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)
NOTE - With the 2017 National Defense Authorization Act, Congress has now determined that states cannot award a former spouse a share of any post-decree enhancements to retirement based upon longevity increases or future promotions. This change is still new enough that DFAS has not issued new guidelines on how it will be implemented, but see this article for more information about how the new formula will apply: Military Retirement Division to Exclude Post-Divorce Promotions. This statutory change supersedes the formula presented below.
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
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.
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.