We are going to do you the courtesy of avoiding any reference to a certain Disney animated movie that begins with F and has r-o-z-e in the middle and ends in n, even if its name appears in our title. I think most Dads are a bit … worn out? … by that particular cinematic gem. But we do need to tackle the Frozen Benefit Rule and its effect on disposable retired pay for military couples who are pursuing divorce.
Love is an Open Door
Love may be an open door, but we go through many doors in our lives. Some lead to great things. Some lead to … divorce. If the love in your marriage has walked out, and you are opening the door to divorce, you need to plan your next year or so carefully. Separation. Attorneys. Divorce decree.
Along the way, if one of you serves or served in the military, you will likely have to deal with the Frozen Benefit Rule. This particular promulgated piece of pain comes from the 2017 National Defense Authorization Act (NDAA), which weighs in at a streamlined 1,587 pages from the U.S. House of Representatives. NDAA changed the way states could calculate the division of military retirement pay.
Dividing military retirement pay was tricky enough without adding this marvelous mayhem of Congressional complexity to it. Now, under 2017 NDAA, the former spouse’s share of a military retirement is “frozen” as of the date of dissolution (date of the divorce decree).
Establishing that frozen number is like catching lightning in a bottle.
But We Were So Close!
If you and your ex-wife divorced after 2017 NDAA went into effect, and either of you was or is a servicemember, you are affected by this change. You and your ex-wife might have been so close to avoiding this paperwork tangle, but perhaps your divorce was delayed. Perhaps you were still very much in love on December 23, 2016 (when the law took effect) and did not begin divorce proceedings until 2017 or later.
In magic, comedy and law, timing is everything. Your opportunity to avoid the Frozen Benefit Rule has, regrettably, passed. Rather than attempt to navigate the icy wastelands of this rule by yourself, you and your spouse should get experienced legal advice. Look for family law attorneys familiar with military divorce. Ask the prospective attorneys specifically if they are familiar with recent updates to division of military retired pay.
For the First Time in Forever
With the 2017 NDAA and the newly christened Frozen Benefit Rule, military couples pursuing divorce have to accurately predict the future. They must declare (often months in advance) what the military member’s retirement pay will be on the date of the divorce, so the divorcing spouse’s portion can be determined and frozen for that date.
This marks the first time that disposable retired pay has been redefined at the same time the calculation of retired pay has been made far more difficult. According to Congress itself, here is what “disposable retired pay” is:
Disposable retired pay is retired pay less withholdings, disability pay the member is entitled to on the date the member retires or was placed on the temporary disability retirement list, and Survivor Benefit Plan deductions.
Note the three parts:
- Retired pay, less withholdings
- Disability pay as of the date of retirement
- Survivor Benefit Plan deductions
The likelihood you or your military spouse can accurately calculate all three of those is akin to a snowball’s chance in … well, you get our drift.
Can You Figure It Out By Yourself?
Rather than trying to decide what portion of military retirement pay goes to the other spouse, take a step back and realize the ground beneath both of you has changed. You are unlikely to make accurate estimates or calculations without professional guidance.
For military divorces after November 5, 1990, “disposable retired pay” is now the total monthly retired pay, minus any amounts owed back to the government for previous overpayments, minus amounts deducted as a result of forfeitures of retired pay ordered by a court-martial, and minus any amounts waived so the service member can receive compensation under title 5 U.S. Code (civil service) or title 38 U.S. Code (veterans’ benefits).
Calculating the frozen benefit for the spouse is, in rough terms, based on the High-3 pay (the highest average basic pay you earned during any three consecutive years of service) of the service member at the time of dissolution of the marriage, plus COLAs, but excluding any other increases in compensation.
Sounds simple? Of course not. Which is why, rather than chase each other like wolves pursuing, perhaps, a reindeer-drawn sleigh, you both need to enlist experienced family law attorneys.
Onward and Upward
Still knottier is the case of a military couple divorcing while the military service member is nowhere close to retirement. Say your Air Force wife is seven years into her career, and your marriage is dissolving nine years after you tied the knot.
She still plans to move onward and upward. Yet you need to know, now, what your share of her retired pay will be. You (or, realistically, your attorney) has to project her pay years into the future, and then figure your equitable portion.
The non-military spouse has to take the ratio of years of service (in this case, 7) to marriage (in this case, 9): 7/9 or 0.77. This is the couple’s marital percentage, so you will get only half of the 77 percent of the marital share — 38.5 percent.
This percentage is then used to calculate the future retired pay portion coming to the spouse, based on a projected High-3 some 13 years into the future, when she will have 20 years of active duty. Even if you can accurately predict, say, a 2.5 percent pay increase annually for the next 13 years, the chances of your calculations making their way past the Retired Pay Center of the Defense Finance and Accounting Service (DFAS) are very slim.
Let It Go & Call The Firm For Men
With divorce, you have a lot to keep track of, and with military divorce, you have so much more than the typical couple. Rather than dig in and fight over each spouse’s interpretation of the frozen benefit rule and disposable retired pay, let it go and turn your troubles over to trained professional attorneys.
A Virginia family law attorney with close familiarity with the challenges of the 2017 NDAA regulations can help you both calculate a fair, equitable, and serenity-inducing settlement. You may divorce only once; your attorney handles cases such as yours regularly.
And, yes, we hid a bunch of references from an icy little F-word movie throughout this piece. Why? Because we’re stinkers; even lawyers like to have fun.
As chilling a problem as the Frozen Benefit Rule may be, we are the trusted team to help you. Contact The Firm For Men today to schedule an appointment. You will get experienced, qualified legal advice specifically tailored to your needs. Telephone our office at 757-383-9184 or stop by 4505 Columbus Street, Suite 200 if you are in Virginia Beach. Our sole mission is to help Virginia’s men defend their rights, safeguard their financial futures, and assert their innocence.