Division of Military Retirement Pay - Promotion Enhancements

© 2015 Brian Mork, Ph.D. [Rev 2.0]

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Introduction

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 division of military retirement pay, or specifically division of 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 is 64% higher 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 issue affecting both sexes.

Objective parties have weighed in on the issue of promotion enhancements.  Five examples:
  1. 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 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)

  2. 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.

  3. In 2009, a Michigan Appellate Court reversal explained that bonuses 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 case law.

  4. On 5 May 2012, a new Oklahoma law implemented the 2001 Federal recommendations.  SB1951 Section 3(F) states:

    "If a 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."

  5. On 28 October 2013 the Pennsylvania House Democratic Committee held hearings on HB1192 which follows the Federal recommendations:

    "If 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 addition to these opinions, consider the injustice if a military member is re-married and the first spouse gets half of promotion or longevity enhancements earned while married to a second spouse.  It is difficult to argue that a prior divorced spouse deserves what the second spouse contributes toward! Letting a divorced ex-spouse reach into the future and take what they contributed nothing toward is damaging to a silent third 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.  Simple 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.

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 "Hypothetical Method".

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 each point). 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 be captured in one number or fraction; a proper military coverture fraction is the result of two mathematical 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.

Unlike time-only-based 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, advanced school 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.

area diagram
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 dividing both the clear and dotted sections with the ex-spouse.  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 promotions.

During the 2001 Congressional study, two prominent national attorneys argued for dividing promotion enhancements after divorce.  Perhaps their motivations match one QDRO generating business 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 factory.

In fact, anybody who can figure out the area of a room floor can divide military retirement assets equitably.  Although the Dual Coverture method can handle most situations, the precise details for every life situation are discussed in another web page describing the Area Method.

The 2001 Department of Defense report to Congress (which considered input from dozens of National organizations, bar associations, and others) says:

"[Giving 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.” (page 4)

“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 guide 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 marriage. 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.

Mork's methods are better than Hypothetical for several reasons: 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 as 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 more time-value adjustment when it's trivial to treat spouses equally?

The Report's recommendations are also manifest in statutes (e.g. Oklahoma SB1951 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 marriage  This is a strange 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 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.

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:
  1. Chronological sequence of dates are the presumed determination of what is "during a marriage".  Sans compelling reasons why not, dates should be used.  If something accrues chronologically after marriage, it wasn't during a marriage.
  2. Promotion is obviously required for retirement promotion enhancement, but is not sufficient to cause it.  Making a promotion manifest into an increased retirement 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 enhancement (vice the promotion, per se).
  3. Promotions are special, unique, and competitive.  Only a small portion of individuals can accomplish this by specific, difficult, pro-active effort. Promotion enhancements are not the same as passive investment income increases due to passage of time.  "Earning interest" is NOT the same as "Earning retirement". Bluring this issue has been repeatedly done by Mark Sullivan and propagated into the legal system because of his association with the American Bar Association and the  Reserve Officer Association.
  4. 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.
  5. Prior 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 spouse that made the promotion possible. Honestly, the stress of a divorce can be enough to handicap and military member and forestall or prevent a promotion!
  6. Promotion 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 after marriage (first paragraph page 59).  The arguments come up short because they are technically faulty and rely on confusing an unfamilar audience.  Here are the three bad arguments and responses:
  1. "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 marital assets.  See below or another another web page 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 the same 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 - A person will never attain age 50 but for the first 18 years, yet a parent can't obligate a child's later earnings for this reason.

    Example 2 - What if a military pilot later got a civilian pilot job based on pilot training and experience received during married military years.  This does not allow the ex-spouse to divide a retirement from the civilian pilot job.

    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 member.

    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 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".

  2. "Increasing the denominator of the coverture fraction reduces the share 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).

  3. "Spouse must wait until member retires to receive payments and should be compensated."  This  argument obliquely implies that only the 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 methods 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 reason choose Hypothetical Method over Dual Coverture Value unless one is intentionally choosing inequity.

Undefined Words "Based On" Cause Confusion

In 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 divided.

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.


Clarifying Logic

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:
  1. Determine if something is a marital asset. USFSPA allows, but does 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.
  2. Determine asset values as of some date.  This is typically 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.
  3. Decide 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 multiple spouses.
USFSPA allows a military retirement to be divided as a marital asset, and almost always divorce decrees will specify to divide only "...the portion 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 the marriage is divisible.

It is worth nothing that the Area Method allows proper handling of military duty and promotion before and after the marriage, along with any other combination of multiple marriages, divorces, and military duty.  No other method, including the DFAS Hypothetical Method, is capable of this.

Here are some Q&A that might help.

Q1: Aren't promotion enhancement based on prior contribution by spouse? 

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."  Just 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 by anybody 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:
  1. 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.
  2. If a promotion happens after divorce, it's nigh impossible to claim the spouse continued to contribute during the required 3 additional years vesting after promotion.
Q3: The military member is building value of points earned during the marriage, so shouldn't enhanced value based on those points be divided?

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, should not be encumbered if entering a post-divorce promotion contract with the government to be worth additional or alternate value that does not comingle, nor increase, nor decrease the previously stripped value. 

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 public forums, 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 members.  If 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 Committee of 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 choices:
  1. 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 retirement enhancements.
  2. 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 cases where contributions made after divorce are never considered marital property.
  3. 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.
There is more. In fact, two documents can be downloaded under the ABA web page section titled "Military Pension Division Reform".  Both documents present arguments for dividing promotion enhancements earned after a marriage. The other document is a related 1999 Official ABA position 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 material.

Sullivan's document has foundational errors that may have started as simple confusion. In contrast, Willick's work is openly caustic toward military advocates, using phrases like "proposals floated by extremists" to describe the position 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 interest.'" 

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 equitable methods 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 member.

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 least 13%."

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 priori, in 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.

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 members can 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 recommendations in their official DFAS Recommendation to Attorneys document in the form of the Hypothetical 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 years after the 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 following 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 are after the detailed DoD report to Congress was completed. Sullivan's credentials are top-notch. However, 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 the epitome of misunderstanding passively accrued vs. actively earned benefits, causing tremendous detriment to military members.


Conclusion

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.

References

  1. DFAS "Guidance on Dividing Military Retired Pay", March 2014, 25 pdf pages with bad formatting, 121 KB pdf. (DFAS.mil, increa copy).
    1. Older copy April 2012, 20 pgs, 119 KB pdf. (DFAS.mil, increa copy).
    2. Older copy "Attorney Instructions - Dividing Military Retired Pay", April 2001, 19 pgs, 74kb pdf. (DFAS.mil, increa copy).
  2. DoD Report to Committee on Armed Services of the US Senate and House of Representatives, 2001. (Defense.gov, increa copy) (84 pgs, 279kb pdf)
  3. Attorney Instructions - Division of Reserve and Active Duty Military Retirement, Mork, 2012. (increa copy)
  4. Marshall Willick position paper to DoD Report committee. 1999.
  5. Marshall Willick position paper December 2011.
  6. Mark Sullivan editorial regarding the DoD Report to Congress. 2001.
  7. Division of Military Retirement Promotion Enhancements Earned After Divorce, Mork, 2012 - a rebuttal to Mark Sullivan's editorial (increa copy)
  8. Appellate Court of Illinois Marriage of Wisniewski, 675 N.E.2d 1362, 1369 (Ill. Ct. App. 1997).
  9. Oklahoma state SB1951, signed into law 5 May 2012 (6 pages).
  10. "Simple Division Orders after New Jersey's 2011 Decisions" - a reply to Mr. William Troyan web posting.
  11. Numerical comparison of single coverture vs. DCV.

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