I am constantly contacted by recent military retirees in Florida who want to know whether they can change the provision in their divorce judgment as it relates to division of a military pension with a former spouse.
The common scenario is this: military member gets married young and divorces some years later. The military member may or may not have hired an attorney (and if he/she did, they hired an attorney who didn’t really understand a military retirement) and didn’t pay much attention to the legal documents – he/she just wanted the divorce to be over with. The military member stays on active duty post-divorce, and often excels – earning rank/promotions and time in service. And, of course, increasing the “High 3” that will be used to determine the military pension at the time of retirement. At some point, and sometimes more than 20 years later, the former spouse hears about the retirement and comes for their share of the monthly military retirement payments.
As a preliminary matter, it’s important to note that federal law permits state courts to treat military pensions as marital property, thus permitting an award of a portion of a military retirement during a divorce. It’s call the Uniform Services Former Spouse Protection Act. State law then applies to determine exactly how much the former spouse should get in the divorce. Under Florida Law, the portion of the pension earned during the marriage is considered marital property.
While this seems straight forward, that is hardly the case. The real struggle is valuation – how much value was actually earned during the marriage. There are many factors that impact the value of a military retirement pension at the time of actual retirement: promotions, pay increases, and years of service are the big factors.
Consider the case of an E-5 who gets divorced at 10 years of service from his wife of 12 years – thus the wife was married to the member for 10 years of military service. Assume the E-5 stays in the military and retires as an E-9 with 30 years of active duty military service. Assume the former member’s disposable E-9 retirement is $6,000/month. Is the former spouse entitled to 1/6 of that pay (10/30 divided by 1/2), or $1000/month? Now imagine if that same member had stayed in the military for 20 years and retired at as an E-6 with a disposable retirement income of $3000/month. Is the former spouse entitled to 1/4 of that pay (10/20 divided by 1/2), or $750? In my opinion, both of these scenarios illustrate a former spouse receiving the benefit of a member’s continued success and military service.
While most attorneys use the above formula (years of marriage/total years of service x .5 x disposable retirement pay), it often leads to a windfall for former spouses because they get the benefit of the military members continued service, i.e. pay raises, promotions, and years of service. And, under Florida law, the former spouse is not entitled to any increase in pension or retirement benefits due to the post-dissolution success or work of the military member. It’s complicated, but in any case involving a service member – reservist or active duty – it is important to appropriately value the military retirement at the time of the divorce.
A lack of understanding of military retirement and the law governing military retirement often leads to poor drafting in consent final judgment agreements or final judgments made by the courts. These either lead to future litigation or a windfall for the former spouse, though there is nothing illegal about a windfall in a consent final judgment since the parties are free to agree, like in any written contract, to whatever terms they want!
If you are military member, you need an attorney who understands how to equitably distribute a military retirement. If you are a spouse of a military member, you need an attorney who knows how to take advantage of an opposing attorney’s lack of understanding of a military retirement and other benefits like Tricare, SGLI, and SBP.
Attorney Patrick Korody is a former Navy Judge Advocate (JAG). He handles military family law cases in and around Jacksonville, FL. He can be reached at (904) 383-7261.