Changes in benefits that a servicemember could receive upon qualifying for retirement from the military service, make a revisit of provisions for division of retired pay imperative. The issue always arises in a dissolution proceedings.
This is a work in process, and not offered as legal advise or opinion. If this is an issue affecting you, you need to retain legal counsel and relie upon your attorney's advise in this legal matter.
On my proposed draft, I WOULD APPRECIATE COMMENTS, CHANGES QUESTIONS, setting forth what should be put into or removed from this division of military pay.
My proposed draft:
STATE OF MINNESOTA DISTRICT
COURT
COUNTY
OF JUDICIAL
DISTRICT
FAMILY COURT DIVISION
------------------------------------------------------------ Court File No.
In
Re the Marriage of:
,
Petitioner, ORDER DIVIDING PETITIONER’S
MILITARY RETIRED PAY
And (Active
Duty)
,
Respondent.
-----------------------------------------------------------------
This Order is issued pursuant to paragraph __ of the
parties dissolution decree which was signed by the Honorable ____________ on
_______________. The Order is issued to
divide the military retired pay of Petitioner,
*
SSN: On the attached
confidential information form.
and
direct for the payment of a portion of such retired pay to
Respondent,
*
SSN: On the attached
confidential information form.
as
more fully described herein.
1. The Petitioner's military retired pay constitutes
marital property to the extent that it is based on active duty service
performed between ______________ date of marriage at the same time of which
Respondent was on active duty with the United States __________ and _________,
200_ (the date Respondent retired from active duty service or date of
dissolution if still serving).
The
Respondent shall be entitled to receive as her share a percentage of the
Petitioner's retired pay calculated by using the following formula:
1/2
x a / b x 100 = %
½ x 17/ 20 x 100
= 42.5%
(a representing the number of years of marriage
during active duty, and b representing Petitioner’s total years of
active duty service).
In agreeing
to this formula, the parties assume that each will be responsible for state and
federal income tax on that portion of retired pay he or she receives after the
pay is divided.
2. The respondent’s right to receive her portion of
petitioner’s military retired pay shall begin on ______________ by agreement of
the parties. _____________ was the date
the parties Dissolution Decree that was signed by the Honorable ________________.
(If receiving retired pay benefits at
time of the dissolution). Petitioner
is currently receiving payment of his longevity retirement. .
3. (This
provision benefit the servicing servicmember, as it does not give credit to the
spouse for rank earned after the date of the dissolution). The amount due to the respondent under
this order shall be increased each time the Petitioner receives an active duty
pay, reserve pay or retired/retainer pay cost of living adjustment (COLA). The increase shall be the same percentage as
the cost of living adjustment the Petitioner receives
4. It is the Petitioner’s obligation to
pay to the respondent the monthly amounts set forth and due her under this
provision, and if the finance center, for any reason, does not withhold and pay
directly to the respondent the petitioner shall pay to the respondent the
difference between the amount she is entitled to receive under this provision
and the amount, if any, she receives through direct payment.
6. (
This paragraph through paragraph 10 are for the benefit of the spouse. It is intended to prevent the servicemember
from taking action post dissolution to reduce benefits to the spouse while
increasing a benefit to the servicemember).
It is the intent of the parties that the respondent receives payment
equal to ________% of the Petitioner’s gross retired pay each and every month
from the date of initiation plus COLA increase as set forth above.
7. The
petitioner shall not take any action which would defeat, reduce, or limit the
respondent’s right to receive her share of the petitioner’s military retired or
retainer pay benefits, including merging retired pay with other pensions, or
waiving any portion of retired or retainer pay in order to receive increased
disability pay. If petitioner does
breach this provision, he shall indemnify and pay directly to respondent any
sums reduced by such action.
8. If Petitioner becomes entitled to
Concurrent Retirement & Disability Pay (CRDP)
by receiving VA disability payments, Respondent shall have the right to the
same percentage of Petitioner’s CRDP benefits as she was awarded from
Petitioner’s retired pay benefits as set forth in this Order.
9. Petitioner agrees not to elect CSB/Redux which would reduce Respondent’s share of the
retired pay. Petitidoner agrees that if he exercises this option, he shall
immediately pay, upon receipt, to Respondent a sum equal to the application of
Respondent’s percentage share of Petiitioner’s retired pay benefits to the
CSB/Redux benefit. Respondent’s
percentage share is as set forth in paragraph 1 above.
10. The petitioner agrees to promptly provide
any information or documentation the respondent may need to complete a request
for direct payment of disposable retired or retainer pay form the appropriate
military finance center, addressed as follows:
Garnishment Operations Directorate
Code L-S54 2615 (last four digits of
service member’s SSN)
Defense Finance and Accounting Services
Cleveland Center
P.O. Box 998002
Cleveland, OH 44199-8002
(put
in an envelope certified mail and mark on the envelope, direct payment or survivor benefit)
11. The
petitioner shall designate the respondent as his beneficiary under the
Survivor’s Benefit Plan (SBP). The
petitioner shall elect the spouse-only option, and he shall select as the base
amount equal to fifty (50%) of his monthly gross retired or retainer pay. If retired/retainer pay benefits paid to
Respondent are not charged for the cost of SBP benefits she receives under this
Order, Respondent shall repay to Petitioner on a monthly basis the cost of
Petitioner of this SBP election. If not
voluntarily made each month, payment shall be made within five (5) days of
demand by Petitioner and proof of the SBP cost being charged to him or paid by
him.
12.
For purposes of this agreement, the term
“gross retired/retainer pay” means the monthly retirement benefit the
petitioner is entitled to receive, except that monthly Survivor Benefit Plan
(SBP) costs shall be deducted in calculating “gross retired/retainer pay” if
the petitioner has designated the respondent as the SBP beneficiary as required
by this agreement. It includes retired
or retainer pay paid or payable due to longevity of active duty and/or reserve
service and all payments paid under the provisions of Title 10, Chapter 61,
United States Code. It includes Current
Retirement and Disability pay (CRDP) if
received and all amounts of retired or retainer pay” the petitioner in any
manner actually or constructively waives or forfeits for any reason or purpose.
13. The parties hereto certify (i) that they
were married to each other ___ years, ( date of marriage – , date of
dissolution - ) during with time the
petitioner performed ten (10) years or more of credible service; and, (II) that at the time of the dissolution the Court
had jurisdiction over service member as required by 10 USC § 1408(c)
14. The parties shall comply with the terms of this order in good
faith and shall notify the court and the other party if there are any
substantial changes which would impact the retired pay of the Petitioner.
Examples of this include the remarriage of Respondent before age 50 (SBP
coverage ends) and election by Petitioner of VA disability compensation or
Combat-Related Special Compensation, either of which would diminish the
available retired pay of Petitioner (thus reducing the share for Respondent).
15. That upon issuance of the Court’s
judgment and decree incorporating the terms and provisions of this agreement,
respondent shall file with the designed agent of the military service an
application conforming to the requirements of DD form 2293, (or successor form)
Request for Respondent Payments from Retired Pay, or a signed statement giving
notice to make direct payments to the respondent from petitioner’s
retied/retainer pay, a certified copy of this Order, a statement that this Order has not been
amended, superseded, or set aside, identifying information on petitioner to
enable processing of the request, and a statement that the respondent shall
agree that any future overpayments are recoverable and subject to involuntary
collection from respondent or her estate.
16. The
petitioner shall cooperate in all acts, supply all documents and information,
which will facilitate the designated agent of the uniformed service to approve
and process this Order application.
17. The parties agree that the Court shall
retain jurisdiction over the issues raised in this provision indefinitely, so
that the terms of this provision can be subject to future modification by the
Court upon a showing that the intent of the parties is not being met by future
or present events.
18. That
respondent shall retain all right to garnishment provided for in 32 CFR 63, 5
CFR 581 and 42 USC 659.
THE RELIEFE HEREIN ORDERED IS EFFECTIVE _____________ THE
DATE OF THE PARTIES DISSOLUTION;
SO ORDERED THIS __________
DAY OF ______________, 2006
______________________________________
Judge
of District Court
