Splitting Military Retirement in a Divorce

“Our holding today is a recognition of the economic and social realities which often characterize military families. … In light of these circumstances, it is evident that husband’s military career was in reality a joint investment of both parties, and wife has a claim to some portion of husband’s military retirement pay which accrued during their years of marriage.” In re Marriage of Gallo, 752 P.2d 47, 53 (Colo. 1988)

In 1988, the Colorado Supreme Court ruled that military retirement payouts — like other pension plans — are considered “property” and therefore subject to division upon divorce. This means that if you are a military spouse considering divorce, you may be entitled to receive part of your spouse’s military retirement payout in the divorce settlement. This is also important for service members to keep in mind if they are considering ending their marriage.

In this article, you will learn about the factors that divorce courts consider when dividing military retirement.

Talk to a Military Divorce Attorney

Military divorce can get complicated. Before you agree to anything related to splitting military retirement, it is crucial that you speak with an attorney who understands its nuances. Our military divorce attorneys at Robinson & Henry respect the myriad sacrifices made by both service members and their spouses. We will work equally hard to achieve the best possible outcome for you. Call 303-688-0944 today to begin a case assessment.

Uniformed Services Former Spouses Protection Act

In 1981, the U.S. Supreme Court ruled in McCarty v. McCarty that states did not have jurisdiction to divide military retirement benefits.

The next year, the federal government enacted the Uniformed Services Former Spouses Protection Act (USFSPA). The USFSPA authorizes, but does not require, state courts to divide military retirement upon divorce, legal separation, or annulment. 10 U.S. Code § 1408(a)

Jurisdiction

Per 10 USCS § 1408, a court must have jurisdiction over a service member in order to divide military retirement benefits.

Courts must have jurisdiction by virtue of:

• residence, other than because of military assignment, in the court’s territorial jurisdiction
• domicile in the court’s territorial jurisdiction, or
• consent from the military member

In re Marriage of Akins, 932 P.2d 863, 866 (Colo. App. 1997)

Simply being stationed in Colorado is not sufficient — even if that’s where you were served divorce papers. Without consent or domicile, the Colorado divorce court lacks jurisdiction to divide military retirement.

Consent

A divorce court cannot infer consent simply from the failure to object to jurisdiction. In one divorce case, an El Paso County court awarded the wife a portion of the husband’s military pension. The husband then filed an appeal claiming he did not consent to the Colorado court’s jurisdiction.

He further alleged that since he was now a resident and domiciliary of North Carolina, his prior domicile in Colorado could not form the basis for jurisdiction over his military pension. A Colorado appeals court agreed with the husband and reversed the trial court’s decision:

“Furthermore, the question of consent under § 1408(c)(4) is not whether the military member simply waives his right to contest personal jurisdiction under state procedural rules. Rather, the statutory language requires some form of affirmative conduct demonstrating express or implied consent to general in-personam jurisdiction.
In re: Marriage of Akins, 932 P.2d 863 (Colo. App. 1997)

However, consent also does not have to be expressly given. Actively participating in the divorce proceedings, such as by filing a motion to reduce child support, is enough for the court to infer consent. In re: Marriage of Booker, 833 P.2d 734 (Colo. 1992)

Frozen Benefit Rule

Prior to 2016, courts could consider future promotions or service extensions that may increase the pension amount. However, the National Defense Authorization Act changed the way state courts can divide military retirement pay when the member is still on active duty at the time of divorce.

Per the NDAA, a former spouse’s share of the pension will be “frozen” or locked in place at its current value at the time of the divorce.

The 10/10 Rule

Following a divorce, a qualifying former spouse may apply for direct payment of the retirement through the Defense Finance and Accounting Service (DFAS), an agency of the Department of Defense.

A common misconception in military divorce cases is that military spouses do not qualify for any share of a military retirement payout unless the couple has been married for at least 10 years. This is inaccurate — a spouse does not qualify for direct payment of their share from DFAS unless 10 years of marriage overlap 10 years of military service.

For example, if a couple has been married for 12 years, but only eight of them were while the service member was in the military, the 10/10 rule is not satisfied.

The 10/10 rule does not mean that couples divorcing prior to the 10-year mark do not have to split the military pension. It only means that the retirement will be cut automatically by the DFAS after 10 years. The former spouse will then be paid directly rather than their spouse writing them a check.

What Counts as Creditable Service for the 10/10 Rule?

Creditable service includes the years of service for which a member was eligible to receive active duty pay. 10 U.S.C.S. § 1405 It excludes time in AWOL status, time incarcerated, or time lost due to an injury caused by the member’s misconduct. 10 U.S.C.S. § 972

Additionally, if a spouse is married for at least 10 years overlapping military duty, it doesn’t matter if those 10 years are all active duty, all reserve, or a combination of both.

Maximum Retirement Payments from DFAS

The maximum portion of a retirement that DFAS will pay a former spouse as part of a property division is 50 percent of the member’s disposable retired pay. This excludes the following:

• Any forfeitures as ordered by a court-martial
• Any amount of money that was overpaid to the government
• Pay that is waived so the military member can receive VA disability benefits
• Survivor Benefit Plan premiums that are already being received by the military member’s former spouse

The Hunt-Gallo Formula

Colorado’s equation for dividing benefit pension plans is known as the Hunt-Gallo formula. This time-rule formula determines the marital share of the pension.

The courts calculate this by taking the number of months of military service that occurred during the marriage and dividing them by the total months that the military spouse served. The former spouse is then entitled to half of the marital share calculated by the formula.

Let’s look at an example:

Let’s say a couple was married for exactly 12 years (144 months) overlapping the 20-year career of a military member who was retired at the time of divorce.

The marital portion would be 144 divided by 240. That comes out to 60 percent of the member’s disposable retired pay. In this case, the former spouse would be entitled to one-half of that — 30 percent. The service member would receive the remaining 70 percent. The service member’s share consists of the other half of the marital share (30 percent), plus his premarital separate property interest (40 percent).

We understand this formula can be confusing for many people, which is why we recommend speaking to an attorney who is well-versed in military divorce.

Survivor’s Benefit Plan

The Survivor Benefit Plan (SBP) is an insurance benefit that pays a portion of a military retiree’s pay to a named beneficiary when the retiree dies. Without an SBP plan, the income flow from the former member’s retirement pay would stop at the death of the retiree.

Colorado divorce courts have traditionally required a service member to elect an SBP for the former spouse. Costs and benefits under this option are identical to those for spouse coverage.

The plan, which is partially funded by the government, is paid for with monthly deductions from the member’s retirement pay. In the event of the military member’s death, the former spouse receives a monthly payment of 55 percent of the designated base amount. The designated base amount is an amount not greater than the service member’s full gross retired pay, but not less than $300 per month.

Survivor’s Benefit Paperwork is Time Sensitive

It’s important to know there is a one-year statute of limitations for filing the proper paperwork with the military after the court awards SBP coverage. If the paperwork is not filed in time, SBP could be lost forever.

Talk to a Military Divorce Attorney

Military families face unique financial and emotional burdens that can be exacerbated by an already stressful divorce process. The military divorce attorneys at Robinson & Henry have the experience and knowledge to help both sides navigate the process of splitting military retirement during divorce proceedings. Call 303-688-0944 today to begin a case assessment.