A cornerstone of the Constitution enshrines states’ rights, saying anything not specifically laid out in the Constitution by default falls to the states. This is why we have state control of education, fair housing, the death penalty, and marijuana laws. Sometimes we have conflict between federal and state law, and sometimes federal laws are enacted specifically to overrule states’ laws. Such is the complex case with dividing military retirement pay in divorce.
Enter The Frozen Benefit Rule
Congress, in its infinite wisdom (!), wrote and voted on the National Defense Authorization Act for Fiscal Year 2017 (NDAA 17). In the NDAA 17 was a new method for calculating pension division for every state.
As of December 23, 2016, every state had to use Congress’ “frozen benefit rule” for equitably dividing a military pension under two conditions:
- The divorce was granted after December 23, 2016; and
- At the time of divorce, the servicemember was not receiving retired pay
The rule freezes an amount so that the money 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.
Getting this amount correct requires the skills of a truly gifted Virginia divorce attorney, since the divorce order must include both the hypothetical years of service and the hypothetical retired pay base on the exact date of the divorce decree. The retired pay center will reject the order if either parameter is wrong, or if the order’s wording is wrong.
Military Divorce and Retirement: Then vs. Now
Until the arrival of the infinitely less helpful NDAA 17 frozen benefit rule, most states used a “time rule” based on a simple premise:
As a military member, you would not have risen to the rank and prestige you hold, or remained in service as long as you have, without the intangible comfort and support of a spouse. Therefore, she is entitled to a portion of your retirement pay.
This time rule has its origins in “marital foundation theory,” the legal notion that your spouse helped you get to where you are, no matter the profession you practice. So, tinker, tailor, soldier, spy (!), you are really good at it, and earning a lot doing it, because your spouse helped:
- She ironed your dress uniform with no train tracks in the pants
- She opened your K-rations
- She spat on your shoes to get a spit-shine
- She scrounged $5 in quarters from the couch to pay for your high and tight at the base barbershop
If she stayed in bed when you got up at 4:30 a.m., put Ex-Lax in your brownies before basic training, or glued glitter to your hi-gloss Oxfords, none of that matters, legally.
The court assumes she gave you all her love, support, intimacy, compassion, and so on. So, she gets an equitable portion of every dollar you tucked away in military retirement pay. Or, at least, she once did.
Whether you think this is fair or not, the time rule no longer applies. It has been replaced by the frozen benefit rule, which is completely (sadly) unrelated to a certain Disney movie.
The Frozen Benefit Rule is a Tad Complicated
As with many moments when Congress offers its magical touch in handling all things military, the frozen benefit rule is, shall we say, a tad complicated.
Some attorneys (and many a judge) who have tangled with the “hypothetical clause” of the frozen benefit rule find it so devilishly hard to write, their suggested equitable division order gets rejected by the military pay center.
The failures come from several corners of the military and legal communities:
- The military member’s disposable income (i.e., the money on the table, to be divided between you and your ex-wife) is limited to the amount of retired pay to which the member would have been entitled using the member’s retired pay base and years of service on the date of the decree of divorce, dissolution, annulment, or legal separation
- Unforeseen delays in granting the decree immediately nullify the language of the division
- Planned delays (she wants to hold onto your medical benefits, for example) make nearly impossible the accurate recording of rank and pay on the actual date of the decree
Call The Military Divorce Attorney for Men!
Congress, bluntly speaking, had no idea what it was doing in promulgating NDAA 17, and the President had no idea what he was doing by signing it into law. As usual, you, the servicemember, have to navigate these conditions in spite of, not thanks to, Congress and the President.
We recommend that, instead of dealing with NDAA 17 on your own, you tap the experience of a divorce attorney familiar with finding solutions, like the professionals of The Firm For Men. When you contact us online or telephone our office at 757-383-9184, you secure the specialized knowledge and dedication of our attorneys.