“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), 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.
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, and statute of limitations 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. SBP must be elected within one year of the divorce decree. 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. 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.
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, 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.
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. 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, 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 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.
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.
 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).
 “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
 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).
 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).
 10 U.S.C. §1448(b)(3)(A)(i).
 10 U.S.C. §1448(b)(3)(A)(iii).
 10 U.S.C. §1448(b)(3)(E).
 10 U.S.C. §1448(b)(5).
 See 10 U.S.C. §1450(f)(3)(C) and further discussion herein.
 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).
 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.
 See, e.g., Carranza v. Carranza, 765 S.W.2d 32 (Ky. Ct. App. 1989).
 That is, TRICARE plus treatment on a space-available basis at military medical treatment facilities.
 10 U.S.C. 1078a; see also 32 C.F.R. 199.20.
 Mark E. Sullivan, The Military Divorce Handbook (ABA 3d ed. 2019).
This column is submitted on behalf of the Family Law Section, Douglas A. Greenbaum chair, and Krystine Cardona, editor.