By Gretchen A. Bundy-Ladowicz Staff Attorney and Former JAG Attorney The Gasper Law Group, PLLC
There seems to be a great deal of confusion, misinformation, and basic ignorance on the topic of the divisibility of a military pension in a dissolution proceeding. The short answer is that, yes, a military pension is marital property that is subject to division in a divorce proceeding. That being said, as is the case so frequently in the law, things are never as simple as the short answer.
The cornerstone statute addressing the division of military pension is the Uniformed Services Former Spouses’ Act (USFSPA). Before USFSPA, the United States Supreme Court had held in McCarty v. McCarty that the states were actually precluded from dividing military retired pay at divorce. The Court did not close the door completely on the issue. The Court went on to provide that Congress could change this through appropriate legislation. Thus, the USFSPA came to be and applies to disposable retired pay payable after June 25, 1981, the day of the McCarty decision, and to any court decree entered after that date. The Act provides that courts may, but are not required, to divide military retired pay incident to divorce.
The Act leaves to the states to determine whether military retired pay is a marital asset subject to division or a separate asset that is solely the property of the servicemember. In Colorado, disposable military retired pay is subject to equitable division. As is the case with the division of anything in a court of general equity, equitable does not mean mathematical equality. However, the method for determining a spouse’s share actually is a math equation. In 1995, the Colorado Supreme Court in In re Marriage of Hunt established the use of the “time rule” formula for division of military pensions:
Months of overlap of marriage and active duty military service __________________________ X .5 = The fraction of the servicememeber’s military retirement that is awardable to spouse.
Months of total active duty Service
It is a common misconception that a spouse must be married to a servicemember for ten years to be able to receive any division of a military retirement. If there is only one month of overlap between the marriage and active duty service, that one month is put into the above calculation to determine the fraction of the disposable military retirement that is awardable to the spouse. The number would not be big, but a small amount of the retirement would go to the spouse. It may be that this 10-year confusion comes from a misunderstanding of the Defense Finance and Accounting Service’s 10/10 Rule. Under the 10/10 rule, for DFAS to enforce a division of retired pay, meaning an involuntary allotment being paid directly to the former spouse, a member and a former spouse must have been married to each other for 10 years or more during which the member performed at least 10 years of military service credible towards retirement eligibility time. The 10/10 rule DOES NOT establish that a marriage of less than 10 years of overlap between the marriage and years of credible service towards retirement precludes the division of said retirement. The disposable military retired pay is indeed subject to division by a Colorado court, just not subject to enforcement by DFAS. One thing has been mentioned several times but has yet to be defined, and it’s definition is a big issue-what constitutes disposable military retirement! In our next installment, we will discuss that very topic.