Virginia State Bar

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Military Law

A Section of the Virginia State Bar.

Military Law Newsletter - Spring 2015

Military Law News
In the Line of Fire in Military Pension Law: Practical and Procedural Aspects1

By
Stephen C. Glassman2

I. INTRODUCTION

A recent article in a local bar association newsletter described the field of military pensions and retirement benefits as the area of “greatest misunderstanding and misinformation” in military divorces. That author attributes this to the lack of understanding on the part of the service members and their spouses. Misunderstanding at the level of lawyers involved in military divorces also remains prevalent. Here, it is the purpose to focus on selected practical and procedural aspects of military pension law so that when the family practitioner is in the “line of fire” tools to navigate through the barrage will be available.


II. ABBREVIATED HISTORY OF THE LAW OF MILITARY RETIREMENT BENEFITS

Despite the present history of over twenty years since Virginia courts and other jurisdictions have been able to divide military pensions as part of the marital estate of divorcing parties, a brief early history explaining how we came to be where we are is essential.3 Prior to 1982, Virginia, along with most other states, did not regard military retirement benefits as divisible assets upon divorce. Among the leading exceptions to this general view was California. In re Marriage of Fithian, 10 Cal. 3d 592, 517 P.2d 449 (1974), determined that military retired pay, if vested at the time of divorce, was a marital asset subject to division as community property. Later, this same conclusion was reached even if the retirement pay had not yet vested. In re Marriage of Luciano, 104 Cal. App. 3d 956. 164 Cal. Rptr. 93 (Cal. Ct. App. 1980).

The first of the three significant landmarks in the development of national military pension law occurred in 1981, when the Supreme Court decided McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2278, 69 L.Ed.2d 589 (1981). McCarty held that federal law, as then constituted, pre-empted the application of state community property law to divide military retired pay. The second significant landmark was the Congressional response to McCarty, by the passage of the Uniformed Services Former Spouses’ Protection Act (“USFSPA” or the “Act”), 10 U.S.C. §1408 (1982 ed. and Supp. V). The Act, which has been amended numerous times since its passage, authorized state courts to treat as community or marital property “disposable retired pay”.4 Disposable retired pay specifically excludes retired pay waived by a retired service member in order to receive veterans’ disability benefits,5or in order to receive disability pay under 10 U.S.C. 1201 et seq.6 The third significant landmark was the Supreme Court decision in Mansell v. Mansell.7 Here, the Court held that the Act does not authorize state courts to treat military retired pay waived in order to receive veteran’s disability benefits as marital or community property subject to division or partition.

McCarty, USFSPA and Mansell form the foundation upon which state statutory and case law is built. The date of the McCarty decision was June 26, 1981. Congress gave USFSPA retroactive effect to the date immediately prior to the decision in McCarty, except as to those cases which were final as of the date prior to the decision.8

III. JURISDICTION AND USFSPA

In addition to authorizing state courts to divide military pensions as marital property, USFSPA sets forth the jurisdictional requirements for exercising authority over a member’s military pension. The Act provides that “a court may not treat the disposable retired pay of a member in the manner described in paragraph (1) [permitting division of retired pay] unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court.”9

The third basis for jurisdiction as set forth in § 1408 (c) (4) of the Act is consent. As a practical matter, it is the least difficult and least controversial method of establishing jurisdiction. The rule as applied in Virginia is that if a service member makes a general appearance, this is deemed consent. In Kramer v. Kramer,10 Judge Jamborsky, in citing Seeley v. Seeley,11 and In re Marriage of Jacobson,12 denied a motion to dismiss as to consideration of the military pension because the military member made a general appearance and requested affirmative relief. However, other jurisdictions have held to the contrary.13 See also Gowins v. Gowins.14

The implications of USFSPA make it clear that it is quite possible for a court to have jurisdiction over a military member for purposes of a divorce, custody, division of assets other than a military pension and child and spousal support, but not have jurisdiction to divide that spouse’s military pension. If the military member seeks affirmative relief in a divorce action for division of property other than the pension, such may be regarded as consent for purposes of division of the military pension.15

Anecdotally, this writer tried a case in Prince William County, Virginia where his client, a military member with a domicile and home of record other than Virginia, separated from his wife by leaving the marital residence in Prince William County and moved into a barracks in the District of Columbia where he was stationed. Upon being served in the District of Columbia with the Prince William County divorce action, a special appearance was filed on the basis that though the Court has jurisdiction over all matters arising from the marriage, it did not have jurisdiction over the military pension. The court held that since he had elected to make Virginia the marital home, albeit that he was stationed in the District of Columbia, that was sufficient to confer jurisdiction over the pension, even though he left the jurisdiction before the filing of the divorce action.

The decision by the Prince William County Court runs contrary to most reported decisions on the issue. In re Atkins,16 is a Colorado decision which held that state long-arm jurisdiction over a non-resident divorcing service member based upon marital domicile in the state, does not confer authority upon the court to divide a military pension.17

In Virginia, by statute, a military member who was a domiciliary for six months prior to an overseas deployment may sue and is subject to suit in Virginia.18 This does not necessarily mean that such a member has consented to the jurisdiction of the court for purposes of dividing a military pension.

Of course, because of the excellent schools in Virginia, many military members seek to establish domicile here to benefit from in-state tuition. There are specific requirements for that to be accomplished. However, it is suggested that if such a member so qualifies a later suggestion of no consent for military pension purposes may not be heard.

Where a suit is to be commenced is a strategic question which must be asked and satisfactorily answered when bringing a suit by a military member or by that member’s spouse. In a recent case, the military member was stationed in Virginia for six months prior to his deployment to an embassy overseas. He brought an action in Virginia for divorce while being stationed overseas for a substantial period. His spouse, who did not reside in Virginia, had to consider her options; file an answer in Virginia and obtain jurisdiction over the member’s pension; bring an action in her own state but not obtain jurisdiction over the pension and possibly not obtain in personam jurisdiction over the member; bring an action in the foreign country where the member was stationed or wait until the member returns to the United States and seek to block in personam jurisdiction of the Virginia Court over both parties. Measuring these decisions is the first issue to be considered.

Another basis for jurisdiction under § 1408(c) (4) is domicile. This means domicile at the commencement of the action. Petters v. Petters.19 Past domicile in the state is insufficient.20 Domicile, in general, is the place of one’s actual residence with the intention to remain there permanently except for temporary absences.21 In the military, proof of a member’s domicile is often burdensome.

Each member is given a “home of record” for administrative purposes when he or she enters the service. Most members incorrectly regard this as their domicile. While in the military, members may change their home of record designation. In so doing, they incorrectly conclude that they have changed domiciles. Domicile requires substantial evidence to prove the two elements of physical presence and intent to remain. What constitutes physical presence of a military member while stationed away from the member’s domicile is a matter of individual state law.

Many military members seek to establish domicile in Texas or Florida since neither state has an income tax. As is pointed out by one author, “A close analysis of most of these claims, however, reveals that there are no actions to back them up, such as ownership of property in that jurisdiction, and also [sic] that the member has never really resided in that state in the first place.”22

Domicile of a military member is a wily matter which may prove to be a burdensome pursuit in establishing jurisdiction over a military pension. Once established, the practitioner is warned that different states continue to treat military pensions differently. Where you end up may not be where you want to be.

Jurisdictional issues unrelated to USFSPA are frequently confronted in military pension law cases. The Virginia case of Campbell v. Altizer,23is of note. Here, in 1986, the non-military spouse obtained a divorce by default in Arizona. The divorce decree purported to divide her husband’s military pension. At the time of the action, the husband was a resident domiciliary of Virginia and did not enter an appearance in Arizona. Upon the husband’s retirement in 1991, the wife sought to have her share of the pension paid directly to her from the Defense Finance and Accounting Service (DFAS). Her request was denied by DFAS on the ground that the Arizona court did not have jurisdiction over the member. She then filed a bill for equitable distribution in Virginia. The husband’s demurrer to the bill was granted on the ground that under § 20-96 and 20-107.3J of the Virginia Code, the action in Virginia had to be brought within two years of her having obtained a final divorce decree in Arizona.

The case of Toomey v. Toomey,24 presents an interesting conflict between Virginia’s Court of Appeals and its Supreme Court. Here, the Court of Appeals held that where the wife was an out-of-state resident, and was served with the husband’s Virginia Bill of Complaint there, this was tantamount to service by publication. Since the trial court did not have in personam jurisdiction over her, the Court reasoned that seven months after the final divorce was granted, the wife could come to Virginia to seek division of husband’s military pension. The Supreme Court disagreed, finding nothing in § 20-107.3 to extend jurisdiction of the trial court past 21 days after the final decree within which it could act, since the case did not involve foreign proceedings covered by § 20-96 of the Virginia Code.

Again, anecdotally, this writer’s client, after having been a military wife for 17 years, was divorced by her husband pursuant to an Ohio decree. At the time of the decree, she was a resident domiciliary of Virginia and has remained so to the present. Her husband was resident in Maryland when he filed for divorce in Ohio, where he claimed his domicile. At the time of the divorce, the wife contested in personam jurisdiction in Ohio. The court agreed and an in rem divorce was granted to the husband. The husband who remained a resident of Maryland during the divorce proceedings later returned to Ohio. After the divorce, the wife successfully obtained her share of the marital portion of the husband’s military pension by seeking a partition of it in Ohio, a state where post-divorce partition is permitted.

IV. CALCULATION OF MILITARY RETIRED PAY

The term “disposable retired pay” which is the correct identification of the military member’s retired pay is defined as follows:
The term "disposable retired pay" means the total monthly retired pay to which a member is entitled less amounts which--
(A) are owed by that member to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay;
(B) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38;
(C) in the case of a member entitled to retired pay under chapter 61 of this title [10 USCS §§ 1201 et seq.], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member's disability on the date when the member was retired (or the date on which the member's name was placed on the temporary disability retired list); or
(D) are deducted because of an election under chapter 73 of this title [10 USCS §§ 1431 et seq.] to provide an annuity to a spouse or former spouse to whom payment of a portion of such member's retired pay is being made pursuant to a court order under this section25.

V. DEDUCTION FOR SBP

This definition of disposable retired pay, as a practical matter, means that retired pay is gross retired pay less the amount deducted to pay premiums for the Survivor Benefit Plan (SBP).26

If SBP is elected for the benefit of an existing spouse, a prior spouse or a spouse who is to become a “former spouse, “ the amount to be deducted from the gross retired pay to pay that premium results in “disposable retired pay.” If the maximum election is made for SBP; to wit, 55% of disposable retired pay, then, historically, the premium, has been 6.5% of gross retired pay.

VI. DEDUCTION FOR DISABILITY RETIRED PAY OR VA DISABILITY PAY

Another limitation on the division of military retired pay is the subject of the Mansell decision, supra at 4, n.9. Mansell and USFSPA make it patently clear that if a military member waives a portion of his retired pay in order to receive disability pay in the form of periodic payments, then a court cannot consider such disability pay in dividing retired pay.27 However, if the parties agree that any such disability pay which reduced retired pay will not be deducted from retired pay in calculating the former spouses’ share, this will be upheld.28This concept is sometimes referred to as “supportifying” the pension division. That is, if the divisible pension is reduced by disability pay, the property settlement agreement provides that the deficiency so caused, nevertheless, will be paid by the retiree to the former spouse directly. Most courts have refused to “supportify” a diminished pension division to a former spouse by reason of disability without an agreement.29

The amount of disability pay is calculated on a percentage. If a member’s disability is 33% then his retired pay is treated as if one-third of the pay is disability pay. That portion is not included in military disposable retired pay for purposes of a court dividing the same incident to division of a marital asset.

If a member is eligible for Concurrent Retirement and Disability Pay (CRDP) and he has a 50% or greater disability, then he will receive all of his retirement pay and no offset to that pay by reason of a VA disability payment; however, if the Member’s disability is less than 50% the election to receive a tax free VA disability payment will offset against disposable retired pay.

Another way to handle a reduction in pension payments by election of the member is illustrated in Poziombke v. Poziombke, 2006 Va. App. LEXIS 61, 2006 WL 325296 (Va. Ct. App. Feb. 14, 2006) Here the Court Order had an indemnification provision in it. The essential provision was that if the member took action which diminished the former spouse’s interest, the former member would indemnify the former spouse. The military member asserted that such an indemnification, when it applies to election of a VA disability payment violates the holding by the Supreme Court in Mansell, supra at p.1. The Court disagreed. The indemnification provision was upheld.

VII. COMPUTING RETIRED PAY30

Military members who entered the service after September 8, 1980 but before August 1, 1986, have their final pay calculated according to the “High Three” formula. Pay is calculated based upon the average of the member’s highest thirty-six months of basic pay.31 The formula is 2.5 percent multiplied by years of creditable service multiplied by the average of the highest 36 months of basic pay (usually the last three years of active duty).

If the member entered the service after August 1, 1986, the member has two options: The member may utilize the High 3 formula discussed above or the member may elect a “REDUX” formula under the Military Retirement Reform Act. Here the member agrees to remain on active duty for twenty years and gets a mid-career bonus. The calculation is 40% of the High Three formula.32 If a member takes a REDUX instead of the full pension, the REDUX bonus is marital property and is subject to division. Therefore, if a military member is ordered to provide a certain percentage of his pension to his former spouse and before he retires he elects a REDUX, then the argument is that the former spouse gets a portion of the REDUX. This may not be entirely fair since it reduces future payments for the life of the member and, potentially thereafter.

There is another method of computing final pay for those who entered the service before September 8, 1980. This author has not been able to locate one such member presently on active duty, but they may be there. For such members the calculation of retired pay is based upon the final pay of such members and not an average of the High 3. The formula for these members is 2.5 percent multiplied by the years of credible service multiplied by the amount of final basic pay of the member at the time of retirement.

VIII. RESERVE AND NATIONAL GUARD RETIREMENT CALCULATIONS

The calculation of retirement for a reservist is based upon points earned not upon years served. Notwithstanding, in order to qualify for retirement a reservist must serve as such for a minimum of twenty years. The reservist earns points for weekend drills and days spent on active duty. In order to have a good year to qualify towards the twenty years required for retirement the reservist must earn a minimum of fifty points for each good year. With twenty such years the reservist is eligible to retire. However, the reservist is not eligible to receive retired pay until the reservist reaches age 60.33

The formula for reserve retired pay for those who entered service prior to September 8, 1989, is 2.5 % times the number of years of equivalent service times the base pay when retired pay commences. If entry is after September 8, 1989, then 2.5% is multiplied times the average of the highest 36 months of pay prior entry into pay status for retired pay at age 60 or date of discharge.

IX. MECHANICS OF PENSION DIVISION

Subject to the federal limitations set forth above, the manner in which a state court divides a military pension is a state law prerogative. The caveat is that if the court or the parties want the former spouse’s share of the pension to be paid directly to the former spouse by the military, the facts and the state court order must meet federal requirements. The first requirement which must be met before a former spouse is able to receive direct payments from the Department of Defense Finance and Accounting Service (“DFAS”), is that the parties to the divorce must have been married for ten years which period overlaps a ten-year period during which the military member has been in the service.34 As pointed out in Cook v. Cook35, the ten-year rule is not a requirement for empowering the state court to divide retired pay. Because of the difficulties former spouses may encounter in enforcing a division order not recognized by DFAS, where the ten-year rule is not met, alternative solutions should be explored, i.e. release of the military retirement claim for a lump sum or transfer of another asset in lieu of the pension such as the marital residence.

The next technical hurdle is how to express the division of the pension in a court order. Most division orders where the member has not yet retied use what is sometimes referred to as the “marital” or “coverture” formula. That is, the years during which the parties were married prior to separation and which overlap years of service, are divided by the number of years actually served by the member. The number so derived is multiplied by fifty percent. The result is a number which constitutes the former spouse’s percentage of the pension. By example, if the member was on active duty for 20 years at the time of divorce, and of those years he was married for 10 years, the fraction is 10 years of overlapping marriage and service divided by X, the number of years he will actually serve multiplied by 50%. Assume that he serves 10 years after his divorce for a total of 30 years. The former spouse would be entitled to one half of one-third of the pension or 16.7%.

There may be a basic unfairness in this formula. Assume that the member was a commander at the time of the divorce, but retired as an admiral (upper half) at the 30-year mark. Since the admiral’s retired pay is almost double that of the commander, the former spouse is benefiting from achievements of the member after the divorce, both as to his promotions and the fact of his remaining on active duty. To correct this inequity, it would be proper for the former spouse to receive half of the member’s retired pay, with all statutory increases such as annual COLA adjustments, as would be paid to a commander with 20 years’ service at the date the parties separated. In our example, this still may be unfair since the former spouse was only married for 10 years of overlapping service. Therefore, the formula could be modified to the 10 years of service.

Pennsylvania law regards the accomplishments of a military member post-divorce to be a necessary benefit to a former spouse. In the dissent in Matlock v. Matlock,36 a case where this author served as an expert witness, Judge Kelley made the following comments based upon the cited authority:

When a court orders the equitable distribution of pension benefits between former spouses, the increases in the value of the pension benefits attributable to the continued employment of the person actually accumulating the pension benefits is allocated to his or her former spouse. Holland v. Holland, 403 Pa. Super. 116, 118-19, 588 A.2d 58, 59-60 (1991), allocator denied, 528 Pa. 611, 596 A.2d at 60. To determine the portion of a pension that constitutes marital property, a coverture fraction is calculated. Lowry v. Lowry, 375 Pa. Super. 382, 404, 544 A.2d 972, 983 (1988).”

Judge Kelley does not comment on promotions and other achievements post marriage which would enhance the pension beyond incremental benefits following divorce.
A third alternative is to fix a sum certain which is to be paid as the former spouse’s portion of retirement.

USFSPA requires that for an order to be recognized by DFAS, it must express the amount of retired pay as a fixed percentage or sum. The implementing regulations contained in 32 C.F.R. § 63.6(c) (8) provides as follows:

In the case of a division of property, the court order must provide specifically for payment of a fixed amount expressed in U.S. dollars or payment as a percentage or fraction of disposable retired pay. Court orders specifying a percentage or fraction of retired pay shall be construed as a percentage or fraction of disposable retired pay. A court order that provides for a division of retired pay by means of a formula wherein the elements of the formula are not specifically set forth or readily apparent on the face of the court order will not be honored unless clarified by the court. (Emphasis added)

Most military families do not have sufficient assets to offset the present value of the military pension with existing marital assets. Therefore, in most cases, the deferred distribution method will probably serve the situation best.
Present values of pension benefits are usually derived from actuaries, accountants or economists. Financial planners and insurance agents often are capable of making these calculations. As well, there appear to be computer programs which accomplish this goal.

The reserve and National Guard pensions are usually divided differently than the active duty pension. The reason is that reservists receive retirement at age 60 based upon the number of retirement points earned during their careers. Therefore, if one were to calculate the marital or coverture formula for a reservist’s pension, first take the number of points earned by the reservist during the marriage to separation (or in a jurisdictions where marital assets accumulate to date of divorce, then to that date) and divide it by the number of points earned by the reservist over the course of the military career. The number so derived is the portion of retirement pay earned during the marriage. If this is multiplied by 50%, the marital portion of the retirement is the result.

To calculate reserve retirement pay on a time basis is unfair, and is not related to the circumstances. In a recent case, a Pennsylvania master called this author from the bench on a reserve case. When confronted with the alternative methods of calculation which could be applied, he decided to avoid the entire problem by awarding a fixed sum plus COLA. The case remains unresolved because the COLA aspect of the order will not be recognized by DFAS as written.

X. SURVIVOR BENEFIT PLAN (“SBP”)

Va. Code Ann. § 20-107.3G (2) (1997) provides that:
To the extent permitted by federal or other applicable law, the court may order a party to designate a spouse or former spouse as irrevocable beneficiary during the lifetime of the beneficiary of all or a portion of any survivor benefit or annuity plan of whatsoever nature, but not to include a life insurance policy. The court, in its discretion, shall determine as between the parties, who shall bear the cost of maintaining such plan.

This section authorized Virginia Courts to divide survivor benefits which may be available incident to the military SBP. Prior to its enactment in 1990, Virginia courts could not divide survivor benefits despite an implementing federal statute.37
SBP was enacted in 1972 to provide a monthly pension to surviving spouses of retired military members.38 In 1982, the coverage expanded and was provided to former spouses. In 1986, authority was granted to state courts to order benefits in favor of former spouses.

SBP provides members of the uniformed services with the opportunity to provide up to 55% of their gross retired pay as an annuity to designated beneficiaries. Courts can order that benefit to a former spouse. Once such an order is filed with DFAS, all prior SBP elections are terminated. The former spouse must have been married to the member for one year. If the member fails to make the election, the former spouse may do so if correctly done within one year from the final divorce. A certified copy of the order must be forwarded and received by DFAS within the one year threshold. The monthly premium for maximum benefits is 6.5% of gross military retired pay. The premium is not taxed.

State courts can order that the premiums be paid as they may determine. However, if the court orders one party to pay all of the premiums, DFAS will not recognize or make any adjustments in the distribution of retired pay between the retiree and the former spouse. Therefore, hypothetically, in a case where the retiree has 60% of the pension and the former spouse has 40% of the pension and the court has ordered maximum SBP, with the former spouse paying the total SBP premium, before DFAS issues two separate monthly payments of retired pay it will deduct the entire SBP premium of 6.5% of the gross pay off the top and then divide the remaining disposable retired pay 60% to the retiree and 40% to the former spouse. The net effect is that the parties are paying for the premium in proportion to their respective interest in the pension benefits; and not in accord with the court order requiring the former spouse to pay the premium. In order to adjust this, the former spouse would have to reimburse the retiree the amount the retiree is paying towards SBP monthly. This new economic responsibility becomes a problem particularly because retired pay is adjusted every year by a cost of living adjustment. Therefore, the parties would need to make an annual adjustment to the monthly reimbursement of premiums.

It is suggested by one author that where one spouse gets the benefit of DFAS not crediting the cost of SBP premiums pursuant to the court order, the court order should designate the party who is overpaid as a constructive trustee of the benefits for the other party. There may be some benefit to such language. However, in a recent case the Montgomery County, Maryland Circuit Court was able to easily find contempt simply because the order was not followed regarding reimbursement.39

There is a more elegant solution to reimbursement of premiums for SBP. It is referred to as “shifting” the premium for SBP to one former spouse or the other. The way it works is that the party who is obliged to pay the SBP premium will have an adjustment to the percentage of the pension to cover the premium charges. In our example of the former spouse receiving 40% of the pension and a court order requiring the former spouse to pay the SBP premium, an adjustment is made to that party’s percentage interest to cover the premium. The pension division order would read that the former spouse receives 35.83% of the pension. This reduction “shifts” the premium to the former spouse and no further adjustments are required for the life of the pension. The formula to achieve this result is discussed in Marshall S. Willick, Military Retirement Benefits in Divorce: A Lawyer’s Guide to Valuation and Distribution p.156. It is not discussed here because the average practitioner will never employ the formula; rather, such a person will consult tables which are printed in the Willick book at pages 158-60.

As suggested above, full SBP coverage is 55% of the total disposable retired pay of the retiree/former member. Therefore, a former spouse who is receiving 40% percent of the member’s retirement while the member is alive will begin to receive a 15% increase upon the member’s death. However, if the goal is to provide the former spouse with SBP benefits equivalent to the share of the pension, the court must detail that intention in its order. This reduces the premium, though the parties should consider awarding the maximum benefit and if the member is to pay for premiums to cover the amount the former spouse is receiving during the member’s life time, then the excess benefit could be paid for by the former spouse by shifting that portion of the benefit in excess of the percentage interest of the former spouse in the pension.

Essentially, the statute permits only one class of beneficiary at a time and permits only one beneficiary at a time from that class. Therefore, SBP cannot be shared between a former spouse and a second spouse. If there are two former spouses both of whom were purportedly given SBP one writer practitioner muses that the one who registers first, will receive it. That same writer practitioner suggests that if a member provided SBP to a former spouse who predeceases the member, upon the death of the first spouse, the member should be able to reassign SBP to the member’s present spouse or one who is becoming a successor former spouse. That theory has proven wrong in a recent case.40 This author’s client and the member, who were married after the divorce court for the first marriage ordered SBP but before the first wife died, DFAS denied the member the right to reassign SBP to his second spouse even though he had paid SBP premiums for thirty years so that his SBP was fully paid.41
Registration of SBP coverage is accomplished by the former spouse making a “deemed election” and filing the divorce decree with DFAS. This should also include a DD Form 2656-10 and should be sent to U.S. Military Annuitant Pay, P.O. Box 7131, London, KY 40742-7131. This must be filed within one year from the date of divorce.

This author represented a former spouse whose husband was required to effectuate the registration. Instead, he designated his second wife as beneficiary under SBP. That would not be changed so the court ordered that the former member establish an insurance policy for the former spouse which provides substantially equivalent benefits to her as would have been provided by SBP.42 In the case of Dugan v. Childers,43 the former spouse brought a contempt action against the member for failing to designate the former spouse as the beneficiary for SBP. The court granted the request of the former spouse. However, the member died before he could comply with the order. The Virginia Court held that the federal law preempted its order so the SBP was provided in accord with the member’s designation, not the order of the court.
Even if the former spouse is awarded SBP, if that former spouse remarries before age 55, SBP coverage is suspended. If that former spouse’s second marriage ends in divorce or death of the former spouse’s new spouse prior to age 55, the former spouse may apply to DFAS for reinstatement. Upon reinstatement costs for SBP will be reinstated, though they were suspended during the former spouse’s second marriage. There is a suggestion on an Air Force web site that “If the member dies during the period the former-spouse coverage is suspended because of the former spouse's remarriage before age 55, the former spouse would be eligible for the annuity in the event the remarriage subsequently terminated.”44 The author has not confirmed the position taken in this official web site.

XI. THRIFT SAVINGS PLAN45

The Thrift Savings Plan (TSP) is a Federal Government-sponsored retirement savings and investment plan. The National Defense Authorization Act for Fiscal Year 2001 extended participation in the TSP, which was originally only for Federal civilian employees, to members of the uniformed services, and members began enrolling on October 9, 2001.

The TSP offers the same type of savings and tax benefits that many private corporations offer their employees under so-called "401(k)" plans. The requirements for dividing a TSP account are fully set forth in booklet identified in footnote45. The court order requirements are found in 5 U.S.C. §§ 8435(c) and 8467, and 5 C.F.R. part 1653, subpart A.

XII. ACCRUED LEAVE

The issue of whether accrued leave is or is not a divisible marital asset is a matter of state law. The argument in favor of claiming it as an asset is that at the termination of a military career, as with pension benefits it is a predictable stream of income which is being provided while the member is no longer required to work. The other side of that issue is that accrued leave is in the nature of pay and should not be treated as an asset. In the case of Guilfoyle v. Guilfoyle, 1995 Va. App. LEXIS 24, 1995 WL 6387 (Va. Ct. App. Jan. 10, 1995) the Court of Appeals held that until the date of retirement accumulated leave was speculative. It also contemplated the provision of federal law which calculated a lump sum value and added that sum to retirement payments at the time of retirement, and, therefore, by that means is considered a division of such accumulated leave. Virginia appears to remain silent on the issue of whether a military member who uses his accumulated leave as terminal leave prior to release from active duty is depleting a marital asset. As to such use of accumulated leave a strong argument can be made that that is simply salary and not divisible.

XIII. MEDICAL BENEFITS

When a military member retires that member receives comprehensive medical benefits which have a value. It could be argued that such a benefit could be valued and be subject to evidence from an actuary or economist. This author is not aware of such argument being successful. The argument may have greater weight regarding the member’s income. Here the member’s living costs are reduced by usual and necessary medical expenses giving more income to pay spousal support.

A member’s spouse qualifies for similar medical benefits if that spouse is what is referred to as a “20/20/20.” This means that the former spouse will receive equivalent medical coverage and commissary and exchange privileges as those received by the retired member if the former spouse was married to the member for 20 years during which the member had 20 years of credible service. Remarriage by the former spouse may eliminate or suspend some of these benefits during the second marriage.

XIV. GI Bill

Beginning in 2009 unused GI Bill educational benefits have become transferable to spouses. There is an increase in the use of these benefits as part of the rehabilitation or enhancement of a former spouse in the work force. The use of the benefit arguably is available to offset spousal support claims. They should be reviewed by the client and counsel.

Endnotes

1 The author acknowledges consideration of the following materials in the preparation of this Article. Marshall S. Willick, Military Retirement Benefits in Divorce: A Lawyer’s Guide to Valuation and Distribution, Section of Family Law, ABA, 1998; Mark E. Sullivan, The Military Divorce Handbook, Second Edition, ABA, 2011; James N. Higdon, The Survivor Benefit Plan: Its History, Idiosyncrasies, Coverages, Cost, and Applications, ABA, Family Law Quarterly, Vol. 43 No. 3 (Fall 2009); Stephen C. Glassman, Divorce, Community Property and Military Pension Law: Dividing the Spoils,VSB, Virginia Lawyer, Vol. 46/No.5 (1997);

2 Stephen C. Glassman is a member of Glassman & Michael, PLLC, in Vienna, VA, Laytonsville, MD and Washington, DC. Mr. Glassman is a retired Navy Captain, having served as such in the Judge Advocate General’s Corps. He served in numerous command positions and as a court-martial judge. A focal point of Mr. Glassman’s practice has been international military and federal government personnel divorce law. He founded the Virginia State Bar Military Law Section, which is one of the largest and most active sections in the Bar. He has served as an expert witness in the area of military pensions. He has lectured on that topic before military commands, the Pennsylvania Bar, the Federal Bar Association, the Montgomery County Maryland Bar Association, the ABA Family Law Section, Military Law Committee, and in other venues.

3 Historically, there were a number of cases where the final divorce preceded the enactment of FUSPA. In Virginia no accommodation was allowed for division of a military pension. Thomas v. Thomas, 36 Va. Cir. 427; 1995 Va. (FFCo) Cir. LEXIS 1237 (1995). In California courts made extraordinary efforts to ignore the implications of the McCarty decision, and continue to permit California to divide military pensions. In re Marriage of Cuddy, Case No. H-54141-1 Cal. Sup. Ct (1991).

410 U.S.C. §1408(c) (1) (1997).

5 10 U.S.C. §1408 (a) (4) (B).

6 10 U.S.C. § 1408 (a) (4).

7490 U.S. 581, 109 S. Ct. 20203 (1989)

8 10 U.S.C. §1408 (c)(1) provides that “…a court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of jurisdiction of such court.” However, this retroactive authority did not apply to cases which were already final on June 25, 1981. Therefore, this section also provides: “A court may not treat retired pay as property in any proceeding to divide or partition any amount of retired pay of a member as the property of the member and the member’s spouse or former spouse if a final decree of divorce, dissolution, annulment, or legal separation (including a court ordered, ratified, or approved property settlement incident to such decree) affecting the member and the member’s spouse or former spouse (A) was issued before June 25, 1981, and (B) did not treat (or reserve jurisdiction to treat) any amount of retired pay of the member as property of the member and the member’s spouse or former spouse.”

9 10 U.S.C. § 1408 (c) (4).

10 19 Va. Cir. 231; 1990 Va. Cir. (FFCo) LEXIS 72

11 690 S.W.2d 626 (Tex. App. 3 Dist. 1985)

12161 Cal. App. 3d 365, 207 Cal. Rptr. 512 (1984).

13 Tucker v. Tucker, 277 Cal. Rptr. 403 (cal. Ct. App. 1991); Flora v. Flora, 603 A.2d 723 (R.I. 1992); Mortenson v. Mortenson, 409 N.W.2d 20, 13 FLR 1491 (Minn. Ct. App. 1987); Hattis v. Hattis, 242 Cal. Rptr. 410, 14 FLR 1113 (Ct. App. 1987).

14 466 So. 2d 32 (La. 1985).

15 Blackson v. Blackson, 40 Va. App. 507, 579 S.E.2d 704 (2003)

16 Colo. Ct. App., No. 95CA2144, 23 FLR 1151 (1/23/97).

17 The Court cited with favor In re Booker, 833 P.2d 734, 18 FLR 1433 (Colo. Sup. Ct. 1992); Steel v. U.S., 813 F.2d 1545, 13 FLR 1313 (CA 9 1987); and Lewis .v Lewis, 695 F.Supp. 1089, 14 FLR 1595 (DC New 1988) as standing for the proposition that § 1408(c) (4) is a limitation on a court’s subject matter jurisdiction over military pensions.

18 “Any member of the armed forces of the United States or any foreign service officer of the United States who (i) at the time the suit is commenced is, or immediately preceding such suit was, stationed in any territory or foreign country and (ii) was domiciled in the Commonwealth for the six month period immediately preceding his being stationed in such territory or country, shall be deemed to have been domiciled in and to have been a bona fide resident of the Commonwealth during the six months preceding commencement of a suit for annulment or divorce. “ Va. Code Ann. § 20-97

19 560 So. 2d 722, 16 FLR 1291 (Miss. Super. Ct. 1990). See also In re Hattis, 242 Cal. Rptr. 410, 14 FLR 1113 (Ct. App. 1987).

20 In re Mortenson, 409 N.W.2d 20, 13 FLR 1491 (Minn. Ct. App. 1987).

21 In re Akins, supra at 10 n.16.

22 Sullivan, supra at 2 n.3.

23 19 Va. App. 553; 453 S.E.2d 570 (1995).

24 251 Va. 168, 465 S.E.2d 838 (1996); 19 Va. App. 756, 454 S.E.2d 735 (Va. App. 1995).

25 10 USCS § 1408 (4) (D)

26 id at footnote 25

27 Lambert v. Lambert, 10 Va. App. 623, 395 S.E.2d 207, 209 (1990); Keough v. Keough, 1997 Va. App. LEXIS 301 (Record No. 2140-96-4) (Not designated for publication); Martin v. Martin, 385 Pa. Super. 554; 561 A.2d 1231 (1989); Miller v. Miller, 395 Pa. Super. 255; 577 A, 2d 205 (1990).

28 Owen v. Owen, 419 S.E.2d 267 (Va. Ct. App. 1992).

29 Bewlwy v. Bewlwy, 116 Idaho 845, 780 P.2d 596 (Ct. App. 1989); and Jones v. Jones, _Haw. App., 780 P.2d 581 (1989).

30 A brief and understandable discussion of these formulas appears in Mark E. Sullivan, The Military Divorce Handbook, Second Edition, ABA, 2011pp.473-477.

31 See Department of Defense, Financial Management Regulation, Volume 7B: “Military Pay Policy – Retired Pay,” Under Secretary of Defense (Comptroller), http://comptroller.defense.gov/Portals/45/documents/fmr/Volume_07b.pdf
This is the definitive regulation on military retired pay. It consists of over 600 pages and should answer or confuse any question one may have on retired pay. It does provide details to the calculation of retire pay.

32 Boedeker v. Larson, 44 Va. App. 508, 605 S.E.2d 764 (2004).

33 This can be modified downward based upon time spent on active duty after January 28, 2008.

34 10 U.S.C. § 1408(d) (2).

35 18 Va. App. 726: 446 S.E.2d 894 (Va. App. 1994)

36 444 Pa. Super. 507; 664 A.2d 551 (1995).

37 Havird v. Havird, 1995 Va. App. LEXIS 19 (Va. App. 1923-93-1, Record No. 0954-93-1).

38 Pa. C.C. § 3502.

39 Citation not included since case remains pending.

40 Citation not included since case remains pending.

41 It should be noted that SBP premiums becomes paid up if 360 payments have been made and the member is over 70. See 10 U.S.C. §1436a.

42 Godbolt v. Godbolt, Cir. Ct, Prince Georges County, Maryland, Case No. CAD 00-13843 and CAD 99-28256,(2005)

43 539 S.E.2d 723 (Va. 2001)

44 http://www.reitrees.af.mil/factsheetsw/factsheet.asp?id=11579, Posted 8/27/2014

45 https://www.tsp.gov/lifeevents/spouse/separation.shtml This site will lead you to the booklet “Court Orders and Powers of Attorney” dated September 2014.