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Military Retirement Benefits in Divorce

The Willick Law Group has substantial experience dealing with military retirement benefits cases. Marshal Willick wrote the first textbook in this subject area, “Military Retirement Benefits in Divorce: A Lawyer’s Guide to Valuation and Distribution” for the American Bar Association in 1998, and has written articles and taught continuing legal education seminars on the subject for several decades.

The materials below, including a summary of the changes to the USFSPA as a result of the 2017 NDAA, a comprehensive article on division of military retirement benefits, a Survivor’s Benefit Plan cost-shifting calculator, and other links and explanatory exhibits are intended to provide a resource for those working in this area or subject or interested in learning it.

Checklist for Military Retirement Benefit Cases (May, 2017)
Military Divorce MRB/SBP Order Questionnaire
DD Form 2656-10 SBP Request for Deemed Election (Official DoD form, current edition)

Suggested Language for Any Decree of Divorce Implicating a Military Retirement (2024)

The court reserves jurisdiction to issue and enforce an Order Incident to Decree fully addressing and specifying the distribution of military retirement benefits including such clauses as are necessary to address all future contingencies.

Former Spouse is to receive 50% of the marital share of the military retirement in accordance with the laws of this state. Any amounts not payable by the Defense Finance and Accounting Service are to be paid directly by the member to the former spouse. Former Spouse shall be entitled to Cost of Living Adjustments to this award if and when granted by the United States Government. Former Spouse shall be named as the irrevocable beneficiary of the survivor benefit plan (SBP) with the full amount of the retired pay being used as the base amount. Former Spouse is entitled to 50% of the marital share of the Thrift Savings Plan.

Military cases involve unique and technical issues. The Willick Law Group often assists litigants and lawyers throughout the country, drafting orders, consulting, or providing expert witness testimony in military cases. We welcome calls or e-mails from litigants or attorneys who have need for more direct assistance with their cases.

Call: (702) 438-4100

From periodically – updated CLE materials:

Calculators

NOTE: The universal SBP premium-shifting calculator was designed before NDAA-17, and now should only be used for cases in which the service-member has already retired.

Press Release for SBP Premium Calculator
Active Duty Military Retirement Calculator – Frozen Benefit Rule
New Reserve Retirement Calculator – Frozen Benefit Rule
Universal SBP Premium-Shifting Calculator in Excel (Microsoft)
Universal SBA Premium-Shifting Calculator in Quattro Pro (Corel)
Military Pay Calculator (calculator for “RMC” — converts non-taxable elements of military compensation, such as BAH, or BAS, into their taxable equivalency for support, comparative household income, and similar calculations).

Benefits in Divorce (1998)

A Lawyer’s Guide to Valuation and Distribution by Marshal S. Willick

Price: $25

Covers all aspects of cases with military benefits, showing you how to:

Value retirement plans and other service benefits
Obtain information and payment from military pay centers
Manage multi-state and international litigation
Handle survivorship benefits
Deal with jurisdiction traps
Obtain direct payment of benefits
Appeal adverse decisions

Additional Military related articles and information:

10 U.S.C. 1408 (Uniformed Services Former Spouses Protection Act)(Dec 2016)
Thrift Savings Plan for Military Members
Military Retired Pay and the Dangers of “REDUX”
Disability Benefits and “Concurrent Receipt”
American Bar Association: Military Committee
AAML Position Paper on 2001 Review of USFSPA
Military Retirement Benefits Teleclass Outline
Military and Veteran Reference
Roll Call (Newsletter of the Military Committee, ABA Family Law Section: Vol. 2008-1, Summer, 2008, on use of the CHCBP as a long-term health care option for former military spouses).
- It may be good idea to remind folks that seek Indefinite CHCBP Coverage (i.e., beyond 36 months) that the “front line” Customer Service Reps at the CHCBP Administrators are NOT well briefed on the “indefinite CHCBP Coverage” issue for qualifying former spouses. Clients approaching that Threshold should ask to speak with a CHCBP Administrator Supervisor and usually they are better informed. What I’ve discovered happens as the Former Spouse approaches the 36 month threshold is that front line Customer Service Reps (and TRICARE Service Center Representatives) will tell callers that 36 months is the “max” they can get. Unless the Former Spouse perseveres and asked to speak with a Supervisor, they will just give up. The Supervisor will advise the Former Spouse to submit their CHCBP Application as usual, and attached a copy of their Divorce Decree, Settlement Agreement, DRO, MPDO, or whatever they have to show they are entitled to a portion of MRP and/or FS SBP coverage. They should also submit a letter stating why CHCBP coverage is the ONLY available coverage they have, and to formally/specifically ask for “Indefinite CHCBP Coverage.” That will usually do the trick. Contributed by John Camp Note About Carry-Over Health Coverage to Replace the SBP:Historical Military Pay Tables:

Historical Military Pay Tables

DFAS Web Site

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Frequently Asked Questions

Is military retirement pay divided in a Nevada divorce?

Yes. Military retirement benefits earned during the marriage are community property in Nevada and are divided at divorce under the federal Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. 1408, together with Nevada law. The usual award is that the former spouse receives 50 percent of the marital share of the military retirement, with any amounts not payable by the Defense Finance and Accounting Service (DFAS) paid directly by the service member. Cost of living adjustments and the Thrift Savings Plan should also be addressed.

Is there a military retirement divorce calculator?

Willick Law Group posts several calculators for military divorce cases: an Active Duty Military Retirement Calculator and a Reserve Retirement Calculator, both built for the ‘frozen benefit rule’ that the 2017 National Defense Authorization Act added to the USFSPA for members who had not yet retired at divorce, and a Universal SBP Premium-Shifting Calculator for Survivor Benefit Plan costs. The SBP calculator predates NDAA-17 and should be used only when the service member has already retired. These tools give estimates; the decree and the order submitted to DFAS control.

What should a Nevada divorce decree say about military retirement?

At a minimum, the decree should reserve the court’s jurisdiction to issue and enforce an Order Incident to Decree that fully specifies the division of the military retirement and addresses future contingencies. Willick Law Group’s suggested 2024 language awards the former spouse 50 percent of the marital share under Nevada law, requires the member to pay directly any amount DFAS will not pay, grants cost of living adjustments, names the former spouse as irrevocable Survivor Benefit Plan beneficiary, and divides the Thrift Savings Plan.

Why does the Survivor Benefit Plan matter in a military divorce?

The Survivor Benefit Plan (SBP) is what continues payments to a former spouse after the service member dies; without an SBP election, the former spouse’s share of the retirement ends at the member’s death. Willick Law Group’s suggested decree language names the former spouse as the irrevocable SBP beneficiary using the full retired pay as the base amount. A former spouse must also submit a timely deemed election on DD Form 2656-10, and the SBP premium cost can be shifted between the parties.

Does Willick Law Group handle military divorce cases outside Nevada?

Yes. Marshal S. Willick wrote the first textbook on the subject, ‘Military Retirement Benefits in Divorce: A Lawyer’s Guide to Valuation and Distribution’, published by the American Bar Association in 1998, and has written and taught continuing legal education on military pension division for decades. The firm regularly assists litigants and lawyers throughout the country by drafting military retired pay division orders, consulting on cases, and providing expert witness testimony. Willick Law Group can review your situation in a consultation.