Thomas Aquinas, medieval philosopher, offered two sides of one argument when he said, “It would seem that several angels can be at the same time in the same place. For several bodies cannot be at the same time in the same place, because they fill the place. But the angels do not fill a place…”1 This has morphed into the idiomatic and condescending query, “How many angels can dance on the head of a pin?” Sometimes lawyers seem to talk out of both sides of their mouth with mutually contradictory arguments. Here’s one example: does the military retirement rule, popularly known as the Frozen Benefit Rule, help or hurt you, Virginia’s military men?

About the Frozen Benefit Rule

In a nutshell, the Frozen Benefit Rule “freezes” military retirement pay to the divorcing, non-military spouse using a completely hypothetical (some would say illusory, imaginary, mythical, or nonsensical) method, as outlined in Family Lawyer Magazine:

What is “divided will be the hypothetical retired pay attributable to the rank and years of service of the military member at the time of the divorce. The only adjustment will be cost-of-living adjustments that occur under 10 U.S.C. § 1401a (b) between the date of divorce and the time of retirement.”

Notice that “at the time of divorce.” Say you are the nonmilitary spouse of a Marine Major with 10 years of service. You and she agree to separate pending divorce, which will be, under Virginia law, at least six months in the future. What if she is eligible for a promotion (and concomitant pay increase) during that time?

The Frozen Benefit Rule Helps

The Frozen Benefit Rule is a piece of cake! For the military man, freeze in pay and rank at the time of divorce means you can cede to her a lower amount of your retirement pay. Think of it this way:

You are currently a Master Sergeant with 10 years of service on the day of your divorce. In the next decade you can rise to Senior Master Sergeant and then to Chief Master Sergeant, with the ancillary pay increases. Your divorced ex-wife will get no share of the retirement income you generate from those two higher ranks. Your High-3 will be based on your highest three years as a Master Sergeant.

The rule helps you because your divorcing wife deserves nothing from your achievements after the divorce. She contributed nothing; she gets nothing.

The Frozen Benefit Rule Hurts

The Frozen Benefit Rule throws a monkey wrench into the works because of its vagueness and hypothetical argument.

Your wife and her divorce attorney have to project your rank and pay at the time of divorce, in order to freeze your retirement pay so her portion can be calculated. That is tricky, and made worse by a silly thing called real life:

  • The divorce could be as much as a year into the future
  • What if you delay the divorce?
  • What if you get an unexpected promotion during that intervening year?
  • What if you do not get an anticipated promotion?
  • What if your High-3 is inaccurately estimated or recorded?

In the blink of an eye, your attorney or your ex-wife’s attorney can be rejected by the military pay center when trying to word the partition order correctly.

For example, asking the pay center “What is the military servicemember’s High-3 pay?” will get you nowhere. Instead, your attorney has to ask, “What was the military servicemember’s monthly pay from July 1, 2016 to July 1, 2019?”

Who Knows?

Aquinas (remember him? We started off with good ol’ Thomas and his angels) was arguing for the salvation of men’s souls. We show our own ignorance when we insult those medieval thinkers by reducing their argument to nonsense over the acreage of a pinhead.

Equally ignorant is the set-in-stone idea that the Frozen Benefit Rule is all good or all bad. Each Virginia man’s case is different. A good Virginia divorce attorney can propose a seemingly endless stream of questions that probe at the strength of both sides of the Frozen Benefit Rule argument.

One certainty in all of this: the lawyer you hire to represent you will need to fight zealously for your interests, no matter the philosophical or theoretical questions involved. Because at the end of your day, you need an advocate who will help you retain or recover the strongest financial position possible.

Get straight talk and sound legal advice. Contact us at The Firm For Men, or telephone our offices at 757-383-9184. We can provide advice, wise legal counsel, and strong advocacy for Virginia’s men. We also know military divorce inside out. We are here to help you.