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 leave the denominator blank, as the servicemember's total creditable service cannot be determined until retirement.  Then, upon retirement, a simply clarifying order is necessary to set out the spouse's share of the retirement.

 

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.