The Importance Of A Detailed Military Pension Division Order In Divorce

The Importance of a Detailed Military Pension Division Order in Divorce

In a military divorce, simply finalizing the divorce is not enough to secure a former spouse’s share of military retirement benefits. One of the most critical steps following the divorce is preparing and submitting a military pension division order to the Defense Finance and Accounting Service (DFAS) to ensure direct payments. However, this order requires very specific language and attention to detail to be approved by DFAS. If the order is ambiguous or incomplete, it can lead to delays or even a denial of benefits to the former spouse.

This blog outlines the necessary elements for a military pension division order, including compliance with the Uniformed Services Former Spouses’ Protection Act (USFSPA), the Servicemembers Civil Relief Act (SCRA), and additional requirements for language around High-3 pay, creditable service, and more.

1. The Role of the USFSPA and Meeting Key Legal Requirements

The USFSPA allows state courts to treat military retirement benefits as marital property, which means they can be divided in a divorce. However, for DFAS to honor the division, the court order must meet strict federal guidelines and include key terms.

A properly prepared military pension division order must contain, among other things:

• The High-3 pay calculation (the average of the service member’s highest 36 months of pay),
• The total number of creditable service years completed by the service member,
• How the marital share of the pension is to be divided (which is typically based on the years of marriage overlapping with military service),
• Clear jurisdictional language showing the court had authority to issue the order (e.g., the service member’s residency, domicile, or consent to the jurisdiction), and
• The specific date of divorce, which is important for calculating the marital share of the retirement benefits.

2. Complying with the Servicemembers Civil Relief Act (SCRA)

If the service member is still on active duty at the time the court order is issued, compliance with the Servicemembers Civil Relief Act (SCRA) is mandatory. The SCRA protects service members from legal actions that could impact their civil rights while they are serving, and any court order dividing their retirement pay must state that the SCRA was complied with.

Without a clear declaration in the order that the court took into account the service member’s active duty status under SCRA, DFAS may reject the order. Including this language ensures that the division of benefits is valid and enforceable, even while the service member is still in service.

3. Ambiguity-Free Orders: High-3 Pay and Creditable Service

To avoid ambiguity, the order must provide specific numbers related to the service member’s pay data, particularly their "High-3 pay" as of the date of divorce and years of creditable service. DFAS requires exact figures to ensure clarity and precision, preventing any disputes later about how much the former spouse is entitled to.

DFAS will not process orders that are vague or open to multiple interpretations. Therefore, the division order must state:

• The High-3 calculation, which is the average of the highest 36 months of pay earned by the service member, and
• The service member’s years of creditable service as of the date of divorce, which determines the retirement multiplier used to calculate military retirement pay of the service member.

4. Division Methods: Percentage, Hypothetical, or Fixed Dollar Amount

When preparing the pension division order, it’s essential to choose the method by which the retirement will be divided. This can vary depending on the circumstances of the divorce and the service member’s retirement status.

The order can specify:

• A percentage of the disposable retirement pay,
• A fixed dollar amount of the disposable retirement pay, usually only appropriate if the service member has already retired and the retirement pay is fixed, or
• A hypothetical award, which is based on what the service member’s retirement would have been at the time of the divorce, assuming they retired at that moment.

Each method has its pros and cons, and selecting the appropriate method requires careful consideration of the service member’s retirement status and the goals of the divorce settlement.

5. Submitting the Order to DFAS

Once the pension division order is properly drafted, it must be submitted to DFAS along with all required documentation. DFAS will review the order to ensure compliance with USFSPA and other federal regulations. If the order is incorrect or incomplete, DFAS will reject it, causing delays in payment to the former spouse.

It’s also important to remember that DFAS will not accept the order and divide the military pension unless the order is free of ambiguity and all required elements are included. Any errors in the order will delay the process, and the former spouse may not receive their share of the pension until a correct order is submitted.

Conclusion: Why You Need a Military Divorce Attorney

Given the complexities involved in dividing military pensions, having an experienced attorney who understands the ins and outs of the USFSPA and DFAS requirements is essential. At our firm, led by former JAG attorneys, we specialize in preparing and submitting military pension division orders that meet all legal requirements and are free from ambiguity. Whether you need help drafting an order or understanding how your military pension will be divided, we can guide you through every step of the process.

Call to Action

If you need assistance preparing a military pension division order, contact us today at 301-952-9000 or use our online scheduling link (CLICK HERE) to set up a consultation. We’ll ensure your order is correctly drafted and submitted to protect your financial interests.

Disclaimer: This blog is for informational purposes only and does not constitute legal advice. Reading this blog does not create an attorney-client relationship. For specific legal advice, please contact us directly.