Military retirement benefits are not handled in the same manner as private pension plans, which are governed by ERISA (Employee Retirement Income Security Act). Calculating, allocating and dividing military retirement benefits as part of a divorce case is not easy.
In Florida, many servicemembers assume that the soon-to-be former spouse is entitled to a specific amount of the military retirement by federal law. That is not true.
- Florida law provides that any portion of a military retirement earned during the course of a marriage is subject to equitable distribution. That means that even where parties are married for one month, a servicemember may have to give the former spouse a share of a future military retirement.
- Federal law provides the ceiling for how much of one's military retirement can be subject to division by a state court. It does not dictate any specific division, formula, percentage, or fixed amount.
- The Defense Financial and Accounting Service (DFAS) does not decide how much a military retirement a spouse is entitled to upon a divorce. By federal law, DFAS is merely an agent who has the authority to directly pay military retired pay to a former spouse pursuant to a state court order so long as the former spouse qualifies under the "10-10" rule.
- Similarly situated servicemembers can end up paying wildly different amounts of military retired pay to former spouses. Why? Because most divorce attorneys don't under how a military retirement is earned and, more importantly, how to explain it to the judge.
- Indemnification provisions ordered by a court for waiver of retired pay to receive VA disability pay are not enforceable. There is a difference between a court ordering this and the parties agreeing to it.
- There are now 4 different military retirement systems in play - 1) Final retired pay; 2) High-3; 3) CSB/Redux; and 4) Blended Retirement System (BRS). Each of these systems means that retirement will be calculated differently.
- When the pension is based on retirement from active duty, there are four acceptable methods for dividing it: a) fixed dollar amount; b) percentage; c) formula clause; and d) hypothetical award. There are pros and cons for each method, so make sure you evaluate which would be best for your case.
- Don’t rely on Servicemembers Group Life Insurance to secure benefits; a 1981 Supreme Court decision says courts cannot enforce orders or agreements that require SGLI. Ridgway v. Ridgway, 454 U.S. 46 (1981).
- Survivor Benefits Program can be a big deal. SBP is a unitary benefit and cannot be divided between a present and former spouse. Without SBP, the stream of pension payments to the former spouse ceases upon the death of the servicemember/retiree.
- It may be able to be fixed. If you had a vague division of military retired provision in your divorce judgment it may be possible to litigate the issue to your benefit.
Patrick Korody is a Jacksonville, Florida attorney who has specialized training, experience, and knowledge regarding the division of military retired pay in divorce. He has drafted numerous Military Retired Pay Division Orders and has testified in court as an expert witness in the division of military retired pay. He serves as a Commander in the Navy JAG Reserves.