break a leg!” below.
h. COLAs (cost-of-living adjustments to retired pay) occur in December. They are automatically included in all division methods except the fixed dollar amount.
i. The military pension is not a “fund,” so you cannot refer to the account balance or the part of the fund acquired during the marriage or at divorce. It is a defined benefit, governmental program (not a “qualified plan”) with monthly payments to retiree. TSP is a fund (Thrift Savings Plan), similar to 401K plan. Remember “What you see is what you get” – you can check the account balance to see what’s there.
4. SBP – choose it or lose it. This is about how the Survivor Benefit Plan works, its cost and benefits.
a. SBP – an annuity that continues stream of income to designated beneficiary when SM/retiree dies first; without it, the pension stops upon death of the SM/retiree.
b. It pays 55% of selected base amount to the recipient.
c. In a regular retirement, FS coverage generally costs 6.5% of base amount, with premium paid by deduction from pension. For Guard/Reserve members, cost is about 10% of base amount.
d. If the FS dies first, then the entire pension is restored to the retiree.
e. The SM/retiree elects SBP voluntarily, or else court may order former-spouse coverage through order sent to the retired pay center.
f. The base amount may be any the full monthly retired pay (which is the default if order or clause is silent) down to $300/mo.
g. Spouse is automatically covered. This ends at divorce, so FS coverage must be ordered. Proper wording is “John Doe will immediately elect Jane Doe for former-spouse SBP coverage.” When order doesn’t mention base amount, default is full retired pay.
h. Election must be registered at retired pay center within one year of divorce by member/retiree. FS may use “deemed election” to register the order requiring SBP election if member/retiree refuses to comply with election requirement.
5. Snooze… and you lose. Here we learn the limitations and deadlines which apply across the board.
a. 10/10 Rule – direct pay from the retired pay center requires 10 years of service concurrent with 10 years of marriage (which ends at divorce, not separation or decree of legal separation). This is an enforcement rule, not a rule as to pension division eligibility. The FS is still eligible to claim pension division if less than 10/10.
b. Never take a default judgment against the SM/retiree. File where there is jurisdiction to divide the pension, obtain proper service, and always state the basis for jurisdiction in the order (see jurisdiction rules above) to get valid direct-pay order honored by retired pay center.
c. SBP is suspended for the FS if she/he remarries before age 55.
d. SBP deadlines – when the SM/retiree makes the former-spouse election, it must be done within one year of divorce (use DD Form 2656-1). When the FS makes a “deemed election,” it must be done within one year of order requiring SM/retiree to elect FS SBP coverage (use DD Form 2656-10).
e. “Your EX or your NEXT” – SBP cannot be divided between present and former spouses.
f. SGLI – When representing FS, do not rely solely on Servicemembers Group Life Insurance to secure benefits. A 1981 Supreme Court decision says that courts cannot enforce orders or agreements that require SGLI. Ridgway v. Ridgway, 454 U.S. 46 (1981).
g. 20/20/20 Rule – full medical benefits for an unmarried FS requires 20 years marriage, 20 years of creditable service, and an overlap of 20 years. This means TRICARE and space-available care at military medical facilities. If 20/20/20 not met, use CHCBP (Continued Health Care Benefit Program), a premium-based health-care program, so long as FS has not remarried before age 55.
6. “Break a leg!” Receipt of disability pay can reduce the divisible pension
a. The primary types of disability payments are: military disability retired pay, VA disability compensation, and Combat-Related Special Compensation (CRSC)
b. Courts cannot divide VA disability compensation or CRSC; only a small part of military disability retired pay may be subject to pension division (although in support cases, disability benefits ARE usually subject to consideration as income and are subject to garnishment).
c. When the retiree has a VA disability rating of less than 50% or is receiving CRSC, there is a dollar-for-dollar reduction of the pension; thus the share for the FS is reduced due to the unilateral action of retiree.
d. Sometimes settlements employ indemnification language to guard against this. This area has been significantly impacted by the May 2017 U.S. Supreme Court’s decision in Howell v. Howell, 137 S.Ct. 1400, holding that court have no independent power to order indemnification to make whole the FS when a VA waiver has reduced or eliminated the FS’s pension share. See the Silent Partner, The Death of Indemnification? as to how to protect the FS through use of A) express contractual indemnification or B) res judicata; these are not subject to the Howell ruling.
e. For more information on VA disability payments and their effect on military retired pay, read Scouting the Terrain, The Servicemember’s Strategy, The Spouse’s Strategy, and The “Evil Twins” – CRDP and CRSC. (Silent Partner infoletters).
(rev’d. 3/27/21)
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SILENT PARTNER is prepared by Mark E. Sullivan, a retired Army Reserve JAG colonel and the author of The Military Divorce Handbook (Am. Bar Assn., 3rd Ed. 2019). For revisions, comments or corrections, contact him at 919-832-8507 or mark.sullivan@ncfamilylaw.com.