Dividing a Military Pension

[mwalker]

What is the name of your state? Florida

Our divorce involved a military pension in addition to my former husband's regular profession. Unfortunately neither of our attorneys had enough military law experience, and I didn't realize at the time how important this would end up being.

My former spouse will be retiring from the military June 30, 2006 with nearly 40 years in the service(including active duty and reserve duty). We were married 35 years. His military service before the marriage and after the marriage amounts to approximately 3 1/2 years.

My ex-spouse wanted to base my share by dividing the "points" earned only from the day of our marriage up to the time of filing for divorce. I wanted to figure the percentage based on the total years married being a military wife.

It wasn't until I was preparing to file the DD 2293 for my share of ex-spouse's military pension that I learned from the Uniformed Services Former Spouse's Protection Act that the division of points is usually based on years married, that it's only "disposable" (gross pay less allowed deductions) pay that's divided, and that wording needs to be very specific.

I'm thinking that we're going to need to have all this clarified. Is it likely that I can have the percentage refigured with this new information? Any thoughts on this will be appreciated. Thanks

 

[LdiJ]

What is the name of your state? Florida

Our divorce involved a military pension in addition to my former husband's regular profession. Unfortunately neither of our attorneys had enough military law experience, and I didn't realize at the time how important this would end up being.

My former spouse will be retiring from the military June 30, 2006 with nearly 40 years in the service(including active duty and reserve duty). We were married 35 years. His military service before the marriage and after the marriage amounts to approximately 3 1/2 years.

My ex-spouse wanted to base my share by dividing the "points" earned only from the day of our marriage up to the time of filing for divorce. I wanted to figure the percentage based on the total years married being a military wife.

It wasn't until I was preparing to file the DD 2293 for my share of ex-spouse's military pension that I learned from the Uniformed Services Former Spouse's Protection Act that the division of points is usually based on years married, that it's only "disposable" (gross pay less allowed deductions) pay that's divided, and that wording needs to be very specific.

I'm thinking that we're going to need to have all this clarified. Is it likely that I can have the percentage refigured with this new information? Any thoughts on this will be appreciated. Thanks

I think you are going to need an attorney who has some experience in this area. Its very technically specific. There may be some people here who can give you anecdotal advice, but in the end I honestly think that you are going to need an experienced attorney.

 

[IrishLady47]

It is true that court orders addressing the division of a military pension must be worded differently than those dividing 401k or other pension plans. Also, from what you have written, I conclude that your ex is eligible for a reserve retirement, not an active duty retirement. The two are not calculated the same way and, accordingly, the way it would be distributed as "marital property" is also different. It would have been advisable for each of you to have lawyers fully familiar with military retirement provisions and the USFSPA. This may allow you to readdress this issue, or it may not.

How exactly is your award of your ex's pension worded in the court order? As a % of his pension or differently?

Please remember too that when the USFSPA refers to years of service, it really means "qualifying years", that differs between active duty & reserve personnel. For instance, if you are on active duty for 20 years, you have 20 years of qualifying service for retirement. If you have been in the reserves for 20 years, you may or may not have 20 qualifying years. Perhaps, some of those years, a member may have been in the inactive reserve and only earned membership points, those years would not qualify for retirement pay.

So, it is certainly possible that although your ex was in for 40 years, not all those years count towards his retirement pension--unlike a soldier on active duty. If, for example, during your marriage and his service, 5 years did not qualify towards his pension, you should not get "credit" for those years even though married--it didn't count towards the pension.

I can tell you this-very few civilian lawyers understand the Federal laws and statutes governing military benefits. So, be careful in your selection.

 

[mwalker]

Wording About Dividing Military Pension

In our Final Judgment it states that "Wife shall receive 37.25% of Husband's military retirement as of 1/01/03 plus cost of living adjustments as an equitable distribution of some of the marital assets. Reserve military pension is based on points and the parties have agreed that Wife is entitled to 1372 points and Husband is entitled to 2311 points as of 1/01/03."

When I began filling out the DD2293 for my share of the military pension, my Ex insisted that I fill in the amount of "points" rather than a dollar amount or the percentage listed in Final Judgment. His take on this is that my actual percentage will be much lower as he continues to aquire points until retirement.

It wasn't until I read in the USFSPA, that military retirement pay is usually based on a percentage of the years married that were qualifying years. If this is true, then my percentage should be significantly higher. There were approximately 2 1/2 years of Active Duty before we married, and there will be approximately 1 1/2 after the date of our divorce.

I have a copy of his ASOSH record and all of his years are qualifying years except for one. He has four years of Active Duty and the remainder in the ready reserve. He says his retirement pay will be the same amount as that listed for an Active Duty O-5 with 30+ years. I don't know if this is true or not.

It's my understanding that we also won't be dividing gross pay, but "disposable" pay. If anyone knows how that may affect my percentage any ideas are appreciated. I will be paying for the actual cost of the SBP premiums myself.

 

[424Smudge]

Ok I have to step in here and I am sure that I will get shot at for it. You got married to him knowing that he was in the military. Now he has worked his butt off for 40 years serving our country and is now being rewarded for his hard efforts that I am sure probably included time overseas in war areas and you are trying to get the most that you can from this? I find that just wrong. The amount that you are being awarded is pretty just and fair given that he was probably an officer why are you looking for more?

 

[IrishLady47]

You should fill in the DD Fm 2293 w/the 37.5% of his retired military pay you were awarded as property. Since reserved retired pay is determined by both qualifying years AND the number of points, it seems fair to consider the points to determine percentage. It would appear your court order did that. Disregard your ex's advice. BTW, since you're awarded a percentage, you automatically receive whatever COLA he does every year. Note - although he was only in 2 1/2 years before your marriage, it was active duty and he earned over 900 points for that service alone. Active duty points are not restricted, his inactive duty points during his reserve time were limited to 60 a year before 1994 (not sure of date), 75 a year until 2003(?) and then 90 points, regardless of how many earned. Plus, only 50 points need to be earned to have a qualifying year.

Not knowing the other division of your property, it's hard to be sure, but it seems you were treated fairly in this. Unless, he waives a large portion for VA disability.

Also, you cannot directly pay SBP premiums yourself, DFAS will deduct it from his retired pay. You could reimburse him if you want to. His "disposable" pay subject to division will be that after the SBP deduction and IF he waives any retired pay to receive VA disability (which is not subject to division as property, but can be considered income for alimony). Other deductions for taxes, other insurance, etc do not count and are considered a part of the "disposable" pay.

I know you'd like to hear you should get 50% of his retired pay, but I really don't feel you are entitled (depending on the rest of the property division). And that's only 12.5% more than you were awarded. The SBP premiums could be that much alone. Just remember, if you decide to get an attorney, find one experienced in military benefits.

Good luck regardless. It must be hard to divorce after all those years & readjust to a new life.