“Beat the Clock”: Deadlines in a Military Divorce Case
In this article, we tackle how to address deadlines in military divorce cases. The essential component of “beating the clock” is critical to manage malpractice risk. Military divorce cases have deadlines that must be met to ensure (or exclude) the eligibility of a spouse or former spouse regarding federal and military benefits, such as the survivor benefit plan and military medical care.
Military Pension Division Orders
While there is no deadline for military pension division orders (MPDO),[1] there are implications for a delayed preparation and submission. Arrearages are the first issue. The retired pay center, U.S. Coast Guard Pay and Personnel Center or Defense Finance and Accounting Service (DFAS), will not collect back payments from the member. Direct pay to the spouse only includes current retired pay garnishment.
The second issue sounds a lot like the law school rule regarding liens: first in time, first in right. A practitioner must beat the next spouse to the pension. The passage of time leaves room for a subsequent spouse to register and obtain his or her share of the pension. Failure to timely submit a MPDO could result in a reduced share for your client.[2]
Lastly, there is a risk that delay could lead to arguments under general principles of civil litigations and time. Defenses such as failure to prosecute, laches,[3] and statute of limitations[4] can be avoided with prompt action and attention to deadlines. The author is currently involved in a case in which the servicemember is arguing the court lacks subject matter jurisdiction over the spouse’s pension division because the spouse sat on her rights for a period of years prior to seeking a military pension division order. The old saying, “An ounce of prevention is worth a pound of cure,” applies. A spouse should timely submit a MPDO to avoid these types of issues and arguments down the road.
Survivor Benefit Plan Coverage
The former spouse pension share ends on the death of the servicemember. To protect the spouse, many military retirees elect survivor benefit plan (SBP) “former spouse” coverage so that the former spouse will continue to receive the pension after the death of the member.[5] SBP must be elected within one year of the divorce decree.[6] DD Form 2656-1 is used for submissions to DFAS and the USCG Pay and Personnel Center for the servicemember. To perfect the SBP, three steps must be taken: 1) There must be a requirement for SBP in a court order or separation agreement; 2) the request for coverage must be made; and 3) the election and appropriate paperwork must be registered with the pay center. The effective time for the election is upon receipt by the retired pay center.[7] If the election is not being made under a court order, the submission must indicate whether it is pursuant to a voluntary written agreement with the retiree incident to divorce, and whether the agreement was ratified, approved, or incorporated by the court.[8]
If the servicemember does not submit the appropriate documentation to obtain coverage, the former spouse can still obtain SBP coverage by serving a written request, the appropriate form, and a certified copy of the appropriate court order. The deadline for this request is receipt by the center within one year of the order providing SBP coverage for the former spouse. DD Form 2656-10 is used for the former spouse’ election under these circumstances, called a “deemed election.” If the member is retired already,[9] there may be significant issues.
These two one-year deadlines are distinct, one involving the spouse and one involving the servicemember. Because a divorce decree often does not include the terms of a property settlement, the court often reserves property division for a later date. Occasionally, the court resolves some of the division of the parties’ assets and debts, but leaves other terms to be resolved in the future. Thus, the order that provides for SBP coverage could precede or follow the divorce decree. To avoid disaster, counsel should monitor these dates carefully on an internal calendaring or reminder system and ensure the deadlines are met. The missed SBP deadline is a commonly seen malpractice issue in military family law.
Practice tip: the DD forms listed herein come up on any internet search by typing in “DD Form 2656-1” or “DD Form 2656-10.” Note that DFAS will change the forms from time to time, so it is wise to double check to make sure the most current form is being used prior to submission.
SBP Timing — Retirement
Retirement presents an additional deadline for SBP coverage. If the servicemember retires and does not elect coverage or elects spouse (or spouse and child) coverage, any subsequent SBP order for the former spouse is too late. The SBP election for the former spouse cannot be made after retirement. This requirement is clear in the Department of Defense Financial Management Regulation (DoDFMR): 1) If the former spouse is the member’s former spouse at the time the member becomes eligible to participate in SBP, an election for former spouse must take place at or before the member’s retirement; and 2) if a member has a former spouse upon becoming eligible to participate, but is not required by a court order or court-approved agreement to provide former spouse coverage, any subsequent court order that requires former spouse coverage will not be honored.[10]
This is an essential piece of the puzzle for the practitioner because retirement can be a hard deadline. The best practice is to avoid reserving issues such as SBP until after the dissolution, or consider requesting an interim distribution to go along with a “status divorce,” which predates the property division. If both the divorce and an appropriate SBP order occur prior to retirement, the former spouse still has one year. The former spouse’s deemed election will trump another election if on time. For example, if the servicemember remarries and selects spouse coverage, the former spouse will prevail if he or she has a proper SBP order and meets the deadlines.
10/10 or the 10-Year Rule
A garnishment order providing a former spouse with direct monthly pension-share payments from the U.S. government is preferable for most former spouses. Receiving pay directly from the source will avoid the possibility of non-compliance on the servicemember’s part, and the risk that the spouse will end up chasing the servicemember all around the country — possibly even the world — trying to obtain his or her share.
For direct payment from the retired pay center, there must be at least 10 years of marriage overlapping 10 years of service creditable toward retirement.[11] This rule is frequently referred to as the “10/10 rule.”
Suppose a servicemember comes into your office and says, “We were only married nine years. She cannot get any of my pension, right?” The “10/10 rule” is not a jurisdictional rule determining the divisibility of the pension,[12] although this appears to be a widely held misconception. There is no prerequisite number of years of marriage overlapping with years of service to obtain military pension division. The time rule is a requirement for enforcement through the retired pay center. Payment via garnishment of the servicemember’s retired pay is not available without compliance with the rule, but the former spouse who does not meet the “10/10 rule” can still obtain a pension share via direct payment from the servicemember.
The above rules apply for active duty servicemembers. Members of the National Guard and Reserves, known as Reserve Component or RC, have different rules. The RC component should have 10 “good years,” or a year that is creditable toward retirement. A “good year” is a year in which the RC servicemember has accumulated 50 points or more. Active-duty time and reserve time may be added together for 10/10 rule compliance.
Practice tip: Include the 10/10 compliance and how the rule was met within the order. A recitation will usually be honored by the retired pay center unless it has contrary information.
Military Medical Coverage
If there have been 20 years of marriage, 20 years of military service qualifying for retirement, and an overlap of at least 20 years, then an un-remarried former spouse will qualify for full medical benefits[13] as a “20/20/20” spouse. For shorter marriages, the former spouse should look into Continued Health Care Benefit Program (CHCBP) as a means of providing health insurance coverage.[14]
Closing and Other Benefits
These entitlements come from statutory authority. The former spouse does or does not qualify based upon the law. Therefore, these should not be viewed as negotiation items, involving trading, conceding, removing these entitlements. A judgment of divorce or dissolution affects the privileges, legal rights, and entitlements of the nonmilitary former spouse in many ways. A table showing the benefits and entitlements of former spouses is found at the appendix on page 42, adapted from the “The Military Divorce Handbook” by Mark E. Sullivan.[15]
[1] Potts v. Potts, 790 A. 2d 703 (Md. 2002) (no time limit for submission of pension division order after divorce judgment); accord Duhamel v. Duhamel, 772 N.Y. S. 2d 437 (N.Y. App. Div. 2004); and Jordan v. Jordan, 147 S.W. 3d 255 (Tenn. Ct. App. 2004).
[2] “If the designated agent is served with applications from more than one former spouse, then the designated agent will honor the applications on a first-come, first-served basis. Subsequently served USFSPA applications shall be satisfied out of the disposable retired pay that remains after the satisfaction of all court orders which have been previously served….” DoD 7000.14-R, Department of Defense Financial Management Regulation (DoDFMR), Military Pay Policy and Procedures — Retired Pay, Vol. 7B, Ch. 29 §291102
[3] See, e.g., Schaub v. Schaub, 305 P.3d 337 (Alaska 2013) (former spouse’s claim for prospective share of retirement benefits was not barred by statute of limitations or estoppel; parties were divorced 1992, former spouse brought claim in 2010; laches barred her claim for retroactive division).
[4] Randle v. Randle, 199 So. 3d 76 (Ala. Civ. App. 2015) (former spouse applied for share of military pension 28 years after divorce decree; appellate court upheld trial court’s denial of her application, saying that it was too late to modify divorce decree).
[5] 10 U.S.C. §1448(b)(3)(A)(i).
[6] 10 U.S.C. §1448(b)(3)(A)(iii).
[7] 10 U.S.C. §1448(b)(3)(E).
[8] 10 U.S.C. §1448(b)(5).
[9] See 10 U.S.C. §1450(f)(3)(C) and further discussion herein.
[10] DoDFMR, Vol. 7B, §430504.A.2. and A.4. For a member of the Guard or Reserve, the former-spouse election must be filed within 90 days after receipt of the Notice of Eligibility, which each Guard and Reserve member receives upon attaining 20 creditable years of service (the 20-year letter). DoDFMR, Vol. 7B, §430504.A.3. Failure to do so results in the SM’s being defaulted into full/maximum coverage (Option C) for the Reserve Component Survivor Benefit Plan (RC-SBP).
[11] 10 U.S.C. §1408(d)(2). Creditable service is computed using the rules set out at 10 U.S.C. §1405 and the DoDFMR, Vol. 7B, Ch. 1, Subsection 0103.
[12] See, e.g., Carranza v. Carranza, 765 S.W.2d 32 (Ky. Ct. App. 1989).
[13] That is, TRICARE plus treatment on a space-available basis at military medical treatment facilities.
[14] 10 U.S.C. 1078a; see also 32 C.F.R. 199.20.
[15] Mark E. Sullivan, The Military Divorce Handbook (ABA 3d ed. 2019).
APPENDIX ENDNOTES
1* Pub. L. 97-252, Title X, 96 Stat. 730 (1982), as amended. This chart reflects all changes to the act through the amendments in the National Defense Authorization Act, Fiscal Year 1994, Pub. L. 103-160 (1993).
2* For guidance on obtaining a military identification card to establish entitlement for health care, commissary, and PX benefits, see appropriate service regulations (e.g., AR 640-3). Former spouses of reserve component members may be entitled to these benefits; see the following notes for applicable benefits.
3* Except for Dependent Abuse Victims Transitional Compensation payments, this chart assumes that the member serves long enough to retire from an active duty component or reserve component of the Armed Forces (generally this means that (s)he has 20 years of service creditable for retirement purposes, but the time for retirement can be as little as 15 years in the case of an early retirement under §504 of Public Law 112-81, which expired December 31, 2018).
4* At least one court has awarded a portion of military retired pay to a spouse whom the retiree married after he retired, Konzen v. Konzen, 103 Wash. 2d 470, 693 P.2d 97, cert. denied, 473 U.S. 906 (1985).
5* Federal law does not create any minimum length of overlap for this benefit; the parties’ agreement or state law will control a former spouse’s entitlement to designation as an SBP beneficiary.
6* See 10 U.S.C. §§1408(d) & 1408(e) and 32 C.F.R. part 63 for further guidance on mandatory language in the divorce decree or court-approved separation agreement. The former spouse initiates the direct payment process by sending a written request to the appropriate finance center.
7* While eligibility for direct payment does not extend to former spouses whose overlap of marriage and service is less than 10 years, this is not a prerequisite to award of a share of retired pay as property to the former spouse (see Note 4).
8* To qualify for any health care provided or paid for by the military, the former spouse must be un-remarried and must not be covered by an employer-sponsored health care plan; see 10 U.S.C. §§1072(2)(F), 1072(2)(G) & 1072(2)(H). Department of the Army interpretation of this provision holds that termination of a subsequent marriage by divorce or death does not revive this benefit, but an annulment does. These remarriage and employer-insurance restrictions do not limit eligibility to enroll in the civilian health care insurance plan discussed in Note 11.
9* “Transitional health care” was created by Pub. L. 98-625, §645(c) (not codified), as a stop-gap measure while a civilian health care plan was negotiated for former spouses and other who lose an entitlement to receive military health care (see Note 11). The program subsequently was modified and narrowed by the National Defense Authorization Act, Fiscal Year 1989, Pub. L. 100-456, Title VI, §651, 102 Stat. 1990 (1988). Current program benefits are described at 10 U.S.C. §1078a., “Continued Health Benefits Coverage.” Qualifying former spouses are those who are un-remarried, who have no employer-sponsored health insurance, and who meet the “20/20/15” requirement (i.e., married to the member for at least 20 years, and the member has at least 20 years of service that are creditable for retirement purposes, and the marriage overlaps at least 15 years of the creditable service). Transitional health care now includes full military health care for one year after the date of the divorce, and during this period the former spouse is eligible to enroll in the civilian group health care plan negotiated by DOD (see Note 11*). Note that for health care purposes, 10 U.S.C. §1072(2)(G) treats a 20/20/15 former spouse as if he or she were a full 20/20/20 former spouse (20 years of marriage, 20 years of service, and 20 years of overlap) if the divorce decree is dated before April 1, 1995. A 20/20/15 former spouse of a reserve component retiree with a divorce decree prior to April 1, 1985, can receive full health care too, but only if the member survives to age 60 or if he or she elected to participate in the Reserve Component Survivor Benefit Program upon becoming retirement eligible.
10* “Full health care” includes health care at military treatment facilities and that provided through the TRICARE insurance program. A former spouse of a reserve component retiree is eligible for this benefit upon the retiree’s 60th birthday (or on the day the retiree would have been 60 if (s)he dies before reaching age 60) if (s)he meets the normal qualification rules (i.e., an un-remarried 20/20/20 former spouse who is not covered by an employer-sponsored health care plan); see 10 U.S.C. §1076(b)(2).
11* The Department of Defense Continued Health Care Benefit Program (CHCBP) may be found at 10 U.S.C. § 1078a. It is a premium-based program of temporary continued health benefits coverage available to eligible beneficiaries. Medical benefits mirror those available under the standard TRICARE program, but CHCBP is not part of TRICARE. For further information on this program, contact a military medical treatment facility health benefits advisor, or go to http://www.tricare.mil/chcbp.
12* Pursuant to statute and service regulations, commissary and PX benefits are to be available to a former spouse “to the same extent and on the same basis as the surviving spouse of a retired member….” Pub. L. 97-252, Title X, § 1005, 96 Stat. 737 (1982); see Army Regulation 640-3. The date of the divorce is no longer relevant for commissary and PX purposes. See Pub. L. 98-525, Title IV, §645, 98 Stat. 2549 (1984) (amending Uniformed Services Former Spouses’ Protection Act §1006(d)). The former spouse must be “unmarried,” and, unlike the rules for health care, any termination of a subsequent marriage revives these benefits. Qualified former spouses of reserve component retirees receive commissary and PX benefits when the retiree reaches age 60 (or when (s)he would have reached age 60 if the retiree dies before that time, but in such cases the entitlement arises only if the retiree elected to participate in the Reserve Component Survivor Benefit Plan when (s)he became retirement eligible; see AR 640-3). Notwithstanding the provision of the Act and the regulation, however, the extent of commissary and exchange privileges in overseas locations may be restricted by host-nation customs law.
13* When a retirement-eligible member receives a punitive discharge via court-martial, or is discharged via administrative separation processing, the member’s retirement benefits are lost. In certain cases where the court-martial or separation action was based on dependent abuse, eligible spouses may receive their court-ordered share of retired pay (divided as property) as if the member had actually retired. Authority for these payments was created in the National Defense Authorization Act, Fiscal Year 1993, §653, Pub. L. 103-484. An overlap of marriage and service of at least 10 years is a prerequisite to receipt of payments. The National Defense Authorization Act, Fiscal Year 1994, §555, Pub. L. 103-160, clarifies that eligibility begins on the date the sentence is approved and does not have to wait until the member is actually discharged.
14* The National Defense Authorization Act, Fiscal Year 1994, §554, Pub. L. 103-160, also creates authority for monthly transitional compensation to dependents of a non-retirement eligible member separated from the service by reason of dependent abuse.
Kristopher Hilscher is a board certified family law specialist practicing in Raleigh, NC. He works with attorneys nationwide on military divorce issues, drafting military pension division orders, and tackling many other military family law issues. He is the author of several articles on military divorce and serves as vice chair of the Military Committee of the ABA Family Law Section.
This column is submitted on behalf of the Family Law Section, Douglas A. Greenbaum chair, and Krystine Cardona, editor.
