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Military Retirement Pay - Promotion Enhancements
Brian Mork, Ph.D. [Rev 2.2]
The 2017 National Defense Authorization Act is poised to implement
recommendations from this page. See the web page that will explain the 2017 NDAA amendment to USFSPA.
This page deals with the issue of dividing
military retired pay in divorce cases when the military person may be
promoted after the divorce. For more general issues, please see a
different page about Area Method
of military retirement pay, or specifically division
Reserve military retirement pay.
Military retirements are a significant benefit, earned by both women
and men. As of March 2011, there were more
than twice as many military women divorcing
than men. Among enlisted, the military women divorce rate is
about 3x that of men. The overall military divorce rate in 2011
than it was in 2001. Dollar value of a military retirement in 2012
dollars range from $945,000 for an E-7 to
$2,800,000 for an O-8. Military
divorce is a significant social
affecting both sexes.
Objective parties have weighed in on the issue of promotion
enhancements and it is finally being done properly with statutory law. Six examples:
- A 2001 United States Armed
Services Committee report to Congress concludes that retirement pay
increases attributable to promotions after a divorce and additional
time served by a military member after a divorce are the member’s
that accrue subsequently are the sole property of the party who
earned them. Post-divorce promotions and longevity pay increases are to
military retired pay (which is a defined benefit plan) what
post-divorce accruals and contributions are to private, defined benefit
and defined contribution plans.” (page 71)
- In 2005, the Florida
Third District Appellate Court reversed
(case 3D04-1468) and
directed that promotion enhancements are not divisible because Florida
law considers assets acquired after the dissolution to be non-marital
and not subject to distribution. Section 61.075(5)(a), Fla. Stat.
(2003). The circuit court gave the former wife a portion of the former
husband’s military retirement pay without expressly excluding
contingent, future post-dissolution increases. The appellate court
reversed because the overbroad language of the trial court allowed the
former wife to receive promotion enhancements post dissolution.
- In 2009, a Michigan
Appellate Court reversal explained that
and pay contingent on performance after a divorce (such as military
promotion) are not marital assets and are not to be divided, even if
they were received before
the divorce -- let alone if they didn't even exist until after
the divorce. See the Skelly v. Skelly opinion
on the webpage discussing statutes and
- On 5 May 2012, a new Oklahoma law
implemented the 2001 Federal recommendations. SB1951
Section 3(F) states:
state court determines that the disposable retired or retainer pay of a
military member is marital property, the court shall award an amount
consistent with the rank, pay grade, and time of service of the member
at the time of separation."
- On 28 October 2013 the Pennsylvania House Democratic Committee
held hearings on HB1192 which follows the
the court determines that the disposable retired pay or retainer pay
of a military member is martial property, the court will be required to
calculate the amount consistent with the rank, pay grade and length of
service of the member at the time separation."
- In 2017, the National Defense Authorization Act includes a
provision to set aside promotion enhancements outside of divorce from division. See
H.R 4909 Sec. 625 and S. 2943 Sec. 642. This is in response to a Department
of Defense report to the Armed Service Committes of Congress, which
recommended this as an equitable change. The Senate bill text says,
calculating the total monthly retired pay to which a member is entitled
for purposes of subparagraph (A), the following shall be used:
(i) The memberís pay grade and years of service at the time of the
(ii) The amount of pay that is payable at the time of the memberís
retirement to a member in the memberís pay grade and years of service
as fixed pursuant to clause (i)."
while the House bill text says,
entitlement] is to be determined using the member’s pay grade and years
of service at the time of the court order, rather than the member’s pay
grade and years of service at the time of retirement, unless the same’’
Depending on whether a military career
extends before a marriage or after a marriage, this could reduce
payments to either of the spouses. A 2017 NDAA USFSPA educational presentation
(slideshow pdf) is available.
Attorney Mark Sullivan jumped
on the bandwagon against it and ripped into the proposed law via an American Bar Association
white paper. Mr. Sullivan's paper is
against military, inciting sexist views that spouses are all females
being taken advantage of. It has three fundmental flaws
inconsistent with Mark's reputation as a national expert: 1) he creates
a strawman statement that a fixed
benefit will be forced on spouses "fixed and locked in time like a fly
amber", where the truth is a percentage formula is how the law
would be implemented, 2) he claims that COLA will not be paid to
ex-spouses with a resultant "stampede" of court cases, while, in fact,
COLA is paid to both parties for any
percentage method, and 3) he invokes constitutional arguments that the
Federal government should not affect divorce law and therefore
(hypocritically) asserts the
Federal USFSPA law affecting divorce should be left alone. You
can download a more complete rebuttal to Mark
Sullivan's / ABA's cheeky piece against the 2016 NDAA law
. or a shorter 2-page paper that just demonstrates the 2017 NDAA division formula
In addition to these opinions, consider the injustice
military member is re-married and the first spouse gets half of
promotion or longevity enhancements earned while married to a second
It is difficult to argue that a prior divorced spouse deserves what the
spouse contributes toward! Letting a divorced ex-spouse reach into the
future and take what they contributed nothing toward is damaging to a
party that has no voice in the legal system.
The rest of this web page argues that promotion enhancements after
divorce are not to be divided with an ex-spouse. This page
supports that should be done,
not how to do it.
methods to implement this idea are introduced elsewhere:
One last introductory point: I was asked to assist during a court
case in 2016 where the expert witness for opposing counsel interpreted
an order to not divide promotion, so he recommended to his client to
not divide promotion but to go after the longevity enhancements.
In order to forestall any such rabbit trail, know that whenever I refer
to the promotion enhancement, I
mean the enhancement of base pay when using an increased rank and/or
increased longevity year count.
- The Area
Method page. (a.k.a. Dual Coverture Value) which can handle all
- The Dual
Coverture method (calculated from time and rank), which can handle
more life situations such as duty before
marriage or multiple spouses.
DFAS Hypothetical [basepay] Method (benefit for ex-spouse is calculated
on hypothetical assumption that promotions did not happen)
As an aside, the expert witness's attempt resulted in a tangled
adivision order that was unacceptable to DFAS. I give the
opposing attorney great marks for aggresively supporting their client,
but that was grasping at impossibility. Remember we are dividing
dollars, not rank and not years. The DFAS Hypothetical Method is
about hypothetical base pay.
It is not about hypothetical rank (only) or hypothetical longevity
(only). In order to use a base pay chart to look up dollars, both
rank and longevity years must be used together. In order to
forestall the waste created by this argument that models reality in a
logically impossible way, I have begun editing my web pages to refer to
the "Hypothetical Basepay Method" instead of the shorthand
Promotion Enhancements Require a Dual Coverture
A military retirement is different than civilian retirements because it
is calculated from two values,
using 1) amount of service (points
or duty days), and
2) rank & longevity (value of
Reference 10 USC 12739, and 10 USC 1406 or 1407. The formula is
essentially the same for an Active Duty or Reserve retirement:
The two factors of service credit and rank are independent, and cannot
captured in one
number or fraction; a proper military coverture fraction is the result
fractions multiplied together: the time or Duty Fraction, and the Rank
Fraction. If only one ratio were used, the
non-military spouse would keep benefit all military promotions outside
the marriage. This damages a future spouse (innocent third party) and
is not equitable to the military member. In reverse, if duty
before marriage is to be excluded as a pre-marital asset with only one
ratio, the military member would benefit from excluding the early years
at a higher rank. Using a
single time fraction can damage EITHER party.
- retirement monthly pay = 2.5% * (years service credit) * (basepay
for rank) (Active Duty)
- retirement monthly pay = 2.5% * (points/360) * (basepay for rank)
promotions where promotions and longevity comingled into
one coverture ratio, military promotions are always unique,
special, or outstanding based on stratification of promotion
applicants, limited quotas, deployment records, testing results,
degrees, competitive formal performance reports, and professional
military education. Simply having longer longevity does not earn a promotion.
One way to visualize the situation is a 2-dimensional area like the
area of carpet in a room. The total value of the retirement asset
is represented by the area of the diagram. Coverture
fractions separate different sections for division or non-division.
A single coverture fraction divides the diagram left and right at the
time of divorce, giving the slant hash portion only to the military
member and making both the clear and dotted sections part of the
marital asset (subject to division). And so the problem is
obvious: the dotted portion,
which was earned due to actively earned promotions after the divorce,
must also be set aside from division. This is what common sense and the
quotes above describe, and what a second
coverture fraction does.
A similar diagram could be drawn showing solo military duty before
marriage. In this case, the portions to the top and portions to
the right are the white married contribution and the pre-marriage
shaded set aside is in the lower left side, at the lower ranks.
It's important to note the Area Method treats both parties fairly about
During the 2001 Congressional study, two prominent national attorneys
argued for dividing promotion enhancements after divorce. Perhaps
their motivations match one QDRO
which would have you believe this process is too difficult and
therefore equity should be abandoned for simplicity. Common wisdom
says, "follow the money" and I sadly realize that keeping things
complicated pays the bills of both the attorneys and the QDRO
In fact, anybody who can figure out the area of a room floor can divide
military retirement assets equitably. You simply multiply the total
retirement by two fractions to calculate the marital asset -- not
rocket science. Although the Dual Coverture
method can handle most situations, the precise details for every life
discussed in another web page describing the Area Method.
The 2001 Department
report to Congress (which considered input from dozens of National
organizations, bar associations, and others) says:
ex-spouse a portion of
post-marriage promotion benefit] of military retired pay is
inconsistent with the treatment of other marital assets in divorce
proceedings—only those assets that exist at the time of divorce or
separation are subject to division. Assets that are earned after a
divorce are the sole property of the party who earned them. Congress
should amend the USFSPA to base all awards of military retired pay on
the member’s rank and time served at the time of divorce. [It is proper
to] base all awards of military retired pay on the member’s rank and
time served at the time of divorce. This provision should be
exclusively prospective. The pay increases attributable to promotions
and additional time served should be the member’s separate property.”
“Assets that accrue subsequently are the sole property of the party who
earned them. Post-divorce promotions and longevity pay increases are to
military retired pay (which is a defined benefit plan) what
post-divorce accruals and contributions are to private, defined benefit
and defined contribution plans.” (page 71)
"Congress should amend the USFSPA to provide that
all awards of military retired pay be based on the member’s rank and
years of service at the time of divorce. [Current laws do not specify
one way or the other.] This provision should be
exclusively prospective. For example, if a future divorce occurs when
the member is an O-4 (i.e., Major/Lieutenant Commander) with 14 years
of creditable service, the award of military retired pay must be based
on that rank and time served. That the member retires as an O-6 (i.e,
Colonel/Captain) with 24 years of service is irrelevant to the award of
military retired pay as property. (page 71)
"The pay increase attributable to the promotions and additional
time served should be viewed as the member’s separate property.
[emphasis added] However, as a matter of equity, the former spouse
should benefit from
increases in the pay table applicable to the O-4 grade. Thus, as the
pay for an O-4 with 14 years of service is increased due to increases
in the pay table, so too is the value of the allocation to the former
spouse. The objective in this regard should be to provide the former
spouse, on a present value basis, with approximately the same amount of
retired pay that he or she would have actually received had payments
begun on divorce. DFAS should include a formula in its recommendations
that could be used by parties who divorce while the member is still on
active duty. (page 72)
In response to the last sentence quoted above, DFAS published in their attorney
what is known as the
"Hypothetical [Basepay] Method" formula to divide the retirement.
Unfortunately, the Hypothetical Method requires onerous mathematics and
has other limitations such as inability to handle militarly work before
After years of researching legal cases, Mork published the Dual
Coverture Value method in 2012 and the Area method
in 2015, which are plug-n-play replacements for Hypothetical Method in
the situations the Hypothetical Method can be applied, plus they handle
all other life situations.
methods are better than Hypothetical for several
simpler, more lucid, and broader
application while backward compatible with all existing methods. For
example, Hypothetical gives COLA annual increases to an ex-spouse
during the years between divorce and retirement, while giving military
paychart raises to the military member. Why the inequity?
If COLA just happens to be the same
military pay increases, Hypothetical, DCV, and Area Method all
give the same answer. If not, one spouse or the other is being
mistreated. If you are not
willing to use DCV or Area Method, that begs issues of intentional
inequity and judicial bias -- why should one spouse intentionally get
it's trivial to treat spouses equally?
The Report's recommendations are also manifest in statutes (e.g.
Section 3(F)) and court precedence. The only way to do what is written in the
quote above is the DFAS Hypothetical Method
or the one of Mork's methods.
If you are interested, you can download numerical examples, comparing
single time coverture (such as the California Brown method) to the Area
Method. To insist single coverture is done "because that's the
way we've always done it," reflects dishonor on a court system capable
of much better.
Promotion Enhancement Can Be Done Simply
Misunderstandings by one New Jersey appellate court reveal how
tangled the simple meaning of "during a marriage" can become.
The NJ court required the military member to prove that the
ex-spouse did not contribute to promotion earned after the
This is a twisted standard of proving something didn't
happen rather than having the ex-spouse demonstrate they did contribute
to work after the marriage. Mr.
Troyan published an opinion
that things have gotten more
complicated for his business of preparing divison orders because the final result of the NJ
Appellate opinion allowed promotions after a marriage to not be
divided. Contrary to Mr. Troyan's opinion, formulaic
determination is now much more unified and
coherent than ever before, based on DCV
methods. Multiplying the total retirement by two fractions to calculate the marital asset is not rocket science.
In order to reduce confusion, and because he did not reply to multiple
invitations for conversation, I dedicated
an entire section of a white
paper response to Mr. Troyan to
quantitatively establish that a promotion does or does not increase
the marital asset. Here are
short summaries from the much longer white paper, summarizing the
character of promotion enhancements:
- Chronological sequence
of dates are the presumed determination of what is "during a
Sans compelling reasons why not, dates should be used. If
something accrues chronologically after marriage, it wasn't during a
- Promotion is obviously required
for retirement promotion
enhancement, but is not sufficient
to cause it. Making a promotion manifest into an increased
payment requires 3 years of duty after
gaining the increased rank, so an ex-spouse would have to contribute
for 3 years after the promotion to contribute to the retirement
the promotion, per se).
- Promotions are special, unique, and competitive. Only a
portion of individuals can accomplish this by specific, difficult,
pro-active effort. Promotion enhancements are not the same as passive
increases due to passage of time. "Earning interest" is NOT the
same as "Earning retirement". Bluring this issue has been repeatedly
Mark Sullivan and propagated into the legal system because of his
association with the American Bar Association and the Reserve
- The military retirement system is mathematically precise and
explicit. It is easy to quantify and separate events of a
person's career. Values are not comingled.
application for promotion during (or soon after) the
marriage and NON-selection for promotion is prima
facia evidence that what a prior spouse contributed was not sufficient
for promotion. Often times, a military member is promoted on subsequent
attempts, demonstrating that it's the solo effort or shared
effort of a later
made the promotion possible. Honestly, the stress of a divorce can be
enough to handicap and military member and forestall or prevent a
enhancements after divorce taken by a first spouse will
deprive a second spouse of what is rightfully their contribution. Like
any other investment, if a spouse divests themselves of the marriage,
they should not expect returns after divesting. When stock shares are
sold, the second owner gets the returns.
Congressional Report Negates Dissent
Regardless of these qualities of promotion, some continue to argue
against the Dual Coverture and Hypothetical
methods. The DoD congressional report
tried to show generosity toward these disagreeable arguments.
They summarized the best arguments to divide promotions
(first paragraph page 59). The arguments come up short because
they are technically faulty and rely on confusing
unfamilar audience. Here are the three bad arguments and
- "Military member would not have attained final rank but for
contributions made by former spouse during marriage. Promotion is based
on married years." This
argument is vacuous because all things later in life are "based on"
prior life and that is an insufficient test to classify anything as a
assets. See below
or another another
to read a direct rebuttal to the "based on" argument. The phrase "based
on" conjurs up a concept of dependecy
or comingling, while slipping in words that have no legal definition.
Gaining a new benefit "based on" history is NOT
thing as shared effort creating that benefit. More indicitive of
this argument's hypocrisy is that when military duty is done before
marriage, everybody freely allows the marital asset to be "based on"
prior solo effort without compensation to the solo effort.
Example 1 - What if a military pilot later got a civilian pilot
job "based on" pilot training and experience received during married
years. This does not allow the ex-spouse to divide a retirement
from the civilian pilot job.
Example 2 - A person will never attain age 50 but for the first 18
years, yet a parent can't obligate a child's earnings later in life for this
Example 3 - What if the ex-spouse wrote a book based on being married
to a military member? That would not be possible "but for" the
military member's contribution during marriage, and it's definitely
"based on" the military members contribution. However, this would not
allow the military member to receive part of the book proceeds because
they didn't help write the book no matter what it was based on.
Example 4 - Nobody would propose sharing a court win with prior
litigants because the decision was based on on their prior case law.
Based on is a vague and insufficient standard!
Example 5 - In many cases there would be no military retirement
but for the fact that the military person works more years past the
divorce, so why should the ex-spouse get anything? USFSPA itself
dismantled this based on argument when used by the military member, so it should also
be refused for the non-military
Example 6 - The claim that "a military member's non-divisible
benefit is calculated from the ex-spouse's divisible points (and
therefore cheating the ex-spouse)," is a moot point of
perspective. If true, the reverse is equally true: "the
ex-spouse's benefit is calculated from the military member's
non-divisible points (and therefore cheating the military
member)." It works both ways! "Calculated from" is simply a
mathematical necessity, not a threshold criterion of divisibility, and it is not
an appropriate test for a marital asset.
Example 7 - Divorce decrees use phrases like "earned during the
marriage" or "accrued during the marriage". Words have
important legal maning. Division orders (which are legally required to
follow the divorce decree) must not introduce vague phrase or fabricate
new dependencies such as "base on".
the denominator of the coverture fraction reduces the
of the former spouse." This argument is faulty because the share
does NOT reduce.
The statement relies on confusing the
words - "share" "portion" "fraction" "dollar" "percentage", etc.
One must clarify what is really
being said. When increasing the
denominator, does the marital
asset change value? No. Does the
spousal dollar amount
decrease? No. Does the fractional percentage decrease?
Yes, because the overall retirement increases to exactly offset.
For example $50 is 1/2 of $100, but $50 is 1/3 of $150. The
increasing denominator reduces the share of the total retirement, and ensures the
proportion of the marital asset does NOT change (except time-value of
money, which both parties would receive).
- "Spouse must wait until member retires to receive payments and
be compensated." This argument obliquely implies that only
ex-spouse has to wait. In fact, due to Federal Law both parties
have to wait to
receive anything--and both ARE
compensated with Hypothetical and Dual
Coverture methods, which recognize rank changes. This argument
attempts to establish a windfall for the ex-spouse when the
military member doesn't even have that right yet! Michigan
Appellate Court wrote that that
"dividing [potentially] zero retirement is not in error," implying that
it would not coerce a military
member to continue doing duty. All
discussed in these web pages DO compensate both parties, so this
argument is a specious distractor. Only the Mork methods (DC,
DCV, Area Method) compensate
both parties the
same regarding time-value of money.
Hypothetical method compensates one person with COLA during the
"waiting months" and
compensates the other with military salary increases. There is no
choose Hypothetical Method over Dual Coverture Value unless one is
intentionally choosing inequity.
"Based On" Cause Confusion
practice, the phrase "based on" and "but for" are legally
undefined phrases, which have caused great damage to military members.
"Based on", "but for", and "provided a basis for" concepts are
specifically critiqued in the Sullivan rebuttal
available in the references section below.
It's important to distinguish two issues. One is a potential
debate about how a marital asset is divided. The more important
issue is whether something is a marital asset in the first place.
If an enhanced promotion benefit was "earned" or "accrued" without
spousal contribution after the divorce, it is not a marital asset no
matter what it is "based on" or how it is calculated.
The phrase "based on" is legally vague and obscures good
judgment. Any use of this word in military retirement
divorce proceedings really means one of only two things:
1) "Based on" could mean "Accrued during". Example: "The
retirement payment increased based on additional duty done during the
marriage." In this case UFSPA law directs that retirement can be
2) "Based on" could mean, "Derived from" or "Calculated
from". Example, "Ex-spouse wrote a book based on being
married to the other person." Book earnings are not divided
even though it taps into and uses time of marriage. Example,
"DFAS Hypothetical division method is based on Consumer Price Index
(CPI) numbers." Nothing about CPI is shared or divided just
because it's in the calculation.
These two meanings create HUGE differences when dividing military
benefit. It's to the military member's benefit to be clear.
It's to the ex-spouse's benefit to be vague because without
distinction, more of #2 situations can be drawn into #1. In either
case, to ~intentionally~ be vague dishonors the entire intent of our
Nation's legal system.
There are multiple sequential steps to dividing assets that a court
must do. If any one of these steps are skipped, court orders are
susceptable to successfull appeal, assuming proper documentation was
submitted during the original court action. Here are the steps:
allows a military retirement to be divided as a marital asset, and
almost always divorce decrees will specify to divide only "...the
earned during the marriage" because it's kind of obvious that all the
rest of the retirement is
not a marital asset. Portions earned outside the marriage that
are quantifiably separate retirement point value do not get past the
first step. Only the portion of the retirement actively earned during
marriage is divisible.
- Determine if something is a marital asset. USFSPA allows, but
not direct, a court to consider military retirement as a marital
asset. All of the military retirement
is a marital asset only if all
of the military career was during the marriage.
asset values as of some date. This is
the date of separation, the date of filing divorce, or the date of
final divorce order. Determining marital asset value is the
entire point of a retirement coverture fraction. An enhanced
retirement value does not manifest or acrue until 3 years of continued
duty after a promotion date.
how to divide the marital asset. Many courts simply go
with 50:50 of the marital asset. USFSPA forbids the military member to
be left with less than 50% of the retirement, even if there are
It is worth nothing that the Area Method
handling of military duty and promotion before and after the marriage,
any other combination of multiple marriages, divorces, and military
other method, including the DFAS Hypothetical Method, is capable of
Here are some Q&A
that might help.
Q1: Aren't promotion enhancement based on prior contribution by
A1: No. The U.S. Supreme Court forbid division of any
military retirement that required additional solo work contribution by
the military member after divorce. Subsequent USFSPA law allows for
division of military retirement because of co-mingling of duty
dates. There is no co-mingling for a promotion
enhancement. The marital asset is numerically and quantifiably
separable with simple math, yielding the single number percentage
required by DFAS. Blurring dates is done only by someone
trying to take more than is equitable.
Q2: Isn't the promotion enhancement based on prior rank and duty, which
the spouse contributed to?
A2: No. I think you mean "calculated from" instead of "based on."
like some DFAS divisions are calculated from Federal COLA numbers, the
promotion enhancement is calculated from solo duty credit and dual duty
credit, plus other numbers. Service credit points are not owned
and division of value calculated from points is based on *earning*
points not *calculating* with them.
To believe otherwise is analogous
to saying 401(k) contributions done years after a marriage are
divisible because the 401(k) account existed during the marriage, and
is thus "based on" marriage activity. The
divisible portion of the marital asset must not go up or down because
of anything accomplished by either spouse after the divorce. Making
the conclusion even stronger, two additional points are relevant:
Q3: The military member is building value of points earned during the
marriage, so shouldn't enhanced value based on those points be divided?
- Often a person is declined promotion for one or more attempts,
and if that occurs after an ex-spouse stops contributing, it's pretty
clear that the ex-spouse contribution did not accrue a promotion.
- If a promotion happens after divorce, it's nigh impossible to
claim the spouse continued to contribute during the required 3
vesting after promotion.
A3: No. The military member should be free and clear to use what
they are left with after the divorce in order to improve life for
themselves after the divorce. The marital asset (dollar value of
the points) was already divided. The points themselves, stripped
of nominally half their value by the division order, are not to be
encumbered. Any post-divorce promotion contract with the
government that gives additional worth additional value is not to be
divided. That additional value does not comingle, nor increase,
nor decrease the previous value.
Imagine this court exchange:
Q: But won’t the military member’s income be higher because of duty days earned during the marriage?
A: No. Points or duty days have no value in and of
themselves. Use of the points at higher rank was accrued 100%
after the divorce. The litmus test laid out by the Kilbride
Appellate Court for a proper division formula is that nothing either spouse does after the divorce should increase or decrease the marital asset.
It’s not a question of dividing a good thing after the divorce, it’s a
question of whether the marital asset changes value. It does
not. Extracting additional value after the divorce from
pre-existing rank or pre-existing points is both a burden and a
blessing that belongs only to the person that does it.
Q: Right, but if pre-existing points were not present or the prior rank
was not present, then the benefit would be lower for the military
member, wouldn’t it?
A: If the points were not present or rank was not present, then
benefits would be lower for both parties. It’s problematic to
hypothesize about non-historical non-truth. Instead, we’re asking
the court to make a distinction about what DID happen - between how a
benefit is calculated and how it was earned or accrued. As a
precedence, consider that the Skelly Appellate court clarified that
even after a benefit is paid and in the bank during a marriage, it is
not a divisible marital asset if it was earned and the right to keep it
was accrued after the divorce. We are asking the court to honor
the intent of divorce law by dividing what was accrued during the
marriage. Tallies of points and rank cannot be enjoyed as a
retirement benefit by anybody and have no value. The USE of
points and rank creates retirement benefit. The right to USE were
100% accrued after the divorce.
Notice confusions come from using the legally vague phrase "based
on". Instead, make the question more precise using phrases
like "earned during" or "calculated from" and the questions have
self-evident answers. Division order documents almost always say
"earned during" or "accrued during". Introducing the phrase
"based on" is usually done later by people
intending to malign the intent of the division order.
Dissent of Two Nationally Known Attorneys Fails
A few attorneys in the area of military family law
continue to disagree with the DoD report recommendation. In
they argue that
promotions enhancements earned outside the bounds of the marriage
are marital assets and should be divided. IMHO, this is a huge
disservice to military officers, and I cannot understand why the
Reserve Officer Association advocates and promotes one of the
attorneys, who has publicly opined in this way against military
you are a ROA member, write the chief ROA legal counsel and ask.
North Carolina attorney Mark Sullivan disagrees
with the Armed
Services Committee Report, the Oklahoma legislature, Michigan and
Florida appellate courts, and the
Department of Defense, believing that
retirement contributions made years after a divorce should be
divided as marital assets. Mr.
Sullivan's critique of the DoD report is available from the Military
the American Bar Association (ABA) Family Law section.
Sullivan's arguments do not hold water; see
my rebuttal memorandum in the references below. Mr. Sullivan's
position is analogous
to saying 401(k) contributions done years after a marriage are
divisible because the 401(k) account existed during the marriage, and
is thus "based on" marriage activity.
In fact, military members can now do a 401(k)-like retirement
called TSP. Because of the juxtaposition, it will be interesting
to see where Mr. Sullivan positions himself. There seems to be only 3
There is more. In fact,
be downloaded under the ABA web page section titled "Military Pension
Reform". Both documents present arguments for dividing promotion enhancements
earned after a marriage. The other document is a related 1999 Official
paper by Nevada attorney Marshal S. Willick
which was sent to the DoD committee as input for the committee to
consider. There are no documents available on the ABA web page taking
the other position, and they have declined to host or link to my
- Promotion enhancement and TSP contributions done outside the
window of marriage are not marital assets. This would require a
change in his published belief and arguments before court about
- Promotion enhancements and TSP contributions done outside the
window of marriage are marital assets and should be divided. This
is intolerably in conflict with hundreds of other TSP/401(k) divorce
contributions made after divorce are never considered marital property.
- If a military member increases their retirement with work and
merit promotions after the marriage, it IS divisible. But if they
take pay from the work and promotions, and stick it into the TSP then
it is NOT divisible. This seems intolerably hypocritical, and
capriciously negates utility of one type of retirement savings from the
military person for the rest of their life.
Sullivan's document has foundational errors that may have started as
simple confusion. In contrast, Willick's
work is openly caustic toward military
using phrases like "proposals floated by extremists" to describe the
of the Federal DoD Report to the Armed Services Committee of the U.S.
Congress. Willick makes misleading and sexist
statements like "the longer the husband worked after divorce, the
smaller the wife's portion became. The court accepted the wife's
position that to 'lock in' the value of the wife's interest to the
value at divorce, while delaying payment to actual retirement,
prevented the wife from 'earning a reasonable return on her
Mr. Willick's claims are
technically faulty, while at the same time he emotionally appeals for
personal trust in his ABA paper. For example, the above red
herring claim about "smaller", "locked in", and "no return on interest"
is exactly opposite of the
well-research Congressional Report, and is discredited in a rebuttal
to Mark Sullivan's editorial. It appears that Mr. Willick
engages in tit-for-tat inflammatory
language with the USFSPA Liberation
Support Group, such as that found in Willick's
5 December 2011 public web posting.
I am trying to shed light
and equity on the technical
to do so.
Ironically, on page 3 of his December 2011 paper, Willick honors the
recommendation to Congress to implement what became USFSPA. He
should also honor the DOD recommendations to Congress quoted above that
respect post-marriage military effort belonging only to the military
Mr. Willick claims:
"[Using rank at time of divorce], if
the member delayed the spouse's receipt of military retired pay by
choosing to remain in service (accruing further increases in rank and
length of service), then the spouse obtains some compensation for that
delay, in the form of a few more dollars per month when the benefits do
begin, even though the former spouse's share is an ever-smaller
percentage of the benefit. This is sometimes called the "smaller slice
of the larger pie." I have personally checked the math, and in terms of
lifetime collection, the best that a former spouse can do under the
time rule, in normal circumstances when the member continues service,
is to almost break even."
"I have independently verified the mathematical effects of the various
approaches taken by the state courts. Unless Congress is willing to
also mandate that the states adopt rules requiring payments to spouses
at each members' first eligibility for retirement, regardless of the
date of actual retirement, I estimate that a "rank at divorce" proposal
would result in a reduction in the value of the spousal share by at
Mr. Willick is incorrect:
It's unclear why the American Bar Association published
Willick's inflammatory and technically faulty position paper as a
statement of their official position. Doing so
makes the ABA
distinctly not neutral toward military members. If you believe
the ABA should also make available a different view, please contact
them and ask them to post the rebuttal available in the reference
section below. Any attorney should be able to argue for their
client. However, ABA's and Willick's and Sullivan's position are
not in defense of a particular client. The position is taken a
public, advocating to invade military retirement actively earned
outside of the marriage. IMHO, there is no way I would hire them if I
were a military
member. My true hope is that they are honestly confused, and
perhaps my simple yet powerful Area Methods
will change their viewpoints.
- He claims a member delays an ex-spouse's receipt of money by
"choosing to remain in service"? Would Mr. Willick have a court
order a military member to stop serving their country and become
unemployed? When the military member stays in the military, the
ex-spouse rides on
the coat-tails of a
guaranteed return on investment in the form of COLA and/or military
raises--same as what the military member themselves receives. Mr
Willick appears surprisingly blind to this fact. Both members do
not have a choice to "cash out earlier".
ex-spouse's dollar portion of the marital asset does NOT
when a military member keeps working. In fact, an excellent
litmus test of a good division is that the ex-spouse portion does not
go up or down based on post-divorce work of either person.
Willick's arguments fail this test. Note ex-spouse's value is NOT
in at the time of the divorce, but rather increases due to COLA or
military pay chart raises. COLA or military pay charts ARE a reasonable
return on interest.
ex-spouse does not get only "a few more dollars per month.." but gets
COLA raises or military pay chart raises every year. To give any more
passive increases to the ex-spouse would give the ex-spouse MORE
increases than the
member themselves get as passive increases. He identifies the
supposed problem of a former spouse "breaking even". Since the
former spouse does not contribute after the divorce, they are suppose to break even, not get more!
slice of the larger pie" is faulty, manipulative
After a divorce, the marital asset does NOT get larger so the the
"larger pie" phrase is inappropriate, and the
ex-spouses fraction of the marital asset does NOT
get smaller, so thoe "smaller slice" phrase is inappropriate. For
clarify, the proper phrase is, "The marital asset should not get larger
or smaller based on anything spouses do after marriage." The Dual
Coverture or Hypothetical Method are the
appropriate methods to handle the situation. Willick appeals to
personal trust of his mathematics, but fails
to show the calculations. I go to great detail and show all the
supporting math in documents available in the reference
- Mr. Willick assures the reader he has personally verified
mathematics showing that "rank at divorce" reduces the payments to the
spouse "by at least 13%". This borders on manipulative deceit if
what he means is that when
promotion enhancements are properly
given to the retiree working after
divorce, the ex-spouse fails to get a 13% inequitable wind-fall.
Such manipulative language does not create clarity. I am not sure what
he means because he again does not show the math, and appeals only to
personal assurances. Please see the mathematics
sections of my documents. Go through my math and let me know of any
There is considerable motivation for an attorney
to obtain judgment against a military member because an attorney-client
agreement collecting a portion of the proceeds on contingency basis
would essentially guarantee the attorney a monthly income for the life
of the military member (and beyond if SBP annuity insurance is included
in the award). Similar to how an ex-spouse of multiple military
collect portions of multiple military retirements, an attorney can do
even better financially. Military retirement assets can be worth
$945,000 to $2
million (20 yr E-7 to 30 yr O-8, living to age 75). I've seen
contingency agreements purporting to be Willick's contingency
agreements of 50%. Mark Sullivan's web pages linked from the Reserve
Officer Association suggests 25-40% contingencies. Mr. Willick's
letter available at the ABA website identified that he handled
hundreds of cases as of 1999. Winning contingency
cases against people with
military retirement assets is a lucrative business. It takes
considerable integrity in this
environment to pursue equity, and considerable patience by the judges
to see through misleading arguments put forward.
The pay arm of the military (DFAS) implemented DoD Congressional Report
DFAS Recommendation to Attorneys document in the form of the
Method. The Area Method referenced at the bottom of
this page gives
the same numerical result (coverture fractions are the same), and is a
lot simpler to understand.
Both preserve the ex-spouse dollar
amount as a military member works more, and then, on
top of that, both methods award COLA or military wage increases for all
divorce, up to retirement, and all pay chart increases after
retirement. If you want to understand the Hypothetical Method, see step
(D)(2)(b), page 9, of the DFAS recommendation to
attorneys document, in the Resources section at the bottom of this
page. Or, if you want to understand the simpler Dual Coverture method,
see the calculations I personally have published, as
documented in the
Attorney Instructions for Division of Reserve
Military Retirement, also in the references section below.
As an example of an attorney damaging Reservists who earn promotion
ehancements before or after the marriage, Mark Sullivan's divorce questionnaire
page provides for promotion after the divorce for Active Duty
retirement (Paragraph (a)(iv)), but does not offer that possibility for
a Reservist. Mr. Sullivan is incorrect to write "ONE of the
methods must be used"
(capitalization his). It
is not true that
something on his list must be selected. The only thing DFAS
requires is a fixed award (dollar amount per month) or a percentage
award (percentage per month). It's disingenuous to pretend the
method to generate the percentage must come from his list. As I
said above, I would not
hire him to represent a military member unless he first changes his a
priori bias against military.
Hypothetical or Dual Coveture methods are
appropriate and equivalent for either
Reserve or Active Duty retirements -- including any time a promotion is
earned outside the marriage. In fact, when promotions outside of
the marriage are involved, any other method inappropriately divides
retirement pay that is not a marital asset. Note that some extra info
required to submit the Hypothetical Method to DFAS is not
necessary if you use the mathematically equivalent Dual Coverture
method. Also, the Dual Coverture method handles non-marital promotion
enhancements both after and before
the marriage (Hypothetical does not).
Willick's comments were done before the DoD report. Sullivan's comments
after the detailed DoD report to Congress was completed. Sullivan's
credentials cannot dispute facts. He's declined several times to
interactively talk through these issues with me. If you are a
military member, before you hire him, ask
him, "If promoted after divorce, should the ex-spouse share in the
enhanced promotion value?" Sullivan's arguments represent
accrued vs. actively earned benefits, causing tremendous detriment
Please download the memorandums from this page, read them, and consider
their value. I
am open to interactive discussion to clarify any of these issues with
spouses, attorneys or others of the legal community. I continue
to strive for equity for both parties of a divorce, integrity exhibited
by the attorneys, and lucid clarity for the courts. Feel free to
contact me if I can help your legal situation.
- DFAS "Guidance on Dividing Military Retired
Pay", March 2014, 25 pdf pages
with bad formatting, 121 KB pdf. (DFAS.mil,
- Older copy April 2012, 20 pgs, 119
KB pdf. (DFAS.mil,
- Older copy "Attorney
Instructions - Dividing
Military Retired Pay", April 2001,
19 pgs, 74kb pdf. (DFAS.mil,
- DoD Report to Committee on Armed Services of the US Senate and
House of Representatives, 2001. (Defense.gov,
pgs, 279kb pdf)
Instructions - Division of Reserve and Active Duty
Military Retirement, Mork, 2012. (increa
Willick position paper to DoD Report committee. 1999.
- Marshall Willick position paper
Sullivan editorial regarding the DoD Report to Congress. 2001.
- Division of Military Retirement
Promotion Enhancements Earned After Divorce, Mork, 2012 - a
rebuttal to Mark Sullivan's 2001 editorial (increa
- Appellate Court of Illinois Marriage
of Wisniewski, 675 N.E.2d 1362, 1369 (Ill. Ct. App. 1997).
- Oklahoma state SB1951, signed
into law 5 May 2012 (6 pages).
Division Orders after New Jersey's 2011 Decisions" - a
reply to Mr. William Troyan web posting.
- Numerical comparison of single
coverture vs. DCV.
- Mark Sullivan's August 2016 "hit piece" against the 2017 NDAA amendment.
- Supporting the 2017 NDAA law, rebutting Mark Sullivan's paper.
- Demonstration of the 2017 NDAA law division formula.
- National Defense Authorization Act (NDAA) amendment to US Former Spouses Protection Act (USFSPA) - a slideshow primer.
shell of this document was created
under the Linux
desktop. Content was edited using Kompozer.
Brian Mork, Ph.D.