Forms

Military Worksheet

Military Pensions

Robert Treat, Esq. & Meletios Golematis, Esq.

One of the most common misconceptions about dividing Military Retired Pay is the presumption that the difference between a division of Military Retired Pay and a division of an Employee Retirement Income Security Act (ERISA) plan is merely one of form. Actually, some of the basic elements are quite different. The division of Military Retired Pay is, in many ways, simpler than the division of qualified ERISA plans, but there are substantive and procedural requirements that are both strictly adhered to, and distinctly different from, ERISA plans. Because these requirements are different they are frequently misunderstood or overlooked.

Procedural Requirements

One common and potentially very costly mistake made with respect to division of Military Retired Pay is the failure of the parties to take the steps necessary to provide the Former Spouse with coverage under the Survivor Benefit Plan (SBP). The divorce judgment (or other court order) alone is insufficient to initiate coverage. The Department of Financial and Accounting Services (DFAS) is the federal agency charged with administering military pension benefits. In order to effectuate an award of SBP coverage to the Former Spouse the Service Member must, within one year of the date of divorce, make the necessary election by submitting to the DFAS Department of Defense (DD) Form 2656. Except as provided below, there are no exceptions to this one-year rule and if the Service Member fails to make a timely election for any reason – including the Service Member's death – the Former Spouse's payments will cease upon the Service Member's death.

To avoid this result, the Former Spouse may submit to the DFAS a Request for Deemed Election (DD Form 2656-10) together with a certified copy of the judgment or court order awarding SBP coverage. In the absence of the Service Member making the required election, this is the only way the Former Spouse can insure that he or she is covered under the SBP. Again, however, time is of the essence. The Request for Deemed Election must be submitted to the DFAS within one year of the first judgment or other court order granting SBP coverage to the Former Spouse. Thus, if the divorce judgment awards SBP coverage the DFAS will not honor a Request for Deemed Election submitted more than one year after its entry, regardless of whether the order formally dividing Military Retired Pay (i.e., the Military Pension Division Order (MPDO)) has yet to be entered by the court.

Other procedural pitfalls are the failure to submit the proper DD Form with the MDOP, and the failure to send the MDOP and DD form within 90 days of certification by the court. DD FORM 2293 (Application For Former Spouse Payments From Retired Pay) should be submitted concurrently with the MDOP to the DFAS. The impact of these failures is much less severe than the failure to timely submit the proper SBP forms, but they can delay and frustrate the parties and their counsel.

Substantive Requirements

All of the following substantive factors should be taken into account during settlement negotiations and, where appropriate, specifically addressed in the judgment.

Conclusion

There are certain items that require close attention. In discovery, counsel should verify whether the Service Member is or will be eligible for Retired Pay, whether the 10/10 Rule is satisfied, and whether (and the extent to which) SBP coverage is available to award to the Former Spouse. The judgment or MPDO should be clear on whether VSI, SSB, and other "pre-retirement" benefits will be included in dividing Military Retired Pay. The SBP election, if intended, should be done immediately after the divorce is final, and close attention should be paid to the timing of the submission of the MPDO and appropriate DD Forms. For more on Military Retired Pay, you can visit the DFAS website at http://dfas.mil.