A change to the law has occurred that affects the manner in which court orders submitted to the Defense Finance and Accounting Service (DFAS) as part of an application for division of military retired pay pursuant to the Uniformed Services Former Spouses’ Protection Act (USFSPA) must be formatted.
The National Defense Authorization Act (NDAA) of 2017, in Section 641, signed by President Obama on December 23, 2016, amended the definition of disposable pay in the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408– In the case of a division of military retired pay as property (that becomes final prior to the date of a member’s retirement), the military member’s disposable income is limited to “the amount of basic pay payable to the member for the member’s pay grade and years of service at the time of the court order” and increased by the cost-of-living amounts granted to military retirees from the time of the (divorce) to the date the member retires.
This change now closely tracks Florida law governing treatment of pension and retirement plans in divorce – a spouse is only entitled to the marital portion of a retirement or pension plan valued on the date of filing (or sometimes divorce) and any passive appreciation. The one difference is the definition provides “at the time of the court order” whereas in Florida accumulation of marital property generally stops at the time of filing. For military members, a proper division has always been accomplished by calculating the High 3 based on the date of filing (or sometimes divorce) and incorporating this into an equation as if the member retired on the date of filing (or sometimes divorce). This would ensure that a former spouse would not receive benefit of post-dissolution success (like advancements in rank) and pay raises.
Noteworthy, this law governing the division of military retirement is not retroactive. Those who entered into less favorable formulas for division of military retirement are not entitled to have their equations modified, unless of course the equations themselves are vague and rejected by DFAS.
Attorney Patrick Korody is a former Navy JAG with offices in Jacksonville, FL. His family law practice focuses solely on military divorce. He can be reached at 904-383-7261.