The 2017 National Defense Authorization Act (NDAA) made an important change to the definition of disposable military retired pay in the Uniformed Services Former Spouses’ Protection Act (USFSPA) found at 10 U.S.C. § 1408. The change affects the division of property in divorce decrees or domestic relations orders dated December 23, 2016 and after. The USFSPA now limits disposable military retired pay that Courts may divide in divorce to the high-36 months’ base pay for the servicemember’s grade and years of service at the time of the court order. What does this change mean for military divorce in Texas? Nothing.
The Texas Supreme Court established more than 30 years ago that, when retirement benefits are divided in divorce, the division is based on the community interest at time of divorce.1 Even if a servicemember is on a promotion list, the Texas Supreme Court established that the division of property is limited to the actual rank at time of divorce.2 Texas’ approach to dividing military retired pay in divorce already is in perfect alignment with the 2017 NDAA’s change to the USFSPA.
So, if nothing changed for Texas, what is the significance of the 2017 NDAA’s change to the USFSPA? The significance is that Texas used to reflect the “minority approach.” In other words, the majority of states awarded a former spouse 50% of a fraction, the numerator being the number of months marriage during the servicemember’s military service and the denominator “floating” until the servicemember’s actual number of months service at retirement — multiplied by the servicemember’s retired pay at retirement. The majority approach produced a larger award of military retired pay to the former spouse. The theory behind the majority approach was that the servicemember’s later achievements stood on the shoulders of earlier achievements to which the former spouse contributed.3 The 2017 NDAA’s change to the USFSPA, therefore, eliminated the “minority / majority conflict” by making the “minority approach” Federal law. Now all States must divide military retired pay in divorce the same way as Texas has for decades.
Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC. The firm specializes in military divorce and clarification of prior orders for the division of military retired pay. Beyond military divorce, the firm provides a spectrum of family law-related services to clients in the greater San Antonio region, across the United States and throughout the world. The firms also provides Wills and Estates and Probate services.
Note1 — Berry v. Berry, 647 S.W.2d 945, 947 (Tex. 1983) (stating that retirement benefits are divided in divorce based on the community’s interest at divorce and benefits accruing after the divorce are not subject to division).
Note2 — Grier v. Grier, 731 S.W.2d 931, 932 (Tex. 1987) (holding that the community interest in military divorce is limited to the actual rank of the servicemember at time of divorce).
Note3 — Mark E. Sullivan, The Military Divorce Handbook, 536, 2nd edition, 2011.