Let’s be clear: very few of our readers are actual elected officials with the federal government. We apparently have almost no U.S. Representatives or U.S. Senators among our readers, so when we say “fixing the frozen benefit rule,” we are really talking about a workaround. Because, unless you are a member of Congress, you cannot ignore or change the law itself, of course.
The Problem with NDAA 17
The National Defense Authorization Act for Fiscal Year 2017 (NDAA 17) held in its 970 pages (!) a substantial revision of military pension division orders. Instead of letting the states decide on division of military retired pay and what formula to use, Congress (you know Congress: infinite wisdom, deep content knowledge, impartial decision-makers) imposed a single method of pension division applicable in all 50 states.
The particular charm of this law is the hypothetical scenario in which the military member retires on the date of divorce.
Even though forty-plus states had efficiently used the “time rule” to divide a defined benefit plan, all states — as of December 23, 2016 (the date the law was enacted) — now have to use this new (!), improved (!) method for dividing a military pension.
The new rule applies to servicemembers who go through military divorce and property division while still on active duty in the uniformed services.
To be completely clear, that means all active duty members of the Army, Navy, Air Force, Marine Corps, Coast Guard, Public Health Service, and National Oceanic and Atmospheric Administration. It also works its Congressional magic on National Guard members and Reservists not yet receiving retired pay.
I See Nothing Wrong!
Many servicemembers see nothing wrong with this new approach, which largely ignores the whole concept of marital foundation (you intangibly contributed to your servicemember wife’s success, or she to yours).
Instead of calculating marital fractions and using a time rule, the new process hypothetically freezes the spouse’s share of military disposable retired pay based on the rank and pay at the time of divorce (literally, on the day the divorce decree is granted).
If you still see nothing wrong with this approach, consider these points:
- Calculating the exact rank and pay on the day of a future divorce decree is an extremely hard bit of forecasting.
- Military retired pay centers must reject improperly worded directives to divert retired pay, causing the non-servicemember, ex-spouse to go back to an attorney for a second, or even third attempt at writing legal wording that syncs with the new law.
- A delay, reconsideration, or alteration to the divorce schedule could mean the entire petition for retirement pay has to be rewritten; an intervening promotion or change in pay means the whole calculation is off
How Hard Could It Be?
Suppose you, the Virginia man seeking divorce, are the servicemember. You and your attorney have an easier time dealing with the Frozen Benefit rule than your spouse. All you need is your High-3 (highest three years of pay) and a year’s worth of Leave & Earnings Statements from the Defense Finance and Accounting service (DFAS). These become legal evidence for the decree.
As the servicemember, your best interest is served in shortening the time from separation to divorce decree, thereby freezing your rank and pay at the lowest possible rate. Any delay in the divorce, during which time your pay or rank could change, will cost you money.
If, on the other hand, you are the non-military spouse of a servicemember, your best plan is to delay the actual divorce decree as long as possible. So what if the opposing counsel has to recast the military pension division order (MPDO) five times? The longer you wait, the higher your portion of the disposable retired pay will be.
Call the Military Divorce Attorneys for Men
In some areas of divorce, special knowledge increases efficiency and leads to happier outcomes. If your divorce attorney has the slightest hesitation in completing the MPDO or ancillary documents, be willing to spend a little money on outside, expert advice, whether you are the servicemember or the non-military spouse. The earlier you enlist this outside expert to work out the details of the MPDO, the better.
No fix short of Congressional action will truly rectify the nightmare of the Frozen Benefit Rule, but an experienced attorney familiar with military divorce can help.
Sorting out every aspect of Virginia family law is what we do at The Firm For Men. When you contact us online or telephone our office at 757-383-9184, you tap into the experience and knowledge of attorneys dedicated to helping Virginia’s men. We debug divorce dilemmas, solve separation situations, and mollify militant military members’ misery.