Posts made in December 2019

“Magic Words,” Volume 2

Wording for military pension division orderThe last article on “Magic Words” pointed out the unique language required to effect a valid former-spouse election for the Survivor Benefit Plan. This exploration will cover life, not death.  When the military pension is divided by the court, the order which grants lifetime pension division can be a divorce decree, a settlement incorporated into the decree or a consent order, sometimes called a military pension division order (MPDO).  The order is required to have two special phrases (or what you might call “magic words”) to comply with federal law.

The Frozen Benefit Rule

The law, of course, is the federal statute which allows the division of military retired pay by state courts; that’s the Uniformed Services Former Spouses’ Protection Act, or USFSPA, located at 10 U.S.C. §1408.  An amendment in 2016 restricted the division of military retired pay to that which exists on the day of divorce.  The “Frozen Benefit Rule” thus limits any further growth of the pension by taking a snapshot at the time of divorce.  To provide information which the retired pay center needs to make this calculation, the law requires that every pension order state two data points: a) the High-3 pay of the servicemember on the date of the dissolution and b) the member’s years of creditable service (or, in the case of Guard/Reserve members, the date-of-divorce number of retirement points).  This rule applies, pursuant to 10 U.S.C. §1408 (a)(4)(A), to the military pension division cases where the divorce was granted after December 23, 2016 and the member was not receiving retired pay at divorce.

There is no exception if you’re within this window.  Congress did not leave a loophole for the parties to “consent otherwise.” Thus the husband and wife are not free to write their own agreement, since Congress has decided to tell them what they can do.

“High-3” Pay, Years of Service

The High-3 compensation of an individual is his or her highest three years of base pay, stated as a monthly amount (e.g., “John Doe’s High-3 at divorce was $4,567.89 per month”).  That will require a clear understanding of John Doe’s current rank and years of service, as well as his date of initial entry into military service (or DIEMS) and his last promotion date, unless counsel somehow “gets lucky” and obtains the appropriate number of past pay statements from the servicemember.  While not on a par with calculus, the computations are not easy for most attorneys.

The years of creditable service will depend on pay records (and other documents when there was a break in service).  Counsel must know the difference between DIEMS (see above) and the PEBD, or Pay Entry Base Date.  The retirement points calculation means that counsel must have access to John Doe’s annual Reserve/Guard points statement.

None of this is simple, and it’s often a wise idea to hire an attorney who’s “been around the block” with these problems a couple of times.  That’s what we call a co-pilot or – in the words of Tom Cruise – a “wingman.”  It’s also possible to attempt this alone by reading “Military Pension Division and the Frozen Benefit Rule: Nuts ‘n’ Bolts,” a Silent Partner infoletter which may be found at https://www.americanbar.org/groups/family_law/ > Military Law Committee, or at www.nclamp.gov > Publications.

All of this (and more) can be found at “The Frozen Benefit Rule” in Chapter 8 of THE MILITARY DIVORCE HANDBOOK (Am Bar Assn., 3rd Ed. 2019).

“Magic Words” in the Military Divorce

In “Jack and the Beanstalk” it is the “magic beans” that start the story.  In “My Cousin Vinny,” the best line in cross-examination features “magic grits.”  In military divorce cases, “magic words” are sometimes the answer.

There are several military pension division areas in which “magic words” or specific language can make the difference between success and defeat, between a happy client and a grievance (or worse!).  One of the most important places to focus on language is in the paragraph in the pension division order which deals with the Survivor Benefit Plan. Attorneys who represent the non-military spouse or former spouse know that providing for this survivor annuity is an essential part of a property settlement.

Whether the pension-division text is found in the divorce decree, an incorporated settlement, or a separate consent order (often called a Military Pension Division Order, or MPDO), the attorney representing the spouse or the former spouse (FS) must be sure that specific requirements are set out clearly in order to secure SBP coverage.  Without terms which anchor the SBP in the settlement, the retired pay center will deny the spouse or former spouse this substantial benefit, since the pension-share payments end when the servicemember or retiree dies.  [Note: The retired pay center is DFAS, the Defense Finance and Accounting Service, for Army, Navy, Air Force and Reserve retirees; for those retiring from the Coast Guard or the commissioned corps of the Public Health Service or the National Oceanic and Atmospheric Administration, it is the Coast Guard Pay & Personnel Center.]

SBP is an income-continuation program, not strictly speaking a part of the pension.  It allows the FS to continue receiving payments after the member’s death.  The amount paid is 55% of the selected base amount.  Payments constitute taxable income, and they increase annually with inflation through cost-of-living adjustments, or COLAs.

The basic language to be use – the “magic words,” if you wish – can be written quite simply into the instrument that divides the pension: “John Doe will immediately elect his wife, Jane Doe, for former-spouse Survivor Benefit Plan coverage.”  It’s that simple!

Those who want to put a bit of frosting on the cake can use some additional language.  Here are several add-ons to insert after the above sentence regarding SBP election:

  • “He will elect SBP for her using his full retired pay as the base amount.” [Note: The base can be anything from full retired pay down to $300 a month; failure to specify the base results in a base amount of one’s full retired pay.]
  • “He will make the election on DD Form 2656-1, will send a copy promptly to the retired pay center along with the divorce decree and any other order requiring former-spouse SBP coverage, and he will transmit a copy of these documents promptly to Jane Doe’s lawyer.” [Note: For members of the Reserves and National Guard, as well as their spouses, the forms need to be sent to that agency, not to the retired pay center; thus the Army Reserve office would be Human Resources Command at Ft. Knox, and the Air National Guard would be at Buckley AFB, Colorado.]
  • “Jane Doe may submit a deemed election to secure her SBP coverage, using DD form 2656-10.”

The addresses to use are on the forms.  The deadlines for submission of the necessary documents are one year from the divorce (for the member/retiree) and one year from the order requiring SBP coverage (for the former spouse.).

All of this (and more) can be found at “SBP – Choose It or Lose It” in Chapter 8 of THE MILITARY DIVORCE HANDBOOK (Am Bar Assn., 3rd Ed. 2019).

 

Mark E. Sullivan, COL, USA (Ret.)

Law Offices of Mark E. Sullivan, P.A.