Alamo Towers West, 901 NE Loop 410,
Suite 800,
San Antonio, TX 78209
Veteran Mother Comes Home

San Antonio, TX Family Law and Military Divorce Blog

Saturday, October 21, 2017

Clarifying Former Spouse Military Retired Pay Orders so DFAS can pay the Former Spouse—Part 3 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 the second part of this series, we looked 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).  To read the second blog before continuing with this final blog, click here.

In this final part, we'll look at what DFAS requires to clarify an order when the Servicemember is still serving at time of divorce.  When the Servicemember is still serving at time of a military divorce, a clarification must include the following:

  1. The former spouse's share of the community interest in the prospective disposable military retired pay;
  2.  The years and months of creditable military service at time of divorce; and,
  3. The Servicemember's high-36 months' base pay at time of divorce.

How we communicate the former spouse's share of the community interest was discussed in the second part of this series.  For convenience, we'll repeat it here, but using different assumed facts. (emphasis added).  Let's say, for example, that the Servicemember served at total of 15 years and 0 months of creditable service at divorce.  (i.e. 180 months of creditable service since 15 x 12 = 180).  Let's say, for example, that the marriage overlapped 13 years of the Servicemember's creditable military service (i.e. 156 months of marriage/military overlap since 13 x 12 = 156).  Under these assumed facts, the community interest would be 86.6667%, which is the product of 156 months of marriage/military overlap divided by 180 months of creditable service at time of divorce (i.e. 156 ÷ 180 = 86.6667%).5  So, one-half the community interest would be 43.3334%, which is the product of 50% x 86.6667%.1

The years and months of creditable service, as discussed in this scenario, are 15 years, 0 months of creditable military service.  DFAS uses the years and months of creditable service to calculate the Servicemember's hypothetical retired pay multiplier.  Since today's Servicemembers earn 2.5% of base pay for each year (or fraction thereof), this Servicemember's hypothetical retired pay multiplier is 37.5000% (i.e. 2.5% x 15 years and 0 months = 37.5000%).2

Calculating the high-36 months' base pay requires knowing the Servicemember's current rank, date of rank, and Pay Entry Base Date (i.e. the date from which longevity steps are calculated).  A detail explanation of the calculation is beyond the scope of this blog.  For purposes of our example, let's say the the Servicemember was a Major (i.e. 0-4) with a high 36 months' base pay on the date of divorce of $6,410.25.3

Taken altogether, the clarification award would read as follows:

IT IS ORDERED THAT THE FORMER SPOUSE HAVE JUDGEMENT AGAINST AND RECOVER FROM SERVICEMEMBER 43.3334% OF THE DISPOSABLE MILITARY RETIRED PAY THE SERVICEMEMBER WOULD HAVE RECEIVED HAD THE SERVICEMEMBER RETIRED AS ON 0-4, WITH 15 YEARS AND 0 MONTHS CREDITABLE SERVICE ON THE DATE OF DIVORCE, AND WITH A HIGH-36 MONTHS' BASE PAY ON THE DATE OF DIVORCE OF $6,410.25, WITH THE DATE OF DIVORCE BEING [FILL IN APPROPRIATE DATE].

What would be the former spouse's pre-tax award under this scenario?  It would be the product of (37.5% x $6,410.25 x 43.3334% (i.e. the hypothetical retired pay multiplier x the high-36 months' base pay on divorce x the former spouse's share of the community interest), or $1,041.00 as of the date of divorce. (emphasis added).

Any increases in retired pay the Servicemember earns after divorce due to longevity increases or promotion increases will be the Servicemember's separate property.4  Effectively, the former spouse's award would be increased by DFAS for retired pay COLAs from the date of divorce until the date of retirement, and after retirement.5  We'll pause here.

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.

Note1    See Department of Defense Financial Management Regulation 7000.14-R, Volume 7B, Military Retired Pay, Chapter 29, Former Spouse Payments from Retired Pay, Paragraph 290607 C., Acceptable Formula Award.

Note2    See Department of Defense Financial Management Regulation 7000.14-R, Volume 7B, Military Retired Pay, Chapter 29, Former Spouse Payments from Retired Pay, Paragraph 290608 C.1., Retired Pay Multiplier.

NoteSee Department of Defense Financial Management Regulation 7000.14-R, Volume 7B, Military Retired Pay, Chapter 29, Former Spouse Payments from Retired Pay, Paragraph 290608 D.2., Retired Base Pay.

Note4    — See Department of Defense Financial Management Regulation 7000.14-R, Volume 7B, Military Retired Pay, Chapter 29, Former Spouse Payments from Retired Pay, Paragraph 290213, Hypothetical Retired Pay Award.

Note5    — See Department of Defense Financial Management Regulation 7000.14-R, Volume 7B, Military Retired Pay, Chapter 29, Former Spouse Payments from Retired Pay, Paragraph 290608 H., Hypothetical Retired Pay Award.


Archived Posts

2018
2017
November
October
September
July
June
May
April
February
January
2016
December
November
October
September
August
July
June
May
April
March
February
January
2015
December
November
October
September
August
July
June
May
April
March
February
January
2014
December
November
October
September
August
July
June
May
April
March
February
January
2013



© 2018 Cramp Law Firm, PLLC | Disclaimer
Alamo Towers West, 901 NE Loop 410, Suite 800, San Antonio, TX 78209
| Phone: 210-762-4502

Practice Areas | Principles | Fees & Discounts | Attorney Bio

FacebookGoogle+TwitterLinked-In CompanyYouTube

Law Firm Website Design by
Zola Creative


×