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San Antonio, TX Family Law and Military Divorce Blog

Saturday, October 7, 2017

Clarifying Former Spouse Military Retired Pay Orders so DFAS can pay the Former Spouse—Part 2 of 3

In the first part of this series, we looked at why DFAS cannot honor an award of a percentage of the community value of military retired pay.  (emphasis added).  To read the first blog before continuing with this blog, click here

In this second blog, we'll look at what DFAS requires to clarify an order for the division of military retired pay when the Servicemember is already retired at time of divorce. (emphasis added). 

DFAS does not require a clarification order to calculate or provide the Servicemember's high-36 months' base pay when the Servicemember is retired at divorce.1  This high-36 month base pay is unnecessary because DFAS already calculated the Servicemember's entitlement to retired pay.2  In this instance, all DFAS requires is the former spouse's percentage award of the community interest in the retired Servicemember's disposable military retired pay.3  (emphasis added). The former spouse's share is usually one-half (i.e. 50%) of the community interest.4  

Now, how do we calculate the community interest?  Let's say, for example, that the Servicemember served 26 years of creditable service at retirement (i.e. 312 months of creditable service since 26 x 12 = 312).  Let's say, for example, that the marriage overlapped 18 years of the Servicemember's creditable military service (i.e. 216 months of marriage/military overlap since 18 x 12 = 216).  Under these assumed facts, the community interest would be 69.2307%, which is the product of 216 months of marriage/military overlap divided by 312 months of creditable service at time of retirement (i.e. 219 ÷ 312 = 69.2307%).5  So, one-half the community interest would be 34.6153%, which is the product of 50% x 69.2307%.6

Thus, the clarification order only has to say, "The former spouse is awarded a sum equal to 34.6153 percent of the Servicemember's disposable military retired pay."7  (emphasis added).  DFAS interprets any percentage award to automatically include cost of living adjustments or COLAs.8

Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  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 firm specializes in Federal Civil Service and Military Divorce matters.  The firms also provides Wills and Estates and Probate services.

Notes1,2    See Department of Defense Financial Management Regulation 7000.14-R, Volume 7B, Military Retired Pay, Chapter 29, Former Spouse Payments from Retired Pay, Paragraph 290211, Formula Award.

Note3    See Department of Defense Financial Management Regulation 7000.14-R, Volume 7B, Military Retired Pay, Chapter 29, Former Spouse Payments from Retired Pay, Figure 29.2, Award When the Member Has Already Retired From Active Duty or Reserve Duty.

Notes4,5,6  See Department of Defense Financial Management Regulation 7000.14-R, Volume 7B, Military Retired Pay, Chapter 29, Former Spouse Payments from Retired Pay, Paragraph 290211 A., Formula Award.

Note7    See Department of Defense Financial Management Regulation 7000.14-R, Volume 7B, Military Retired Pay, Chapter 29, Former Spouse Payments from Retired Pay, Figure 29.2, Award When the Member Has Already Retired From Active Duty or Reserve Duty.

Note8    See Department of Defense Financial Management Regulation 7000.14-R, Volume 7B, Military Retired Pay, Chapter 29, Former Spouse Payments from Retired Pay, Paragraph 290601 C., Content of Court Orders.


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