Military Divorce Guide

Welcome to the Military Divorce Guide, from the Colorado Springs military divorce lawyers at Black & Graham, LLC, with articles on dividing military retirement in a divorce, the Survivor Benefit Plan (SBP), VA disability payments, Servicemembers Civil Relief Act, former spouse benefits, understanding military pay, and much more.

U.S. and Colorado Military Divorce Laws

The Guide is aimed at lawyers and non-lawyers alike. Whether you're a soldier at Fort Carson, an airman at Peterson AFB or the Air Force Academy, stationed overseas, or are a family member or retiree, the Military Divorce Guide is written for you, with articles in plain English - no Latin or obscure jargon.

For attorneys who want to dig deeper, the Military Divorce Guide includes detailed discussions, statute and case citations, and we’re adding links when the laws are freely available on the web (the links are a work in progress). Most of the articles have nationwide applicability, but where specific state issues are discussed, we refer to Colorado military divorce law.

Military Family Law Explained

Divorce, paternity, or other family law cases involving military personnel present unique challenges which often require the assistance of a “military divorce lawyer” - an attorney with specialized knowledge of military family law. The term “military divorce” is not a legal one - it’s shorthand for a proceeding where one of the litigants is current or retired military.

To assist military clients, the lawyer should have at least a basic understanding of military concepts - jurisdiction over servicemembers, the unique rules which govern the division of military retirements, impact of deployments on parenting, whether combat related special compensation is divisible, ID cards and access to military benefits, etc. This Guide can help.

Some state-specific areas of family law practice rarely involved in the average family law case may be of utmost importance to a military divorce case - interstate jurisdictional issues, full faith and credit, relocation of children, etc. These state law issues are beyond the scope of this guide, but if you live in Colorado, they are addressed in our companion Colorado Divorce & Family Law Guide.

New Developments in Military Divorce Law

update

Keep Current! The Military Divorce Guide is periodically updated, and major updates and newly-added articles are highlighted in Military Updates, a blog for the latest military divorce and family law developments. We follow nationwide and Colorado legal developments to bring you up-to-date information.

If you have an idea for a military divorce article, feel free to contact us using the form on this page.

Share the Military Divorce Guide

If you found our Guide useful, others may too. You can help us, and help others find this Guide, by spreading the word. Click on our social links to share a page on Facebook or Google+, etc, or like us on Facebook. If you’re a webmaster, you can easily link to the Military Divorce Guide.

Colorado Springs Military Divorce Attorney

Make sure your attorney knows military divorce issues. Some self-proclaimed military divorce lawyers in Colorado Springs know surprisingly little about the military. But being a good family law attorney does not mean that one has the specialized knowledge necessary to be a good military divorce lawyer. Test your prospective military divorce attorneys’ knowledge by asking a few basic questions during your initial consultation. See this article on how to hire a military divorce attorney for more information.

If you need a military divorce attorney in El Paso County, we would be honored if you consider the law firm of Black & Graham. We know the military - about a third of our cases involve the military, and our veteran team of Colorado Springs military divorce attorneys is managed by Carl O. Graham, a former Army JAG attorney who authored the Military Divorce Guide, writes articles and teaches Colorado military divorce law to lawyers and judges throughout the state. Our lawyers have the training and experience to handle your case, and you can’t find a better or more experienced military divorce law firm in Colorado Springs.

We handle Fort Carson military divorces, and family law cases from Peterson AFB, the Air Force Academy, Schriever AFB, Cheyenne Mountain Air Station, and the Pikes Peak region.  We also offer a 10% military discount to all service members, military spouses, and retirees.

Jurisdiction Over Servicemembers

Before a state has the authority to grant a divorce, it must have both subject-matter jurisdiction over the case, and personal jurisdiction over the parties.

Subject-matter jurisdiction means that the particular state is the appropriate one to hear the case - e.g. people can't simply visit a state with which they have no contact, and obtain a divorce there simply because they like that state's divorce laws.  Simply put, it prevents forum-shopping.

Personal jurisdiction is power over the parties to the case.  If one spouse moves to, say, Texas, that state won't necessarily have jurisdiction to enter orders which affect the out-of-state spouse.

 

More Information

Requests for Military Mailing Addresses.  Contains each service's addresses where one can send a request for a servicemember's military mailing address.  (Formerly, the services had convenient worldwide locators, however these were shut down in the post-9/11 era).

Subject-Matter Jurisdiction

Before initiating a family law case, the state must have subject-matter jurisdiction over the case. For divorce, legal separation or annulment proceedings, this typically requires that either of the spouses be a legal resident (also known as "domicile" - the two are interchangeable in Colorado) of the state where the action is commencing.

In order for the Colorado divorce court to have subject-matter jurisdiction, C.R.S. 14-10-106(1)(A)(I) requires one of the spouses to be domiciled in Colorado for at least 90 days prior to filing for dissolution.

For civilians, legal residence is generally easy to determine - look at where the person lives. However, the same is not true for military personnel. Servicemembers PCS frequently, but their legal residence does not change by being stationed somewhere without more.

Colorado follows this principle. The Colorado Supreme Court has ruled that a servicemember who is present in Colorado pursuant to military orders, without more, is not a legal resident. Viernes v. District Court, 509 P.2s 306 (Colo. 1973).

Subject-matter jurisdiction is NOT waivable. So if you have two spouses, both in the military, with Texas and California as their states of residence, they cannot obtain a dissolution in Colorado, even if they were married here. Instead, they either have to get divorced in one of their states of residence, or one spouse must take steps to become a Colorado resident. The single most important step is completing a DD Form 2058, State of Legal Residence Certificate, which tells DFAS what state's taxes to withhold, and then filing income taxes in Colorado. Other possible steps are registering to vote, obtaining a Colorado driver's license, bank account, etc. Then, wait the requisite time frame (e.g. 90 days for a divorce) before filing.

 

Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act states that a servicemember who relocates solely in compliance with military orders does not lose his/her original domicile for purposes of:

Note that the Servicemembers Civil Relief Act does not explicitly address residence or domicile for purposes of court actions, however, it is likely persuasive on the issue of domicile, particularly in Colorado given the body of case law holding that military personnel need more than physical presence due to military orders to satisfy the residency requirements.

 

Military Spouses Residence Relief Act

In 2009, Congress enacted P.L. 111-97, the Military Spouses Residency Relief Act, which provides military spouses essentially identical rights as servicemembers on the issue of domicile.  So for purposes of taxation and voting, 10 U.S. Code §§571 and 595 have been modified so that a military spouse moving with a servicemember pursuant to military orders does not lose his/her original state of residence, providing that the spouse and servicemember have the same state of legal residence.

What this means is more complications for military divorces, as one cannot necessarily count on a civilian spouse living in Colorado as being a domicile of Colorado. Instead, it may take more to establish residence, as it does for a servicemember.

 

Personal Jurisdiction Over Servicemembers

Assuming the state has subject-matter jurisdiction, the state divorce court can obtain personal jurisdiction over a servicemember just as it can over a civilian:

  • Serving the servicemember within the state of Colorado,
  • The servicemember consented to jurisdiction by filing the petition for dissolution or legal separation or by signing a waiver and acceptance of service, or
  • Satisfying the requirements of the state's long-arm statute.  The Colorado long-arm statute, codified at C.R.S. 13-1-124, provides that Colorado has jurisdiction for child support and maintenance over a person who left the state providing that the petitioner-spouse has maintained continuous matrimonial jurisdiction since then.

 

Military Retirement

Personal jurisdiction over a servicemember alone may not be sufficient to give the state divorce court subject-matter jurisdiction to divide the military retirement. See Division of Military Retirement for more information.

 

 

Service of Process on Military Personnel

Many believe that the Servicemembers Civil Relief Act imposes additional requirements for service of civilian process.  It does not - there is no federal law requiring that serving military personnel is any different than serving civilians.

Army Regulation 27-40, Chapter 2 governs service of civilian process on military members.

 

Service of Process Within United States

Service off-post is solely governed by state law.

Service on-post depends upon whether the land is exclusive or concurrent jurisdiction:

  • Exclusive Jurisdiction - on land with exclusive federal jurisdiction, the state did not retain any jurisdiction over the land when it was ceded to the U.S.  An example of this land is the main cantonment area on Fort Carson.  On such land, the Army will determine whether the servicemember wishes to accept service voluntarily, and if so, will cooperate to effect service of process.
  • Concurrent / Proprietary Jurisdiction - land where the state withheld some or all jurisdictional rights when the land was ceded to the U.S. (e.g. on the U.S. Air Force Academy the state of Colorado shares concurrent jurisdiction with the federal government), if the servicemember does not voluntarily accept service, then the military will allow the requesting party to service the military member.

Generally the provost marshal's office on each installation is tasked with cooperating with service of civilian process, and will be the initial point of contact.

 

Service of Process Overseas

Service of host-nation legal paperwork is typically governed by the Status of Forces Agreement (SOFA) or other agreements between the U.S. and host nation.

Service of U.S. state court paperwork is similar to serving on exclusive federal land - the Army, for example, will first ascertain whether the servicemember will voluntarily accept service.  If not, the requesting party is advised that he/she must comply with the requirements of the host nation or Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. U.S. consular officials will not ordinarily assist in overseas service of legal process.  22 C.F.R. §92.85.

For information on service in a particular country, the U.S. Department of State has a helpful web page with a country-by-country index detailing service (and, if applicable, translation) requirements.

 

Deployed Servicemembers

How do you serve a military member who is deployed?  Forget about it.  Unless the servicemember is willing to accept service of process, or are real close friends with someone in his/her unit who would risk alienating the servicemember by serving him/her (and the command won't help), there is effectively no practical way to serve a deployed servicemember.

Moreover, thanks to the Servicemembers Civil Relief Act, even if you could serve a deployed servicemember, the case would likely be stayed until the deployment was over anyway.  So if you're trying to get quick service, as an example to preserve a date for retroactive child support, you better try to serve the person before the deployment.

 

Division of Military Retirement

A servicemember's military pension is often the most valuable asset in a Colorado divorce, legal separation or annulment. Since it is an asset, states can divide military retirements just like any other marital asset, as long as the Court has jurisdiction.  Each spouse should therefore know how Colorado divorce courts handle the division of military pensions, VA Disability, and issues concerning the Survivor Benefit Plan (SBP).

 

Jurisdiction to Divide Military Retirement

In 1982, Congress enacted the Uniformed Services Former Spouses' Protection Act (USFSPA) which permits, but does not require, state courts to divide military retirement upon divorce, legal separation or annulment. 10 U.S. Code §1408.

However, in order to divide the military pension, the Court must have jurisdiction over the servicemember, either by his consent, or by his legal residence in the state.  Simply being stationed in a state, even being personally served with divorce paperwork, is not sufficient.  However, consent does not have to be expressly given - the Court may infer consent, even from one's active participation in the dissolution proceedings, such as by filing a motion to modify child support.  In re: the Marriage of Booker, 833 P.2d 734 (Colo. 1992).

As this is federal law, Colorado courts have held that it preempts state law, and absent consent or domicile, the Colorado divorce court lacks jurisdiction to divide retirement.  Consent cannot be inferred simply from the failure to object to jurisdiction. In re: the Marriage of Akins, 932 P.2d 863 (Colo. App. 1997).

What happens to the military retirement of a servicemember who is stationed in Colorado, but a legal resident of a different state?  Is it beyond the reach of the courts?  No - rather, it means that unless the servicemember consents to Colorado dividing the retirement, the spouse can simply file a petition in the servicemember's home state, and ask that state to divide it instead.

 

The Myth About Dividing Military Pensions

First, to dispel the myth, as long as they have jurisdiction, any state, including Colorado, can and will divide a servicemember's military retirement, regardless of the length of the marriage.  Courts in foreign nations cannot divide military retirements.

Nowhere is the Colorado divorce court's authority to divide military retirement limited by the length of marriage. Many people, including some family law attorneys, believe that military retirement is only divisible if the marriage lasted at least 10 years.

What the USFSPA actually states is that the Defense Finance and Accounting Service (DFAS) will pay directly the former spouse's share of the military retirement if there were at least 10 years of marriage overlapping 10 years of creditable military service (the "10/10 rule").

State courts divide military retirement for couples with fewer than 10 years of marriage all the time - it simply means that the servicemember actually has to cut the check to pay the civilian spouse, rather than DFAS making the payments.

There are periodic attempts to modify, or even eliminate, the 10/10 rule, so DFAS would pay the former spouse a court-ordered share of the retirement regardless of the length of the marriage.  The last such attempt was back in 2006 (see this article for information).  However, an attempt to revisit the USFSPA results in veterans' groups, women's groups, and others fighting over other changes they'd like to see, and the resulting fighting and controversy ultimately kills the chances of any change.

 

More Information:

Military Pay & Benefits Web Site, run by the Office of the Secretary of Defense. Describes the types of military retirement, and has a retirement calculator for each type.

DFAS Military Retirement Home Page. A wealth of information about military retirements, directly from the source!

Thrift Savings Plan web site. Obtain statements, view publications, etc.

Domestic Violence Victim Benefits for information on a spouse victim's entitlement to military retirement.

Types of Military Retirement

Military retirement comes in three "flavors" depending upon when the servicemember entered active duty.  DOD Financial Management Regulation, Volume 7B, Chapter 3, Section 030301, which also has details about everything you ever wanted to know about calculating military retirement.

A minimum of 20 years creditable service is needed to retire. Note that retirement is calculated using base pay only, and not allowances such as BAH or BAS.

  1. High-3. (Most common type now - applies if entered service from 9/8/1980 onwards). Similar to the Final Pay system, except the 2.5% multiplier is applied against the average basic pay for the highest 36 months of the servicemember's career (generally will be the final three years, unless the servicemember has been reduced in grade administratively or at a court-martial). A COLA is given annually, based upon the Consumer Price Index.
  2. Final Pay. (Prior system - applies if entered service before 9/8/1980). Each year of military service is worth 2.5% towards the retirement multiplier up to a maximum of 75%. A servicemember retiring at 20 years receives 50% (20 years x 2.5%) of his/her final basic pay. A COLA is given annually, based upon the Consumer Price Index.
  3. REDUX. (Entered service from 8/1/1986 onwards, if the servicemember elected to receive the Career Status Bonus). Each year of the first 20 is worth 2% towards the retirement multiplier, and each year after 20 is worth 3.5%. The multiplier is then applied against the average basic pay for the highest 36 months. Thus, a servicemember retiring at 20 years receives only 40% (20 years x 2%), but it increases to 75% at 30 years (40%, plus 10 years x 3.5%). A COLA is given annually, but it is 1% below the Consumer Price Index (with a recalculation at age 62). This complicated mess is the least favorable of the three types of military retirement.

 

Thrift Savings Plan (TSP)

Servicemembers may now contribute up to 7% of their basic pay to a Thrift Saving Plan, but with no matching funds from the federal government. In a nutshell, it is similar to a private sector 401(k) plan in that taxes are deferred on the contributions and appreciation until disbursement.  Contributions to a TSP do not affect the right to receive "standard" military retirement. And the divorce judge must sign a Qualified Domestic Relations Order to divide the TSP, which is separate and distinct from the division of military retirement in Colorado.

For more information on Thrift Savings Plans, see the TSP web site.

Disposable Retired Pay

Per 10 U.S. Code §1408(a)(4), a state divorce court is authorized to divide a servicemember's disposable retired pay.  This is the total pay (aka "gross pay"), minus the following:

  1. Amounts owed to the government for previous overpayments (not common),
  2. Forfeitures adjudged by a court-martial (even rarer),
  3. Pay waived to receive VA disability (common), and
  4. SBP premiums for the benefit of the former spouse seeking a share of the retirement (common).

 

Bonuses or Benefits in Lieu of Military Retirement

The most common benefit in lieu of retirement is when a servicemember receives VA disability, and must waive some of the military retirement to receive those payments.  See VA Disability & Divorce for more information.

The military has a variety of methods to separate servicemembers from active duty before retirement which may result in separation pay or other benefits in lieu of retirement. Should this occur, the Colorado divorce court may award the former spouse a portion of the benefit or bonus received in lieu of retirement.  As an example, if a servicemember separates with VSI or SSB benefits instead of a retirement, those benefits are divisible by the Colorado divorce court.  In re: the Marriage of Heupel, 936 P.2d 561 (Colo. 1997).

Sometimes, a retiree working for the federal government may merge the military pension into a federal civil service pension.  In that event, the Court will need to retain jurisdiction to protect the spouse's right to receive the retirement.

The FY2000 National Defense Authorization Act introduced the Career Status Bonus. Formerly, servicemembers who entered active duty after 8/1/1986 were forced into the relatively unfavorable REDUX system. Now, those same servicemembers will fall under High-3, but can elect to receive a $30,000 lump sum Career Status Bonus at 15 years, and thereby opt for the REDUX retirement system. This election obviously has consequences for the civilian former spouse, as it reduces the value of his/her portion of the military retirement.  These payments may be divided by the Colorado divorce court.

 

Colorado Military Retirement Division in Divorce

In 1988, the Colorado Supreme Court ruled that military retirements, like other pension plans, are "property" and therefore subject to division upon divorce. In re: the Marriage of Gallo, 752 P.2d 47 (Colo. 1988).  Military pensions from divorces prior to that decision are not subject to division in Colorado, as the Gallo decision may not be applied retroactively. In re: the Marriage of Booker, 833 P.2d 734 (Colo. 1992)

 

Hunt Formula

Seven years after Gallo, the Court refined the formula for the division of military retirement. In re: the Marriage of Hunt, 909 P.2d 525 (Colo. 1995). The Colorado divorce court will award the spouse one-half of the marital portion of the disposable retired pay.  The martial portion is calculated as follows:

Months of marriage overlapping service
-----------------------------------------------------
Total months of military service at retirement

Example:

  • Assume a couple was married for exactly 12 years (144 months) overlapping creditable military service, and the servicemember retired at 20 years (240 months).
  • The marital portion would be 144 / 240, or 60% of the servicemember's disposable retired pay. The former spouse would therefore receive half of that, or 30%.
  • The servicemember receives the remaining 70%, which consists of the other half of the marital share (30%), plus his separate property interest (40%).

This formula is known as the Hunt formula, but is sometimes referred to as the Hunt/Gallo formula, or the coverture formula.

Reserve component retired pay is treated in a similar fashion, except that the formula is based upon points, rather than months.

 

Awarding Under 50% of Marital Share

In the companion case to Hunt, a servicemember argued that his wife should receive less than half of the marital share of the military retirement since she only provided "lukewarm" support to his career. The Colorado Supreme Court rejected that position on the division of military retirement, and awarded the spouse a full 50% of the marital share, on the grounds that the division of military retirement in Colorado must be made without regard to fault.

So how can a servicemember prevent the court from allocating the former spouse one-half of the marital portion in Colorado? Only through negotiation. Period. Unless the former spouse voluntarily agrees to waive a claim to military retirement, a court in Colorado is required to divide it and award the former spouse 50% of the marital portion.

 

Servicemember Still on Active Duty

If the servicemember is still on active duty at the time of dissolution, under Hunt a Colorado divorce court can:

  1. Try to figure out the retirement's net present value, and offset it against other marital assets,
  2. Determine the Hunt formula in advance, but defer distribution until retirement, when the denominator can be established (the common method), or
  3. Reserve jurisdiction altogether (essentially, wait and see what happens until retirement).

The net present value method is use more frequently with larger marital estates, where there are other assets to offset against the military retirement, or with relatively brief marriages, where the martial share of the retirement is not worth much.  It's not commonly used without the parties' mutual consent, but a divorce court can use this method if it chooses, even if the servicemember is not yet retired, and the military pension is not yet vested. In re: the Marriage of Riley-Cunningham, 7 P.3d 992 (Colo. App. 1999).

The deferred jurisdiction method is the most common.  A typical decree of dissolution in Colorado will see the numerator of the formula defined (e.g. 144 months), but instead of utilizing a numerical denominator, will instead define the denominator as the servicemember's total months of active duty at the time of retirement.  Note that DFAS can now provide the denominator, so if the order is otherwise properly written and satisfies DFAS requirements, then there is no longer a need for a clarifying order upon the servicemember's retirement.  DOD Financial Management Regulation, Volume 7B, Chapter 29, Section 290607.C.

 

Post-Divorce Promotions, COLAs, etc

The Hunt formula explicitly authorizes the former spouse to share the benefit of future promotions and COLAs. This was done not only for mathematical simplicity, but to compensate the former spouse for having no control over the date of retirement, or even the size of the marital portion (which decreases the longer the servicemember remains on active duty after dissolution).

DFAS also will make direct payment to the spouse based upon the percentage of the servicemember's actual retired pay.  So while spouses are permitted to agree to a different basis for division (e.g. a percentage of the retired pay based upon the servicemember's pay grade at the date of divorce), it makes the calculations more complicated.

 

Direct Retirement Payments from DFAS

A former spouse who meets the 10/10 rule (at least 10 years of creditable service overlapping 10 years of creditable military service, per 10 U.S. Code §1408(d)(2)) can apply for direct payment from DFAS of his/her portion from the division of military retirement (if Army, Navy, Air Force or Marines), at:

DFAS-Cleveland Center
DFAS-HGA-CL
PO Box 998002
Cleveland, Ohio 44199-8002

Fax:  877-622-5930 or 216-522-6960

Because military retirement is a federal entitlement, not a qualified pension plan, no Qualified Domestic Relations Order is required - simply send DFAS a DD Form 2293, Application for Former Spouse Payments from Retired Pay, together with a certified copy of the court order dividing the military retirement (certified within two years, per the DOD Financial Management Regulation, Volume 7B, Chapter 29, Section 290401).

Per the DOD Financial Management Regulation, Volume 7B, Chapter 29, the order should contain the following:

  1. An indication that the servicemember's rights under the Servicemembers Civil Relief Act (formerly the SSCRA) were respected, if the dissolution was finalized while the servicemember was still on active duty (Section 290602),
  2. An indication of the Colorado divorce court's jurisdiction over the servicemember (either residence, domicile, or consent to jurisdiction, including not contesting jurisdiction) (Section 290604),
  3. The percentage share (or, less commonly, the dollar amount) awarded to the former spouse (Section 290601), and
  4. The marriage date, and an indication that the 10/10 rule has been met (Section 290402).  This is a "best practice", and not a strict requirement. Failure to include this information in the order will mean the former spouse must submit additional documentation verifying 10/10 eligibility.

It will take about 90 days to receive the first payment. Upon receipt of the application, DFAS must first send the servicemember notice, and he/she then has 30 days to contest payment.

Creditable Service Defined

Creditable service means, for active duty, years of service for which the member was eligible for pay, except as specifically excluded.  10 U.S. Code §1405.  Excluded time, under 10 U.S. Code §972 includes time in AWOL status, time incarcerated, or time lost due to an injury caused by the member's misconduct.

Creditable service for a reservist is any year in which the member accrued at least 50 points.  10 U.S. Code §12732(2).  Simplistically, reservists get 15 points annually for being in the reserves, plus 1 point per day of actual service.

Moreover, if a spouse is married for at least 10 years overlapping military duty, it doesn't matter if those 10 years are all active, all reserve, or a combination of both, according to a 2008 ruling from the Defense Claims Board (link to opinion coming).

Maximum Payments from DFAS

The maximum portion of a retirement that DFAS will pay a former spouse as part of a property division is 50% of the servicemember's disposable retired pay. This does not prevent a Colorado divorce court from dividing the military retirement and awarding a former spouse more than half (theoretically possible, but never seen it happen).  Should a servicemember be in that unlucky situation, he/she will have to make up the difference between what DFAS pays directly and the divorce court's division of military retirement.

In cases where military pay is both awarded to a former spouse as a property division, and subject to garnishment for child support or maintenance, per the DOD Financial Management Regulation, Volume 7B, Chapter 29, Section 290901, the maximum DFAS will pay the former spouse directly is 65% of the retiree's disposable earnings calculated consistent with 42 U.S. Code §659 (not the same as disposable retired pay).

As with any judgment, should the amount DFAS pays the former spouse directly not be sufficient to cover the amount owed, the retiree is required to make up the difference between the amount DFAS paid out and the ordered amount.

 

Garnishing Military Retirement Arrears

DFAS will only pay the former spouse directly the present retirement payments which are due, not any arrears which may have been awarded.  DOD Financial Management Regulation, Volume 7B, Chapter 29, Section 290304.

 

More Information

DOD Financial Management Regulation, Volume 7B, Chapter 29, "Former Spouse Payments From Retired Pay".  This easy-to-read regulation, cited heavily in this article, sets out clearly what DFAS requires to pay the former spouse a share of the military retirement, and includes sample clauses and hypotheticals.

VA Disability & Divorce

When a servicemember retires with disabilities, the Department of Veterans Affairs may pay compensation, known as VA disability, depending upon the disability rating.

The advantage to the servicemember is that VA disability payments are not taxable. Furthermore, since they are excluded from the disposable retired pay, Colorado divorce courts cannot, strictly speaking, divide the disability payments (the reality may be different, however, as explained herein).  Also, tax-free should not be confused with invisible for any purpose - VA disability payments count as income for the purpose of calculating child support and maintenance.

Note that the payments are not automatic - like everything else in the military, there is a process, and this one requires that the retiree affirmatively apply for disability payments.  38 U.S. Code §5101.  The specific form used is the VA Form 21-526, Veteran's Application for Compensation and/or Pension.  This is important on the issue of indemnity for the VA waiver, as it shows that any resulting waiver of retirement to receive the disability payments was voluntary.

And the VA disability election is revocable, per section 120205 of the DOD Financial Management Regulation.  Presumably a veteran would have little incentive to do this, unless to facilitate receipt of Combat-Related Special Compensation (CRSC) or per court order.  Doing so requires filling out the same VA Form 21-526.

 

VA Disability Payment Rates

The VA awards a disability rating, which, along with the number of family members, determines the amount of the servicemember's.  As an example, as of December 2013, a married servicemember with one child and a 70% rating receives $1505.66 per month in VA Disability payments.  See VA Compensation & Benefits Rate Tables to look up the disability payment amounts.

The disability rating is not connected to a servicemember's rank, or, contrary to popular misconception, to how much retirement a member receives.

The rating is used strictly to determine the dollar amount of the disability payment, and all veterans with the same rating and same number of family members will receive the same VA disability pay, regardless of their rank at retirement. A retired general officer with a 70% rating receives the same $1505.66/mo in disability as a retired E-6 with a 70% rating.

 

More Information

Retiree and Annuitant Pay: Disability Benefits, on the DFAS web site.

Concurrent Receipt (CRDP) Pay Computation.  A chart to calculate the restoration of the VA Waiver during the phaseout period.

Denver, Colorado Military & Veterans Lawyer.  Michael L. Shea has a web site with useful information for veterans.

VA Waiver of Military Retirement

Traditionally, federal law prohibited "concurrent receipt" of both VA Disability and military retirement, which meant a retiree had to "waive" military retirement, dollar for dollar, for VA Disability.  So while an E-6 at 20 years of service might have waived virtually the entire military retirement with the 70% disability rating mentioned above, it would be a much smaller of the retirement for an O-6 with 30 years of service.

Federal law still requires a servicemember to waive military retirement dollar-for-dollar to receive VA disability payments for retirees with a non-combat-related disability rating below 50%.  10 U.S. Code §5304, and 10 U.S. Code §5305.

 

Concurrent Retirement & Disability Pay (CRDP)

In 2003, Congress modified 10 U.S. Code §1414, and relaxed the concurrent receipt prohibition for many retirees. A 10-year phaseout off the VA waiver for retirees with at least a 50% disability rating started in January 2004, so as of 2014, their waiver is now entirely gone.

Originally, the waived pay was restored using a separate payment called CRDP, but now CRDP is simply an accounting mechanism by which the waived retirement is restored.

What does this mean for Colorado divorce cases? It means that a military retiree with a 50% or higher disability rating will receive VA disability payments, which are not divisible by the family law court, plus a full retirement, which does remain divisible.

Military retirees with a disability rating below 50% will still have to waive, dollar for dollar, their retired pay to receive VA disability payments.  And this means divorce courts will still have to deal with the indemnity issue, even after the phaseout is completed.

 

More Information

Combat-Related Special Compensation (CRSC), a Military Divorce Guide article on CRSC, which is an alternative means of offsetting the VA waiver.

Indemnity for VA Waiver

Disabled does not mean wheelchair-bound. It is fairly common for servicemembers who appear able-bodied to retire with at least some portion of their retirement paid as disability. Colorado divorce courts, frustrated that they were prohibited from dividing VA disability, often did an "end-run" around that prohibition by awarding the civilian former spouse increased maintenance to compensate for the reduced disposable retired pay.

 

Pre-Dissolution Disability Payments

Federal law prevents states from dividing VA disability payments.  Mansell v. Mansell, 490 U.S. 581, 109 S.Ct. 2023, 104 L.Ed.2d 657 (1989).

Colorado has similarly ruled that divorce courts cannot divide VA disability payments, nor require the servicemember to indemnity the spouse for a VA waiver of retired pay.  In re the Marriage of Franz, 831 P.2d 917 (Colo. App. 1992).

However, this prohibition on indemnifying for the VA waiver applies to what is known as prejudgment waiver" of pay.  That means if, at the time of a divorce, there was already a VA waiver in effect (i.e. the servicemember received the VA disability determination prior to the dissolution of marriage), the divorce court cannot divide the disability payments, nor require indemnity for the waiver.

But the same does not hold true for what is known as a "post-judgment" VA waiver. . .

 

VA Disability & Colorado Military Divorces

In a post-judgment waiver situation, at the time of the divorce when the spouse was awarded a share of the military retirement, there was no VA disability determination, and therefore no waiver.  Often this may be because the servicemember is still on active duty.  However, at some stage after the divorce, the servicemember received a VA disability determination, either because he/she finally retired, or because the servicemember was already retired, but then applied for a disability determination.

In these situations, what was once the unofficial practice of judges to indemnify the spouse for the VA Waiver has now become the law of the land in the majority of states which have considered the issue, including Colorado.

In Colorado, the process began in 2004 with In re the Marriage of Lodeski, 107 P.3d 1097 (Colo. App. 2004), a decision which required indemnity where the order dividing the retirement also specified a dollar amount owing.

In 2006, the indemnity requirement was expanded to all cases where the servicemember, post-judgment (i.e. after the divorce) waived a portion of the retired pay to receive VA disability payments.  In re the Marriage of Warkocz, 141 P.3d 926 (Colo. App. 2006).  Now, in Colorado as well as a majority of states, the military retiree who has a VA waiver is required to compensate the former spouse, dollar for dollar, for the reduced military retirement due to the VA waiver.

 

Combat-Related Special Compensation (CRSC)

Congress enacted Public Law 107-314 in 2002 (codified at 10 U.S. Code §1414) which created Combat-Related Special Compensation (CRSC)CRSC is a variation of a mechanism called "concurrent receipt" which was previously the accounting mechanism used to compensate certain retirees for the military retirement waived to receive a VA disability payment.

Put simply, CRSC can result in eligible retirees receiving both (1) their full disability pay, plus (2) the equivalent of up to their full military retirement.

 

CRSC vs. CRDP

CRSC serves a similar purpose to Concurrent Retirement and Disability Pay (CRDP), in that both programs compensate for military retirement which is lost due to the VA waiver.  But they have a few key differences:

  1. CRSC requires that the disability be combat-related (see below), whereas with CRDP any service-connected disability is sufficient.
  2. CRSC requires only a 10% or greater combat-related disability rating, whereas a retiree is not eligible for CRDP unless the rating is at least 50%.
  3. CRSC payments are tax-free, whereas CRDP, since it effectively is just restoring taxable military retirement payments to the retiree, is taxable.
  4. CRSC payments are not military retirement, so there is no provision by which family law judges can divide the payments.  DOD Financial Management Regulation, Volume 7B, Chapter 63, Section 630104.  They are not exempt from garnishment for child support or alimony, however.  (DFAS FAQ).

Finally, CRSC and CRDP are mutually-exclusive - the retiree can elect either one, but not both of them.  10 U.S. Code §1414(d). It often makes more sense for the retiree to opt for CRDP instead of CRSC - for example a retiree who has a 70% service-connected disability rating, of which 10% is combat-related, would no longer have a VA waiver using CRDP, so is probably better off foregoing CRSC.

Conversely, a retiree with a 40% disability rating, all of which is combat-related, is not eligible for CRDP, so but-for CRSC would be out the retred pay waived to receive VA disability.

Finally, note that the retiree can change his/her election each year during an "open season" in December & January.

 

CRSC Eligibility Requirements

First, the retiree must have a combat-related disability, which pursuant to 10 U.S. Code §1413a(e) means:

  • An injury for which the Purple Heart was awarded, or
  • The disability is as a direct result of armed conflict, hazardous service (parachute duty, demolition, etc), conditions simulating war (i.e. war games), or through an instrumentality of war.

Note that an injury which simply occurs in a combat zone, but is not actually combat-related (e.g. a servicemember in Iraq permanently damages something while playing volleyball) does not qualify for CRSC.

The other significant requirements to receive CRSC are:

  1. The combat-related disability is at least 10%.
  2. The retiree is receiving normal military retirement, is medically discharged, is on the Temporary Disability Retired List (TDRL) or is receiving Temporary Early Retirement (TERA).
  3. The retired pay is being reduced by a VA waiver.

 

CRSC Payments

Because CRSC is intended simply to mitigate the effects of the VA waiver, payments are capped at the lower of:

  • The amount of VA disability the retiree would receive for the same disability if it were not combat-related disability (see VA rate table),
  • The amount of the VA waiver in effect.

 

More Information

CRSC Guidance, a Department of Defense memorandum with exhaustive information about CRSC eligibility and the application process.

Army CRSC Page, the point of contact for soldiers at the U.S. Army Human Resources Command.

Combat-Related Special Compensation Board, the point of contact for the Navy & Marines.

Air Force Personnel Center, the point of contact for airmen.

Personnel Service Division, the link for the U.S. Coast Guard.

Disability Retired Lists (TDRL / PDRL)

A servicemember with fewer than 20 years of service are placed on either a temporary or permanent disability retired list if he/she is:

  1. Is unfit for service, and
  2. Has a 30% or greater disability rating.

 

Temporary Disability Retired List (TDRL)

See 10 U.S. Code §§ 1202 & 1205.  Intended for servicemembers whose medical conditions may only be temporary.

A servicemember can remain on the TDRL for up to five years, with medical evaluations every 18 months to determine whether

  1. The disability has stabilized and become permanent, or
  2. The servicemember is then fit to return to active duty.

After being on the TDRL for five years, a servicemember who remains unfit for duty is either:

  1. Retired for longevity, if eligible (i.e. 20 years of service),
  2. Put on the Permanent Disability Retired List if he/she has under 20 years of service,
  3. Medically separated with severance pay if the disability is under 30%.  The severance pay is typically calculated by multiplying years of active service by twice the servicemember's monthly base pay at the time of removal from the TDRL.  (For the complete calculation guidelines, see the DOD Financial Management Regulation, Volume 7B, Chapter 11, Section 110201.)

Note that time on the TDRL does NOT count towards the longevity retirement.  So a servicemember with 17 years of service who is placed on the TDRL, and remains there for five years, still has just 17 years of creditable service, not 22 years, so cannot receive the normal 20-year retirement.

Amount of TDRL Payments

Pursuant to 10 U.S. Code §1401, a servicemember on the TDRL receives the greater of either (1) 2.5% x base pay x years of service, or (2) base pay x disability %.  So a servicemember with 20 years of service but a 30-40% disability is better off with the longevity option, and a more disabled servicemember with fewer years of service is better off with the straight disability calculation.

 

Permanent Disability Retired List (PDRL)

See 10 U.S. Code §§ 1201 & 1204.  It's intended for servicemembers who meet the following criteria:

  1. The medical condition is permanent,
  2. The disability is at least 30%, and
  3. The servicemember has fewer than 20 years of service.

 

Amount of PDRL Payments

The amount of disability retirement is calculated by taking what the servicemember's retired pay would have been, and multiplying it by either (1) the years of service x 2.5%, or (2) 75%, at the servicemember's option.  DOD Financial Management Regulation, Volume 7B, Chapter 3, Section 030102.

 

More Information

May 2007 Retired Pay Newsletter, published by DFAS.

Removal from the Temporary Disability Retired List, from the DOD Financial Management Regulation.

Separation or Retirement for Physical Disability, DOD Directive 1332.18.

Physical Disability Evaluation, DOD Instruction 1332.38.

 

TDRL & PDRL in a Colorado Divorce

 

TDRL and PDRL payments are not divisible by the divorce court in Colorado!

This may appear strange, especially since a retiree who, after the divorce, begins to receive VA disability and has to indemnify his/her spouse for the reduction in retired pay due to the VA Waiver.  But the Colorado Court of Appeals has twice held that the spouse was not entitled to a share of the servicemember's TDRL payments.

 

TDRL with Fewer Than 20 Years Service Not Divisible in Divorce

The ruling from In re: the Marriage of Williamson, 205 P.2d 538 (Colo. App. 2009) was that all of the servicemember's pay which is based upon the member's disability is excluded from division.  Because in that case the servicemember had fewer than 20 years of service, he was not eligible for a 20-year retirement.  But for the servicemember's disability, he would not have been eligible to receive any benefits.  Therefore, all of his pay was due to the disability, and therefore his entire disability pay was excluded from division.

Although the Williamson court did not explicitly address PDRL, since PDRL is only available to servicemembers with fewer than 20 years of service, the rationale of that ruling - that there's no retirement to divide if a servicemember has fewer than 20 years of service - would seem to be equally applicable to PDRL payments.

 

TDRL with Over 20 Years of Service May be Partially Divisible

In a follow-up decision, the Colorado Court of Appeals ruled that the divorce court cannot divide the TDRL of a servicemember with more than 20 years of service.  In re: the Marriage of Poland, 264 P.3d 647 (Colo. App. 2011).  The court there determined that the portion of the payments which were attributable to TDRL (i.e. the disability portion) were not divisible, and to the extent the servicemember received any excess, only that excess payment was divisible:

"We conclude, based on 10 U.S.C. § 1408(a)(4)(C), that an amount equal to the amount of TDRL pay, as calculated based on husband's percentage of disability when he was placed on the TDRL, must be excluded from the marital property, but that any amounts in excess of that amount may be divided under the decree."

What does this mean?  Consider two hypothetical examples for a servicemember with a base pay of $5000/mo:

(1) Assume 10 years of service, and an 80% disability rating.  The longevity formula pays the servicemember $1250/mo (2.5% x 10 x $5000), but the disability formula would pay him $4000/mo (80% x $5000).  Under the Poland ruling, the servicemember's entire $4000 payment is attributable to the disability, and therefore not divisible.

(2) Assume 20 years of service, and a 30% disability rating.  The longevity formula pays the servicemember $2500/mo (2.5% x 20 x $5000), but whereas the disability formula pays him $1500 (30% x $5000).  In this scenario, the serviemember would receive $2500/mo, which is $1000 more than his disability alone is worth, so that $1000 excess is divisible, with the spouses' respective shares depending upon how long they were married during the military service.

This may seem harsh to the spouse, but consider that a servicemember with more than 20 years of service is only on the TDRL for a maximum of five years.  Then, he's either returned to duty, or is retired - either way, as long as there's at least 20 years of service, there will ultimately be a normal military retirement to divide.

 

TDRL/PDRL & Maintenance / Child Support in Colorado

Similar to other non-divisible payments, such as social security or VA disability, Colorado family law courts still count TDRL and PDRL disability payments as income for purposes of determining maintenance and child support.

 

Disability Severance Pay

When a servicemember is removed from the Temporary Disability Retired List (TDRL), but not fit for duty, pursuant to 10 U.S. Code § 1203 he/she will be separated from the service, and generally will be entitled to disability severance pay..

 

Eligibility

A servicemember who meets the following criteria set out in section 1203 is eligible for the pay:

  1. Under 20 years of service,
  2. The disability was not caused by intentional misconduct or willful neglect, nor while the servicemember was AWOL,
  3. The disability may be permanent, and
  4. The disability is under 30% and incurred in the line of duty or as a result of service.

What does this mean? If a servicemember is unfit for duty, but not otherwise eligible for a normal 20-year retirement or placement on the Permanent Disability Retired List (PDRL), then he/she may receive disability severance pay.

 

Amount of Severance Pay

The formula for calculating the pay is set out in 10 U.S. Code § 1212. It is: years of active service (up to a maximum of 12) x 2 x highest base pay rate earned by the servicemember. Partial years under 6 months are rounded down, and those over six months are rounded up.

As an example, in 2010 an E-6 with 10 years of service has a base pay of $3148.20. So that servicemember's disability severance pay would be: 10 x 2 x $3148.20, or a total of $62,964.

 

Treatment of Disability Severance Pay in a Divorce

There is no clear-cut case law concerning whether disability severance pay is divisible.  There is a 1997 Colorado Court of Appeals decision, In re: Marriage of Heupel, 936 P.2d 561 (Colo. App. 1997) holding that a lump-sum payment to a servicemember who opted for a voluntary separation incentive (i.e. an "early out") is divisible marital property.  However, that decision is distinguishable for at least two reasons:

  1. The lump sum was paid in lieu of retirement, not as compensation for a disability, and
  2. The servicemember voluntarily opted to leave early and take the money, unlike a member who is unfit for duty and has no choice.

More recently, the holding of In re: Marriage of Williamson (see discussion) suggests that disability severance pay will likely not be treated as marital property subject to division.

 

More Information

 Army Physical Disability Evaluation System, a detailed explanation of the process from the U.S. Army Human Resources Command.

 

Traumatic Injury Protection (TSGLI)

The Servicemembers Group Life Insurance Traumatic Injury Protection Program, also known as TSGLI, is a rider to the SGLI policy.  The coverage is mandatory for anyone with SGLI coverage, and costs an additional $1 per month ($1 per year for reservists with only part-time coverage.

 

Coverage

TSGLI provides a payment for servicemembers injured as the result of a traumatic event.  There is no requirement that the injury be on-duty - off-duty injuries qualify as well.

The payments range from $25,000 (e.g. losing hearing in one ear) up to $100,000 (e.g. losing hearing in both ears), depending upon the type of injury.  See the complete Schedule of Losses here.

 

Beneficiary

Unlike life insurance, the only beneficiary is the servicemember (or guardian, if the servicemember is not competent).  However, if the servicemember lived for at least 7 days from the date of the traumatic event, then his/her survivor receives the benefit.

 

Tax Consequence of TSGLI

The IRS has determined that a TSGLI payment is not taxable!

 

More Information

Traumatic Injury Protection page on the Department of Veterans Affairs web site, which has complete information about the TSGLI program, links to the application forms, etc.

Survivor Benefit Plan (SBP)

Think of the Survivor Benefit Plan (SBP) as an insurance policy, focused on protecting a survivor's income flow from the military retirement if the retiree dies first.  It has a premium, and a payout in the form of a monthly payment from DFAS.

Without SBP, if the retiree dies, the military retirement stops as well.  However, to protect a surviving former spouse's share of military retirement after a Colorado divorce or legal separation, family courts can require a servicemember to elect former spouse SBP coverage.

As the retiree can only have one beneficiary (except for children coverage, outlined in more detail below), one effect of court-ordered SBP coverage for a former spouse is that if the service member remarries, the new spouse or children are precluded from coverage.

 

Amount of SBP Coverage

In the event of the servicemember's death, the former spouse receives a monthly payment of 55% of the designated base amount.  This designated base amount is an amount not greater than the servicemember's full gross retired pay, and not less than $300 per month. Spousal consent or a court order is required to elect less than maximum coverage. 10 U.S. Code §1448(a)(3)(A).

Previously, there was a coverage reduction to 35% upon the survivor's 62nd birthday.  However, that reduction was phased out over several years, and fully eliminated as of April 1, 2008.

So how do you calculate the base amount necessary to provide sufficient coverage?  This takes a little algebra.

  • Assume the former spouse share of the retirement comes to $650 in the year of the retirement.
  • That $650 is 55% of the necessary base amount.
  • Formula:  $650 / 0.55 = $1181.82.  That's the base amount necessary to provide $650 coverage.

The coverage is indexed to inflation, so increases annually with a COLA.

 

SBP Beneficiaries


Spouse / Former Spouse Coverage

Pursuant to 10 U.S.C. §1447(7,8), a retiree may elect his/her spouse or former spouse as beneficiary, as long as they:

  • Were married at the time the servicemember became eligible for retired pay,
  • Were married at least one year at the time of the retiree's death, or
  • Had a child together.

 

Children Coverage

When child coverage is added to former spouse coverage, only children resulting from the marriage to that former spouse are covered, including natural born, adopted, or stepchildren. If the former spouse is alive and eligible, he/she receives the annuity instead of the children.

A child is entitled to receive the annuity as long as the child is unmarried, and either:

  1. Under 18,
  2. Under 22 and a full-time student in an accredited school, or
  3. Disabled and incapable of self-support, as long as the disability occurred while under 18 or a full-time student under 22.

Eligible children divide the annuity in equal shares, and in the event of a child's death or loss of eligibility, the remaining eligible children divide the benefit equally.

The premium for the former spouse portion of the coverage is calculated as normal. The additional premium for the children's portion, a fairly nominal amount (as low as a few dollars a month), is calculated based upon the ages of the servicemember, the former spouse, and the youngest child.

 

SBP Election


Election by Servicemember

Prior to retirement, a servicemember is required to complete a DD Form 2656, Data for Payment of Retired Personnel, which also includes the Survivor Benefit Plan election.  If married, the servicemember is required to obtain his/her spouse's notarized signature to elect less than full coverage.  If divorced, the form has a place to select former spouse coverage, but the former spouse's signature is not required for this form.

To convert an existing SBP spouse coverage election into former spouse coverage, the retiree and former spouse must complete a DD Form 2656-1, Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage, and indicate whether the election is being made pursuant to a court order, a written agreement, or voluntarily. This distinction is significant, as it affects whether the retiree can unilaterally change the former spouse coverage.

The DD Form 2656-1 to convert the coverage from spouse to former spouse must be submitted within one year of the court order requiring coverage. A needless-sounding bit of bureaucracy, but an important one - unless this is done, the former spouse will not be covered.

Finally, 10 USC 1448(b)(3) is the statutory authority to convert spouse coverage into former spouse coverage for a retiree already participating in the plan.  It states that a person participating in SBP "may... elect to provide an annuity to that former spouse."  This does not, on its face, limit the coverage to the same dollar amount already in effect.  However, the guidance being put out by the military is that the benefit level may not be changed upon the election - it is either for the same amount, or zero, but not a lesser amount of coverage.

 

Deemed Election by Former Spouse

The DD Form 2656 does not require a former spouse's signature.  To prevent that former spouse from being at the mercy of a retiring servicemember who does not elect former spouse coverage, 10 U.S.Code § 1450(3) authorizes the former spouse directly to elect former spouse coverage.

The former spouse may do this deemed election within one year of the order requiring former spouse SBP coverage by completing a DD Form 2656-10, Survivor Benefit Plan (SBP) / Reserve Component (RC) SBP Request For Deemed Election, and sending it along with a copy of the order to:

Defense Finance and Accounting Service
U.S. Military Retirement Pay
P.O. Box 7130
London, KY 40742-7130

FAX: 1-800-469-6559

If the election is not done within one year of the order, or if the servicemember fails to elect former spouse coverage upon retirement, SBP could be irretrievably lost despite the divorce court's order. Therefore, for his/her protection, the former spouse should always do a deemed election, and not depend upon the servicemember to make a timely election of former spouse coverage.

 

SBP Premium Costs


Spouse & Former Spouse Coverage

Retired servicemembers pay a monthly premium for SBP coverage.  The federal government subsidizes part of the program costs (theoretically 40%), and premiums are deducted from the military retirement before disbursal, so are not taxable.

The normal premium for participants is 6.5% of the designated base amount for a surviving spouse or former spouse.

Servicemembers who are retiring for disability, or who entered active duty before 2/28/1990, have another option for the SBP premium. They can utilize the lesser of the 6.5% formula, or 2.5% of the threshold amount ($675 as of January 1, 2008), plus 10% of the remainder of the designated base amount.  The threshold amount increases annually with the active duty COLA.

Example: assuming a designated base amount of $1600, the premium cost under each method would be:

  1. $104 ($1600 x 0.065), or
  2. $109.38 ($675 x 0.025, or $16.88, plus the remainder of $925 x 0.10, or $92.50)

Before you worry about which method to use, if you're eligible for the alternative premium calculation, DFAS will use it automatically if it results in a lower premium.

The premium is considered "paid up" once the servicemember has paid SBP premiums for 30 years (or 360 months), providing that the maximum SBP coverage was elected.  Click here for more information.

 

Children Coverage

As indicated previously, the premium for children coverage alone is usually a nominal few dollars, and as an add-on to spouse or former spouse coverage, it may be under a dollar.

 

More Information.

Premium Calculator, provided by the Air Force Personnel Center, which includes calculations of child coverage premium.

Office of the Secretary of Defense page on SBP has a lot of SBP information, including illustrations of how premium costs are calculated.

DFAS web site.  Has a FAQ and calculator on open season enrollment costs.

 

SBP Premium Payment Responsibility

DFAS deducts the SBP premiums directly from the retired pay, prior to distribution. This has two consequences: (1) the premium is paid with pretax money, which reduces the SBP costs, and (2) absent a reimbursement mechanism, the parties are effectively splitting the SBP costs in accordance with the percentage of retirement each receives.

Despite the DFAS distribution, state divorce courts are permitted to allocate the SBP premiums as they deem appropriate. In Colorado, SBP is not a property interest, but an equitable means of preserving the former spouse's right to military retirement. In re: the Marriage of Payne, 897 P.2d 888 (Colo. App. 1995). That's legalese for saying that a Colorado divorce court has the authority to (and almost always does) order the servicemember to pay some or all of the SBP costs, even though only the former spouse benefits from the SBP.

In El Paso County, Colorado, the family law judges typically order the spouses to divide the SBP premium costs equally.  The theory is that if the former spouse dies, the military retiree gains by receiving the entire military retirement, including the former spouse's share, at no cost to the retiree, so it is not fair to make the surviving former spouse alone pay for a benefit which is not even as generous.

If a court orders one spouse to pay all, or a disproportionate share, of the SBP premium, when DFAS pays the former spouse directly the decree should contain a reimbursement mechanism to compensate the spouse who was not ordered to pay a proportional share of the premium.

Example: After a 12-year marriage, a court divides a military retirement with 70% to the servicemember and 30% to the former spouse, but orders the spouses to share the SBP premium costs equally.  The servicemember is effectively paying 70% of the premium because it is deducted from the retirement prior to receiving his/her share. If one assumes the total premium is $200 per month, the servicemember's share of the retirement is reduced by $140, versus the $100 it should be if the costs were spit equally.  So the former spouse owes the servicemember the excess $40 per month paid by the servicemember.

 

SBP Suspension or Termination

Coverage for a former spouse is suspended if he/she remarries while under 55, during the period of the remarriage. The premiums are also suspended, effective the first day of the month after remarriage, as long as DFAS is provided with written notification and a copy of the former spouse's marriage certificate.

If the former spouse's remarriage ends by death or divorce, the coverage and premiums resume the first day of the month after the marriage ends.  The servicemember must provide DFAS with written notification and a copy of the divorce decree or death certificate terminating the former spouse's remarriage.

Remarriage by a former spouse over 55 does not affect coverage or premiums.

Only a former spouse's death terminates SBP coverage. Since federal law preempts state law, any decree which purports to terminate, rather than suspend, coverage upon a former spouse's remarriage is unenforceable.

 

Changing Former Spouse Coverage

DFAS can change former spouse coverage only under following circumstances:

  1. If election was made pursuant to court order, provide DFAS with a certified copy of a subsequent court order relieving the servicemember of the obligation to cover the former spouse.
  2. If the election was made by written agreement between the parties not adopted by a divorce court, provide DFAS with the former spouse's written acceptance of the change.
  3. If the election was made voluntarily by the servicemember, and not as part of an agreement or dissolution, the servicemember can change it without the consent of the former spouse. However, DFAS will provide the former spouse with notice of the change.
  4. Upon the death of the former spouse, provide DFAS with a copy of the former spouse's death certificate.

Contact DFAS

DFAS
U.S. Military Retirement Pay
PO Box 7130
London, KY 40742-7130
FAX: 1-800-469-6559

 

Military Family Support

Each of the military services has a regulation requiring its servicemembers to support family members upon separation, in the absence of an agreement or court order. Note that they are stop-gap measures, and depending upon their circumstances (such as "fault", income levels, or number of children), either the servicemember or civilian spouse may be better off seeking a court order for temporary support and maintenance.

In the event of nonsupport, the spouse seeking support can request assistance from the servicemember's commander, and if that does not work, the local JAG office or Inspector General. But unlike court-ordered support, military family support cannot be garnished, nor can a commander actually divert a servicemember's pay to the spouse. However, a servicemember who fails to pay could be punished under Article 92, UCMJ for violation of a lawful general regulation, and DFAS may recoup any BAH received for dependents the servicemember was not actually supporting.

If you are a servicemember, or spouse of a servicemember, stationed at a Colorado Springs military installation, contact one of the following numbers for assistance:

  • Fort Carson:  Legal Assistance 526-5572, Inspector General 526-3900
  • Peterson AFB:  Legal Assistance 556-4500, Inspector General 556-2104
  • Air Force Academy:  Legal Assistance 333-3940, Inspector General 333-3490

However, if you are thinking of filing for a Colorado divorce, legal separation or paternity action, you may need an attorney who knows both Colorado law and military regulations for family support, child support, and maintenance / alimony.

 

Army Family Support

Army Regulation 608-99, Family Support, Child Custody & Paternity requires soldiers to pay temporary support depending upon the family situation.  All payments are based upon BAH-II, which was formerly known as BAQ, and is the housing allowance without the locality allowance, found on page 2 of the military pay chart:.  Paragraph 2-6 sets out the following support requirements in the absence of a court order:

  • Civilian spouse/children not in military housing: BAH-II at the with-dependents rate.
  • Civilian or military spouse/children in military housing: None.
  • Civilian spouse/children not in military housing living at different locations: Pro rata share of BAH-II at the with-dependents rate to each family member.
  • Military spouse, no children: None
  • Military spouse, split custody of children: None.
  • Military spouse, spouse has children:  Difference between BAH-II at the with-dependents rate and the without-dependents rate.

In-kind payments (such as buying groceries or paying bills) do not count towards the support obligation, except that if the soldier is on the lease or mortgage where the family lives, the soldier can pay the lease/mortgage and utilities, and offset those payments against the support obligation.  Para. 2-9(d).

 

Relief from Payment

Per Para. 2-14, a battalion/squadron commander may relieve the soldier of the support obligation under the following circumstances:

  • Civilian spouse has a higher income,
  • Soldier was the victim of substantial abuse by the spouse, which was substantiated by the Family Advocacy Case Management Team or a court,
  • The family member is in jail,
  • The soldier has paid the required support to the spouse for 18 months, or
  • The soldier is the legal custodian of the child for whom support is sought, and that child is living with someone else without that soldier's consent.

If the couple's children are living with the spouse, the soldier must still pay support, despite otherwise qualifying for relief from payment.  Finally, infidelity or abandonment are NOT grounds for relief.

 

Air Force Family Support

Air Force Instruction 36-2906, Personal Financial Responsibility requires servicemembers, in the absence of an agreement or court order, to "provide adequate financial support to family members."  Para. 3.2.1.

Period.  Unlike the other services, the Air Force does not attempt to define the level of support, instead leaving it up to the parties' agreement, and civilian courts if the parties do not agree. Even when a commander receives a complaint of nonsupport, the commander may require proof of support, but cannot define what constitutes an adequate level of support.

Support includes not only cash payments, but in-kind payments like buying groceries, paying bills, etc.

What does this mean? If you are a spouse separated from a servicemember, and need child support or maintenance, get a court order!

 

Navy Family Support

MILPERSMAN 1754-030, Chapter 15, Support of Family Members, provides a guide for family support in the absence of an agreement or court order.  Para. 4.a.  The obligation is expressed as a fraction of the sailor's "gross pay" (defined as base pay plus BAH, if entitled, but excludes all other allowances, such as BAS, hostile fire pay, etc).

  • Spouse only: 1/3
  • Spouse & 1 minor child: 1/2
  • Spouse & 2 or more children: 3/5
  • 1 minor child: 1/6
  • 2 minor children: 1/4
  • 3 minor children: 1/3

 

Waiver of Obligation

Only the Director, Dependency Claims, Navy Military Pay Operations, at DFAS, may grant a waiver.  Pursuant to para. 5.b, the grounds for a waiver are:

  • Desertion without cause,
  • Physical abuse, or
  • Infidelity by the spouse.

Should a waiver be granted, it only applies to the spousal portion, and not the portion attributable to children.

 

Marine Corps Family Support

MCO P5800.16A, Marine Corps Manual for Legal Administration, Chapter 15, sets up monthly support standards members must follow in the absence of an agreement or court order.  Per section 15004, the amount payable upon request by a family member is expressed as a fraction of the BAH or OHA the marine is receiving, with a minimum dollar level per family member:

  • 1 family member:  1/2 BAH/OHA, minimum $350 each.
  • 2 family members:  1/3 BAH/OHA, minimum $286 each.
  • 3 family members:  1/4 BAH/OHA, minimum $233 each.
  • 4 family members:  1/5 BAH/OHA, minimum $200 each.
  • 5 family members:  1/6 BAH/OHA, minimum $174 each.
  • 6 or more family members:  1/7 BAH/OHA, minimum $152 each.

Under no circumstances may a marine be required to pay more than 1/3 of his/her gross military pay, which includes base pay and all allowances.

There is no support duty between active duty spouses without children.

Support is payable by cash, check, money order, allotment, etc.  There is no provision for in-kind payments.

 

Modification of Obligation

The member's commanding officer (Colonel or higher), per section 15005, may reduce or eliminate the support requirement under the following circumstances:

  • The spouse earns more than the marine.
  • The marine has provided 12 continuous months of interim support per this requirement.
  • The marine was the victim of physical abuse by the spouse, substantiated by the family advocacy case management team or a court (must still provide for minor children).
  • The marine is paying regular or recurring obligations (e.g. rent or consumer debts) of the family members of sufficient magnitude and duration to justify relief.

 

Coast Guard Family Support

COMDINST M1000.6A, Personnel Manual, Chapter 8M (this is a huge document, which takes forever to load) sets out obligations of Coast Guard servicemembers to support their spouses in the absence of an agreement or court order.  Paragraph 2.E.3.c, page 2-28

  • Spouse only:  BAH-Diff, plus 20% of base pay.
  • Spouse & 1 child:  BAH-Diff, plus 25% of base pay.
  • Spouse & 2 or more children:  BAH-Diff, plus 30% of base pay.
  • 1 child: 1/6 of base pay.
  • 2 children: 1/4 of base pay.
  • 3 or more children: 1/3 of base pay.

Child included handicapped children.

BAH-Diff is the difference between BAH at the With-Dependents Rate, and BAH at the Without-Dependents Rate.

 

Relief from Obligation

  • For a child, when the child's whereabouts & welfare cannot be ascertained
  • For a child, the person requesting support does not have custody of the child
  • The spouse deserted the member without cause,
  • The spouse committed infidelity, or
  • The spouse inflicted physical abuse on the member.

The grounds for relief for spousal support are discretionary, and the commandant may not grant relief even if they are satisfied.  Furthermore, relief from spousal support does not relieve the member of the obligation to support the children per the schedule above.

 

Former Spouse Military Benefits

Upon obtaining a Colorado dissolution, the former spouse of a servicemember has a right to receive military benefits so long as he/she meets the criteria. As the benefits are statutory entitlements, they are automatic and not subject to negotiation or deviation by a divorce court in Colorado or other states.

Children and stepchildren of servicemembers retain full military benefits while unmarried and under 22.

 

Benefits During Separation

Until a Colorado divorce court issues a final decree of dissolution, a civilian spouse separated from a servicemember retains full military privileges, including ID card, medical, military exchange, commissary, etc. Though the servicemember can terminate the civilian spouse's ability to cash checks on post by going to the PX/BX, he/she cannot confiscate the spouse's ID card, or otherwise suspend the spouse's military privileges.

Because a civilian spouse with a decree of legal separation in Colorado still retains military benefits, parties who do not intend on remarrying may wish to consider this option if, e.g., the civilian spouse has a preexisting medical condition which makes it difficult to obtain alternative medical care.

Military housing is generally only authorized to servicemembers residing with their families, so typically an installation will give a civilian spouse a reasonable time after separation to vacate on-post housing.

 

 

20/20/20 and 20/20/15 Benefits

A former spouse who was married to the servicemember for at least 20 years qualifies for military benefits after the dissolution, under the conditions listed below.

If the couple obtains a decree of legal separation (which Colorado offers), that time of legal separation counts as marriage for purposes of these rules.  So if the former spouse is close to achieving 20/20/20 or 20/20/15 status, it may be worth having a period of legal separation before the dissolution itself.  Consult with a family law attorney, knowledgeable in military issues, for specific advice about your situation.

Eligibility is under the former spouse's own SSN, not the servicemember's SSN, so the former spouse should contact DEERS to advise of the dissolution, and arrange for the change in "sponsor."

Finally, health coverage is medical only, not dental.  And unless the former spouse pays an annual premium of $230, the coverage is the equivalent of Tricare Standard, not Tricare Prime.

 

Full Benefits ("20/20/20" Rule)

Pursuant to 10 U.S. Code §1072(2)(F), a former spouse of a servicemember is defined as a dependent, and therefore entitled to all military benefits and installation privileges, including medical, commissary, military exchanges (PX/BX), etc.

Former spouses who meet these criteria are covered:

  1. Married to the servicemember at least 20 years,
  2. The servicemember had at least 20 years of creditable service, and
  3. There were at least a 20-year overlap between the marriage and the military service.

 

Transitional Benefits ("20/20/15" Rule)

Pursuant to 10 U.S. Code §1072(2)(G) & (H) , a former spouse of a servicemember is defined as a dependent for purposes of military medical care only, and entitled to one year of transitional medical benefits.  The benefits do not include other military benefits, such as commissary, PX/BX, etc.

Former spouses who meet these criteria are covered:

  1. Married to the servicemember at least 20 years,
  2. The servicemember had at least 20 years of creditable service, and
  3. At least a 15-year overlap between the marriage and the military service.

 

Suspension of Benefits

  • Medical benefits are suspended while the former spouse is covered by an employer-sponsored health care plan.
  • Medical benefits terminate upon the former spouse's remarriage.
  • Commissary, military exchange (BX/PX) and other installation privileges (20/20/20 spouses) are suspended while the former spouse is remarried, but reinstated upon the remarriage terminating due to death or dissolution.

 

Continued Health Care Benefit Program / COBRA

Similar to COBRA for private health insurance programs, Tricare will provide a divorced spouses who are not remarried with transitional health insurance called the Continued Health Care Benefit Program (CHCBP). At $1193 per quarter for individuals, and $2682 for families (2014 rates), the program is far from free, and certainly not the bargain Tricare is.  However, if the civilian spouse has a preexisting medical condition, or no coverage available through his/her employer, CHCBP may be worthwhile.

Pursuant to 10 U.S. Code §1078a, up to 36 months of coverage is ordinarily available.

Former spouses who meet these criteria can have unlimited coverage:

  • Did not remarry under the age of 55,
  • Was enrolled as a family member in an approved health care benefits program (i.e. Tricare/DEERS) at any time in the 18 months before dissolution or annulment, and
  • Is receiving a share of the servicemember's military retirement, or has a court order or written agreement for a share of the retirement.

Benefits are similar to that of Tricare Standard (CHAMPUS), with the same list of providers (i.e. not military treatment facilities), and similar coverage, rules and procedures.

The former spouse must move fast to enroll - apply with a DD Form 2837 Continued Health Care Benefit Program Application within 60 days of the loss of Tricare eligibility (which will be date of dissolution, unless the spouse is 20/20/15 qualified, in which case it will be within 60 days of that one-year of medical benefits ending), and mail it in with proof of your eligibility and a check for the first quarter of coverage.

 

More Information

CHCBP Details, on the Humana Military Healthcare Services, which administers the program.

Continued Health Care Benefit Program, on the Tricare web site, with details and links to the application form and downloadable fact sheets.

An Employee's Guide to Health Benefits Under COBRA, published by the U.S. Department of Labor.

COBRA Continuation of Coverage, on the U.S. Department of Labor web site.

Mixed Reserve & Active Time for 20/20/20 Benefits

Does reserve time count towards 20/20/20? The answer is "it depends", and even then, the more military practitioners you ask, the more answers you'll end up with.

10 U.S. Code §1072 does not clarify whether "creditable service" means reserve or active time, but simply requires that the years be "creditable in determining that member's or former member's eligibility for retired or retainer pay".  Undeniably, reserve time counts towards reserve benefits - a former spouse married to a reservist for more than 20 years of reserve time is eligible for 20/20/20 benefits upon the reservist actually becoming eligible.

Likewise, undeniably active duty time will count towards reserve benefits, if the servicemember ultimately receives a reserve retirement.

The harder question is whether reserve time counts towards active duty benefits - e.g. the parties were married exactly 20 years, but the servicemember was in the reserves for 5 of those years, and active duty for 15.  After dissolution, the servicemember served sufficient time to qualify for a regular active duty retirement.  I've seen nationally-known military retirement experts argue both sides of this issue. But the most supported position is that a the overlap with reserve service will NOT count towards an active duty retirement.

There is a Joint Services Regulation, Identification Cards for Members of the Uniformed Services, Their Eligible Family Members, And Other Eligible Personnel (In the Army, it's Army Regulation 600-8-14) which sets for eligibility for military ID cards. Para. 3.2.1 provides: "Active Components use active duty service to compute sponsor’s creditable service for retired pay."

That language strongly indicates that overlap with reserve time does not count as creditable service for purposes of active duty benefits.

Garnishment of Military Pay

In Colorado divorce, legal separation or paternity cases involving child support or maintenance, the spouse can receive payments through an income assignment (Colorado's term for "garnishment").  Military and retired pay can be garnished, just as civilian pay.

 

Military Pay Subject to Garnishment

The military pay subject to garnishment has several exceptions which are listed in 5 CFR § 581.104, including BAS, BAH, travel allowances. For many servicemembers, it means only their base pay is subject to garnishment.

Furthermore, pursuant to 5 CFR § 581.105, there are also certain sums excluded from the pay subject to garnishment, such as money owed to the United States, taxes, health insurance premiums, life insurance premiums, and normal retirement contributions.

 

Garnishing Active Duty Pay

Though Colorado requires income assignment to be served by certified mail, DFAS will accept a support order sent via fax at (216) 522-6960, or regular mail at:

DFAS-GAG/CL
PO Box 998002
Cleveland, Ohio 44199-8002

 

More Information

Military Garnishment Information, on the DFAS web site.

 

 

Garnishing Military Retirement & VA Disability


Servicemember's Military Retirement

To garnish income for child support or maintenance from a retired servicemember, send DFAS a certified copy of the support order and a DD Form 2293, Application for Former Spouse Payments from Retired Pay.  This is the same form that a former spouse would use to apply for a share of the military retirement as a property division.

 

 

Former Spouse's Military Retirement

The share of a military retirement awarded to a former spouse cannot be garnished for any reason, including payment of child support or maintenance.  DOD Financial Management Regulation, Volume 7B, Chapter 29, Section 290903.

 

VA Disability Payments

If a veteran is eligible to receive military retired pay and waives a portion of it in return for VA Disability payments, under the Social Security Act those payments are subject to garnishment for child support and maintenance. 42 U.S. Code §659(h)(1)(A)(v).

To determine whether the VA payments are subject to garnishment, and to arrange for garnishment, contact the VA Regional Office which pays the obligor's benefits. Call (800) 527-1000 to determine the appropriate VA office.

The process is not simple, and involves contacting the VA Regional Office for an apportionment application, then completing a VA Form 21-4138, Statement in Support of Claim, and sending it in with a copy of the current support order and any other pertinent documents.

In Colorado, the VA contact information is:

VA Regional Office
155 Van Gordon St.
Lakewood CO 80228

Tel. (800) 827-1000
Fax (303) 914-5879

(Mailing Address)

VA Regional Office
Box 25126
Denver CO 80225

 

 

Combat-Related Special Compensation (CRSC)

CRSC payments are also subject to garnishment.  DOD Financial Management Regulation, Volume 7B, Chapter 63, Section 630104.

 

More Information

Information Memorandum IM-98-03 from the federal Office of Child Support Enforcement, with information on garnishing VA payments for child support.

DOD Financial Management Regulation, Volume 7B, Chapter 29, "Former Spouse Payments From Retired Pay".  Straight from the horse's mouth, this regulation is essentially a guide for garnishing military retirement.

 

Maximum Garnishment Limitations

The maximum that the Defense Finance & Accounting Service (DFAS) will garnish, outlined in 5 CFR §581.402, is the following:

  • 50% if the servicemember is providing more than half the support to other dependents not covered by the order.
  • 55% if the servicemember is providing more than half the support to other dependents not covered by the order, but has a support arrearage.
  • 60% if the servicemember is not providing more than half the support to other dependents not covered by the order.
  • 65% if the servicemember is not providing more than half the support to other dependents not covered by the order, but has a support arrearage.

Note that if you're garnishing child support arrears from military retirement, the order must be certified, and less than two years old at the time DFAS receives it.  DOD Financial Management Regulation, Vol. 7B, Chapter 29, Section 290401.A.

 

Servicemembers Civil Relief Act (SCRA)

Most military personnel have probably heard of the SSCRA, or the Soldiers' & Sailors' Civil Relief Act, even if they are not familiar with all of its nuances. That 1940 statute has now been superseded - in December 2003, it was replaced with the Servicemembers Civil Relief Act of 2003 (SCRA). The new act is more than just different terminology to ensure that airmen and Marines are not left out - it contains numerous updates and new protections for servicemembers which did not exist in the 1940 version of the act. Most of those changes, however, are not applicable to family law cases, but pertain to insurance, taxes, leases, etc.

From a Colorado divorce, legal separation or paternity perspective, the SCRA applies to all judicial proceedings, including post-decree matters, and to administrative agencies. Note that it does NOT protect servicemembers in criminal cases. It covers active duty servicemembers, including reservists and members of the national guard mobilized under Title 10, United States Code.

Under 50 U.S. Code App. §101, the SCRA protections apply to active duty servicemembers, reservists, and National Guardsmen who are called up by the President or Secretary of Defense for a period of more than 30 consecutive days.

The Act's provisions pertaining to the legal residence of servicemembers and military spouses for purposes of voting and taxation may be relevant on the issue of whether a family law court has jurisdiction to hear the case. 

 

More Information

About.com. Site with information about other SCRA rights not covered here.

Servicemembers Civil Relief Act Overview, on Military.com. Excellent overview of all provisions of the SCRA, including those not mentioned here as they do not pertain to family law.

(SCRA) Servicemembers Civil Relief Act Lookup.  A DOD site to confirm whether an individual is on active duty.  Note that this is NOT a servicemember locator, and will not disclose any information about the servicemember other than his/her active duty status.

Protection from Default Judgments

50 U.S. Code App. §201, which applies to any civil action, provides servicemembers being sued (which includes being sued for paternity or divorce) with relief against default judgment. A party seeking a default judgment must first submit an affidavit stating whether the defendant is or is not in the military, or that the party does not know whether defendant is in the military. A judgment obtained without the affidavit is voidable if the servicemember later shows that his/her military service prejudiced the presentation of a defense.

Unless the affidavit states that the defendant is not in the military, the divorce court must appoint an attorney to represent him/her. The responsibility of the court-appointed attorney is to ascertain whether the defendant is in the military and, if so, typically to request a stay of proceedings in the defendant's behalf.

A court shall reopen the default judgment and allow the servicemember to defend the case when:

  1. The judgment was entered during the military service or within 60 days thereafter,
  2. The servicemember's ability to defend the case was materially affected by the military service,
  3. The servicemember has a meritorious or legal defense, and
  4. The application to reopen is made during the military service, or within 90 days after it ended. Technically, this means total military service, such as ETS or retirement, not just the specific deployment or other foreign service which prevented the servicemember from appearing.

 

Stay of Civil Proceedings

Under 50 U.S. Code App. §202, the court may, on its own motion, and shall, upon application by a servicemember which meets these criteria, stay the proceedings for at least 90 days:

  1. The applicant is in the military service, or within 90 days after it ended,
  2. The applicant has actual notice of the proceeding,
  3. The application is in writing, and includes facts stating how military service materially affects ability to appear, and a date when the servicemember may appear, and
  4. The application includes a communication from the servicemember's commander that the military duty prevents appearance, and leave is not available.

The initial 90-day stay is mandatory. Thereafter, the servicemember may apply for an additional stay, using the same criteria. The court may deny a subsequent application, however, providing that an attorney is appointed to represent the servicemember.

Simply being stationed overseas, thereby making it more expensive to appear, does not materially affect a servicemember's ability to appear as long as the servicemember is allowed to take leave. And courts know that servicemembers accrue 30 days of leave per year.

A servicemember invoking this protection must justify the need for a stay (e.g. the LES proves there is no leave accrued), and have his/her commander write the request. Bear in mind that family law courts in Colorado Springs, which has several military installations, work with servicemembers by allowing telephonic testimony, or scheduling hearings during periods of authorized leave (such as mid-tour leave for a servicemember in Korea). The result is that military personnel are protected, but family law proceedings can still continue.

Finally, if a request for a stay is denied, the servicemember cannot then invoke the protections in section 201 to set aside the default judgment.

 

Colorado Reservist Parent Protection

In 2008, the Colorado governor signed House Bill 08-1176, Concerning the Modification of the Allocation of Parental Responsibilities of Certain Deployed Servicemembers, which creates additional parenting protections for parents in the National Guard or Reserves who deploy, thereby causing a temporary change in parenting.

The bill is limited to reserve component servicemembers, and not the active component.  Presumably the rationale behind this is that reservists did not really expect they would have to deploy as much as they have recently, whereas active component servicemembers signed on for a life of danger and deployments!

 

Interim Parenting Order During Deployment

The bill creates a new statute, C.R.S. 14-10-131.3, which provides that a modification of parenting time solely due to a reservist's deployment or active federal service is only interim.  Once the servicemember returns from the deployment, or active federal service, the orders regarding the allocation of parenting responsibilities and parenting time which existed prior to the deployment or federal service are immediately reinstated without the need for a further court order.

If a servicemember consents to the other parent raising the children during a deployment/federal service, that consent will NOT qualify as consent to the children being integrated into the other parent's household for the purposes of modifying custody.

In short, the statute means the other parent cannot use the fact of the deployment/federal service as a power play and try to change custody permanently because of it.

 

Child Home State Jurisdiction

The Uniform Child Custody Jurisdiction and Enforcement Act defines a child's home state for purposes of jurisdiction as the place where the child has resided for the previous six months.  C.R.S. 14-13-102(7).

HB 08-1176 modifies this to exclude period where a child lived out of state purely due to an interim order entered pursuant to C.R.S. 14-10-131.3 during a reserve component servicemember's deployment or federal service.

What does this mean?  Only that Colorado wont relinquish jurisdiction over a child who is only temporarily living out of state while the primary residential parent was deployed.

 

Domestic Violence

Domestic violence raises issues for servicemembers and their families beyond the criminal repercussions the perpetrator may face.

 

No Contact Orders

These may be characterized as the military equivalent of a civilian restraining order.  When a servicemember is charged with domestic violence, his/her commander will often take several measures to protect the spouse, such as moving the servicemember into the barracks, restricting the servicemember to post, or ordering the servicemember to have no contact with the spouse.  Violation of these measures subject the servicemember to punishment under Article 92, UCMJ (10 U.S. Code §892), for violation of a lawful order.

 

Family Support

A servicemember who is the victim of domestic violence generally is not required to pay temporary family support to the offender spouse (absent court order).  See Military Family Support for more details.

 

 

Lautenberg Amendment

Being convicted of domestic violence is likely to have negative impacts on the servicemember's career.  However, one federal law effectively stops the servicemember from performing one of the most basic military duties - carrying a weapon.

The Lautenberg Amendment, which is the better-known name of the Domestic Violence Amendment to the Gun Control Act, is codified at 18 U.S. Code §922(g)(9).  In short, it makes it a felony for someone who has a misdemeanor conviction for domestic violence to possess a firearm.  Unlike so many of the other federal prohibitions against possessing firearms, this one has no exception for the military.  This leads to the odd result that a servicemember with a felony conviction for domestic violence can still possess a firearm while performing military duties, but a servicemember with a misdemeanor conviction cannot!

 

Treatment of Lautenberg Convictions

DOD Instruction 6400.06 sets out general guidelines, but does not require the services to take any particular adverse action against a servicemember with a qualifying conviction.

  • Army.  Career effectively over.  A soldier is flagged, barred from reenlistment, prohibited from attending schools or deploying, and ultimately is supposed to be separated within 12 months.  Army Regulation 600-20, Army Command Policy, para. 4-23(d).
  • Air Force.  HQ USAF DPP Policy Memo of 20 Feb 2004.  (Can't locate this memo).
  • NavyNAVADMIN 085/98.  (Can't locate this message).
  • MarinesServicemembers may be separated, although those within two years of hitting their 20 years for retirement may be transferred to an administrative position which does not require access to firearms.  See MARADMIN 186/03, Policy for Implementation of the Lautenberg Amendment.

 

 

 

Domestic Violence Victim Benefits


Transitional Compensation & Benefits

Under 10 U.S. Code §1059, a spouse or dependent child (under 18, or under 23 if in college) is entitled to receive transitional compensation and benefits if the servicemember is discharged for abuse (i.e. domestic violence or sexual assault) against the spouse or child.

As of 2014, monthly payments are $1215 for a spouse, and $301 per child, and the dependents are entitled to commissary and exchange benefits. The payments are pegged to the level of the Department of Veterans Affairs' Dependency Indemnity Compensation (DIC) (see rate tables here) established by 38 U.S. Code §1311. Payments last for a minimum of 12 months and a maximum of the lesser of 36 months or the servicemember's length of service.

 

Military Retirement

Pursuant to the Uniformed Services Former Spouse's Protection Act, 10 U.S. Code §1408(h), the spouse is also entitled to a portion of the servicemember's retired pay if the servicemember was eligible for retirement when the offense was committed.

The spouse is not entitled to receive the payments while a court-martial punishment of forfeitures is suspended. Furthermore, payments to a spouse terminate upon the spouse's remarriage, or if the servicemember resides in the same household as the spouse.

The spouse should contact the victim-witness coordinator for the servicemember's installation for more information about this benefit (often located in the JAG office).

Obtaining Military Records

Run by the National Archives, the National Personnel Records Center is the repository for all military personnel and medical records ("Official Military Personnel File", or OMPF) of discharged or deceased veterans.

Information available includes: duty stations, training, awards, disciplinary records, evaluations, insurance, discharge information, etc.

To obtain the records, the servicemember or next of kin can fill out the SF 180, Request Pertaining to Military Records, and send it to one of the addresses indicated on the form, depending upon the servicemember's branch and years of service.

 

Court Orders

Because most military records are protected by the Privacy Act, attorneys cannot subpoena them without a judge's signature. Obtain a court order for the records, which includes a description of the records sought, and the following information about the servicemember: name, SSN, date of birth, branch of service, and dates of service. If medical records are sought, include dates and places of treatment.

Send a copy of the court order to:

Director
National Personnel Records Center, (NARA)
(Military Personnel Records)
9700 Page Avenue
St. Louis, MO 63132-5100

Records for servicemembers still on active duty are obtainable in a similar fashion - consult the address blocks on the SF 180 to determine where to send that form, or a court order.

 

More Information

National Personnel Records Center

Legal Demands for Records/Information (PRC 1864.107D).  NPRC Memo on obtaining records via court order.

 

Reserve Family Law Issues


Division of Reserve Component Military Retirement

The formula for dividing reserve military retirements is based upon the same principle as active duty retirements, with one change - it utilizes retirement points, rather than months.

The former spouse of a reservist is entitled to one-half of the marital portion of the servicemember's disposable retired pay, calculated as one-half of:

Retirement points accumulated during marriage
------------------------------------------------------------
Total retirement points at retirement

Note that a reservist who has at least 20 years of qualifying service (50 or more retirement points earned in the year) is eligible for retirement, but the payments do not begin until the servicemember's 60th birthday.

A reserve servicemember can find out the retirement points acquired during marriage, depending upon his/her branch of service. For more information, see:

Army Reserve. ARPC Form 249-2-E (Chronological Statement of Retirement Points) sent annually to reserve soldiers within 2 months of their Retirement Year Ending Date, and accessible online by at the U.S. Army Human Resources Command My Record Portal.

Air Reserve. The paper version of AF 526 has been discontinued, but retirement point credit information is available at the Virtual MPF.

Navy Reserve. Annual Retirement Point Record is not in paper format, but accessible online at BUPERS Online.

National Guard. NGB 23 (Retirement Points History Statement). Applies to the Army National Guard and Air National Guard.

 

Reserve Component SBP (RC-SBP)

The reserve component has a Survivor Benefit Plan, similar to, and different from, the active duty SBP. Among the choices available are making an election upon the reservist's retirement, or deferred until age 60, when the retirement benefits start getting paid, opting for a deferred SBP annuity, or one to start immediately, etc.

 

More Information

National Guard Retirement Benefits Page. An overview of the reserve retired pay system.

Reserve Retired Pay Calculator

Reserve & National Guard Retirement Pay System article on About.com.

Points, an article on the Air Force Times web site about accumulating reserve points.

Reserve Component Survivor Benefit Plan (RC-SBP), straight from DFAS.

Understanding Military Pay

Leave & Earnings Statement (LES)

You can learn a lot from a Leave and Earnings Statement (LES), including the servicemember's pay grade, years of service, and gross pay. But what do those numbers really mean? A servicemember's gross monthly pay primarily consists of:

  • Basic Pay, which varies depending upon the servicemember's pay grade and years of service (military pay tables).  Looking at the LES is sufficient in almost all cases, but for those interested in the complete details as to how basic pay is determined, see the DOD Financial Management Regulation, Chapter 1.
  • Basic Allowance for Housing (BAH). Servicemembers receive BAH unless they reside in military housing or the barracks. The amount varies, depending upon pay grade, dependent status, and home station zip code. BAH calculator, or the see the Joint Federal Travel Regulation, Chapter 10 for complete regulations governing the Basic Allowance for Housing.
  • Basic Allowance for Subsistence (BAS). servicemembers without meal cards receive BAS, which in 2012 is $239.96 per month for officers, and $348.44 per month for enlisted (the current amount is on page 3 of the military pay table, and the complete rules are in the DOD Financial Management Regulation, Chapter 25).

 

Special Pays & Allowances

For many servicemembers stationed CONUS (in the Continental United States), these are the only pay and allowances received.  However, servicemembers on jump status, in special forces, or those receiving professional pay (e.g. doctors) receive additional allowances, and doctors in particular may receive annual bonuses. Additionally, servicemembers who reenlist may also receive a reenlistment bonus.  There are also sea pay, submarine pay, clothing allowances, etc.

The military pay table has an itemization of the various pays and allowances servicemembers may receive, but trying to outline who receives what under all circumstances would be nearly impossible.  These are listed in the military pay table, and braver souls can review the DOD Financial Management Regulation, Volume 7A, Military Pay Policy & Procedures - Active Duty & Reserve Pay, which is the definitive word on the subject, and is particularly useful if someone claims they won't be receiving a specific allowance in the future.  However, for most people reviewing the Leave & Earnings Statement, W-2s, and if a doctor, W-2s and other documents which reflect bonuses received in addition to monthly pays should be sufficient, and is a lot easier.

 

Overseas Military Pay & Allowances

Servicemembers stationed OCONUS (Outside the Continental United States) typically receive other allowances. The more common of these are:

 

Military Pay During Deployments

Servicemembers who are deployed receive the same pay & allowances as in garrison, even if, e.g., they have no rent or mortgage to pay.  Additionally, the four primary additional pays deployed servicemembers receive are:

  • Hostile Fire Pay, which in 2012 is $225 per month.  See the military pay table.
  • Family Separation Allowance of $250 per month, once away from the family for more than 30 days.  The dollar amount, which has been the same since 2002, is on the military pay table, and the specific entitlement rules are in the DOD Financial Management Regulation, Chapter 27.
  • Hardship Duty Pay, which is $100 per month in Iraq or Afghanistan.
  • Per Diem.  The Standard On-Base Incidental Rate is $3.50 per day worldwide.

Combat Zone Tax Exclusion.  If a servicemember spends any part of a month in a combat zone, all pay & allowances that months are tax-free.  See the DOD Financial Management Regulation, Chapter 44 for more details.  While this increases the net pay available to the servicemember, since Colorado bases its child support calculations off gross pay, the tax-free status has no effect on Colorado child support.

  

Colorado Treatment of Military Pay & Allowances

For purposes of calculating child support and maintenance, Colorado divorce courts use a very broad definition of "gross income." In a nutshell, C.R.S. 14-10-115(5) includes every dollar the servicemember receives reflected on the LES, including the non-taxable allowances.

Moreover, Colorado family law courts also impute income to a servicemember who receives lodging or food in lieu of BAH or BAS. In re: Marriage of Long, 921 P.2d 67 (Colo. 1996), the Colorado Supreme Court decided that a servicemember who lives in military housing pays child support and maintenance as if he/she were actually receiving BAH!

The reason? Military housing is considered an "in-kind payment," much like a company car provided by a private-sector employer. There may be common-sense exceptions, however - a servicemember living in a Quonset hut may be able to convince the trial judge that it is not the financial equivalent of proper family housing or the full BAH at the with-dependents rate.

 

More Information

DFAS Home Page.  Comprehensive information, and links to military pay charts, BAH calculator, COLA tables, etc.

Life Insurance

Since child support and maintenance payments stop when the obligor dies, family law courts frequently order obligors  to carry term life insurance to protect his/her survivors in the event of death.  Term life insurance is where a person pays a premium for a time frame, and if he/she dies during that coverage period, the benefit is paid.  If payments lapse, so does the policy, and, the policy has no surrender value.

Some employers offer inexpensive term life policies, and the military is no exception.

 

Servicemembers Group Life Insurance (SGLI)

The military offers SGLI, in $50,000 increments, up to $400,000 of coverage.  The premium is fixed, regardless of age or health - just 7 cents per month for each $10,000 of coverage, plus an extra $1 per month for a mandatory Traumatic Injury Protection Coverage.  So the maximum $400,000 of coverage is only $29 per month - which compares pretty favorably to private plans.

A servicemember can designate both primary and contingent beneficiaries, as well as multiple primary beneficiaries in whatever percentages he/she chooses.

 

Family SGLI (FSGLI)

FSGLI provides coverage for servicemember's spouse and dependent children (including stepchildren living in the household).

Spouse coverage is available in an amount from $10,000 to $100,000 (or up to the SGLI coverage amount, if lower).  If no other amount is selected, then the default is $100,000.  The premium is based upon the spouse's age bracket, and ranges from 55 cents per $10,000 if the spouse is under 35, up to $5.20 per $10,000 of coverage if the spouse is 60 or older.  See FSGLI Premium Rates Table.

Dependent child coverage is a fixed $10,000 per child.  The premium is free.

FSGLI coverage begins automatically for the following categories of servicemembers, providing they have SGLI coverage in effect:

  1. Being married when the FSGLI program began on November 1, 2001,
  2. Entering the service with a spouse and/or children, or
  3. Marrying or having a child while in the service.

To reduce or decline spouse coverage, the servicemember must fill out an SGLV 8286A, Family Coverage Election.

 

Veterans' Group Life Insurance (VGLI)

VGLI is a post-military insurance program which allows veterans to convert their SGLI into a renewable term life policy.  It is available to all servicemembers upon separation, not just retirees.  The veteran has one year, plus 120 days, to apply for this coverage.  Coverage amounts are from $10,000 up to $400,000, though they cannot exceed the SGLI coverage in effect at separation.

Unlike SGLI, the premiums go up as the veteran gets older, and they also start out more expensive than SGLI (a 40 year-old will pay $76 per month for the same $400,000 coverage which costs a servicemember $29, and a 50 year-old will pay $150 for that coverage).  For more details, see the Premium Rates Table.

 

 

More Information

SGLI Page, on the Department of Veterans Affairs web site.

Family SGLI Page, on the Department of Veterans Affairs web site.

VGLI Page, on the Department of Veterans Affairs web site.

Military.com page on VGLI, with information on VGLI eligibility, etc.

Traumatic Injury Protection Program (TSGLI) article, in the Military Divorce Guide.

 

Cashing In Military Leave

Accrual of military leave

Servicemembers on active duty accrue leave at the rate of 30 days per year, or 2 1/2 days per month. DOD Financial Management Regulation, 7000.14-R, Volume 7a, Chapter 35, section 350102.B.

A full month of paid vacation per year sounds pretty generous (and it is!), but it’s value is somewhat diminished by the fact that a servicemember on leave uses one day per day of leave, even if that day were a weekend or holiday when he/she would not be working anyway! Contrast that to the vacation time granted by most employers, which only counts normal workdays.

With limited exceptions, a servicemember may only carry over a maximum of 60 days of leave from into the next fiscal year. DOD Financial Management Regulation, 7000.14-R, Volume 7a, Chapter 35, section 350102.B. Any leave in excess of that 60-day threshold is referred to as “use it or lose it”, and is even reflected in a box on the LES captioned “Use/Lose”. NOTE: there is a temporary increase in the carryover leave to 75 days, but that is scheduled to end on September 30, 2013.

Cashing In Leave

Servicemembers are authorized to sell back their military leave, also known as cashing in their leave, when they are discharged from the military under honorable conditions. 37 U.S. Code § 501.

The maximum amount of leave that can be cashed in is 60 days, per 37 U.S. Code §501(f), and the leave is valued at base pay only, without BAH, BAS, or any other pay or allowances. 37 U.S. Code § 501(b)(1).

For enlisted members, “discharge” includes the expiration of a term of reenlistment, even if the servicemember reenlists. 37 U.S. Code § 501(a)(1).

Finally, each servicemember may only cash in 60 days during his/her career, with certain exceptions for leave accrued during contingency operations. DOD Financial Management Regulation, 7000.14-R, Volume 7a, Chapter 35, section 350102.B. That means that if an enlisted member has already cashed in 60 days as part of a reenlistment, he/she must take take transitional leave rather than cashing it in.

Transitional Leave.

Instead of cashing-in leave, often servicemembers leaving active duty will take transitional leave (formerly known as “terminal leave”). This means that they have out-processed from the military, and, for all practical purposes, are out of the military, but they still receive their full pay while on transitional leave.

The advantages to a servicemember are that he/she receives full pay and allowances, including BAH, BAS, etc, rather than just base pay. And, by obtaining a waiver, he/she is permitted to work while on transitional leave.

The disadvantage is that the servicemember is still, technically, on active duty in case the balloon goes up, or the servicemember commits a UCMJ violation.

Treatment of Military Leave in a Divorce

A state divorce court may, under certain circumstances, treat accrued military leave as a divisible asset.  As an example, if a servicemember whose base pay is $6000 per month has exactly 30 days of accrued leave, that could be considered a $6000 asset.

In Colorado, the deciding factor is whether the employee has the right to cash in the leave, and whether its value can be determined. See the Vacation & Sick Time article in the Colorado Divorce & Family Law Guide for more information.

Hiring a Military Divorce Lawyer

Colorado Springs Military Divorce Attorneys

A "military divorce" is not a special type of proceeding - like any other dissolution of marriage action, it will take place in civilian courts, not military courts, in front of the same domestic relations judges and magistrates who preside over family law cases involving civilians. The term "military divorce" is simply shorthand for a divorce when one, or both, of the spouses is in the armed forces.

There is no special rule for what constitutes a "military divorce lawyer."  Hiring an attorney for your military divorce is not easy.  Just because a family law attorney claims to know the military, or even has prior military service, it does not mean the lawyer actually knows the legal issues which affect a divorce when one spouse is in the military.  Anyone can hold themselves out to be a "military divorce attorney", but there's a difference between advertising, and actually knowing the laws affecting military divorces, and knowing how to litigate those legal issues.

Word of mouth is a good starting point.  If you know a servicemember or spouse who was divorced and happy with his/her family law attorney. But that's only the first step in the process - visit the law firm's web site - if it doesn't even mention the military, that's not a positive sign. However, simply claiming to be a "military divorce lawyer" does not mean the attorney actually has the expertise you need. For that, you'll probably have to narrow your list down to a few candidates, and visit with lawyers for consultations.

Consult with a few of the lawyers, and ask specific questions about your case to see if that "military divorce attorney" knows what he/she is talking about. If you go to a consultation prepared, in about 5-10 minutes you should be able to figure out whether the attorney on the other side of the desk is truly prepared to handle the issues in a "military divorce", or whether you're being fobbed off with generalities which mask a lack of knowledge.

If you already have specific question in mind, fire away and see what answers you get.  But if not, here are some basic questions which every military divorce attorney should be able to answer.

Five Questions to Ask Military Divorce Lawyers

1. How many cases have you handled involving military personnel? Black & Graham is truly a Colorado Springs military divorce law firm - most of our attorneys and staff are veterans, or family members, and over a third of our cases involving servicemembers.  That means we've handled hundreds of "military divorce" cases.

2. How does the Soldiers and Sailors Civil Relief Act affect service of process? This is a bit sneaky, since it's a double trick question. First, the SSCRA was replaced in 2003 when it was entirely rewritten as the Servicemembers Civil Relief Act. Second, the SCRA has no specific requirements on how to serve the summons on a servicemember.

3. Does service of process in Colorado give the court jurisdiction to divide a military retirement? Not necessarily. The Uniformed Services Former Spouses' Protection Act requires either domicile or the servicemember's consent to divide a military retirement.

4. How many years of marriage are needed before a military pension is divisible? None - however unless there are at least 10 years of marriage overlapping military service, the spouse needs to get his/her share from the retiree as DFAS will not pay it directly to the other spouse.

5. What benefits is the civilian spouse entitled to after divorce?  Unless married for at least 20 years, none.  And those 20 years of marriage must overlap at least 15 years of service for one year of transitional medical benefits, or overlap 20 years of service for full military benefits after divorce.

Colorado Springs Military Divorce Lawyer

If you need a military divorce attorney in El Paso County, we would be honored if you consider the law firm of Black & Graham. We know the military - about a third of our cases involve the military, and our veteran team of Colorado Springs military divorce attorneys is managed by Carl O. Graham, a former Army JAG attorney who authored this Guide and has taught Colorado military divorce law to groups of lawyers and judges throughout the state. Our lawyers have the training and experience to handle your case, and you can’t find a better or more experienced military divorce law firm in Colorado Springs.

We handle military divorce cases from Fort Carson, Peterson AFB, the U.S. Air Force Academy, Schriever AFB, Cheyenne Mountain Air Station, and the Pikes Peak region. We also offer a 10% military discount to all service members, military spouses, and retirees.

Paternity & The Military

Being in the military does not create any particular rules for establishing paternity.  Commanders cannot order servicemembers to support children born out of wedlock absent a court order, and they cannot order a servicemember to undergo a DNA test (again, that's a civilian court matter).

 

Child Support

DOD Directive 1344.03.  The Department of Defense will honor court orders for support.

Each of the services' family support regulations have similar clauses - military family support is only payable if there is a court order adjudicating paternity.  A voluntary acknowledgment of paternity is not sufficient.  See the regulations cited in Military Family Support for more information.

 

ID Cards & Military Benefits

The services all have a jointly-published regulation governing the issuance of ID cards.  Though the terms are identical, it's known as Air Force Instruction 36-3026(I), Army Regulation 600-8-14, BUPERS Instruction 1750.10B, Marine Corps Order P5512.11C, and Commandant Instruction M5512.1.

Para. 4.9 provides that it takes a court order for a male servicemember to establish paternity over a child.  An acknowledgment of paternity, or being on the birth certificate, is not sufficient.  (A female servicemember, for obvious reasons, need only present the child's birth certificate).  To obtain an ID card, the servicemember needs to complete a DD Form 1172, Application for Uniformed Services Identification Card DEERS Enrollment.