Division of Military Retirement Pay - Promotion Enhancements

© 2014 Brian Mork, Ph.D. [Rev 1.8]

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Introduction

This page deals with the issue of dividing military retired pay in divorce cases when the military person is promoted after the divorce.  For more general issues, please see a different page about Dual Coverture 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.

Increasingly, objective parties are recognizing that courts need clear guidance to get this right.  Four examples below:
  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 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 known and paid before the divorce -- let alone if they didn't even exist until after the divorce.  This case is strong enough to question whether any military divorce should be divide when retirement payment is contingent on any duty performance after the divorce.  See the Skelly v. Skelly opinion on the webpage discussing statutes and case law.

  3. On 5 May 2012, a new Oklahoma law implemented the 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."

  4. 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."

No report or law needs to point out 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!  How can one 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 insulting and damaging to a silent third party that has no voice in the legal system.

The rest of this web page establishes that promotion enhancements after divorce are not to be divided with the ex-spouse.  This page supports that should be done, not how to do it.  Simple methods to implement this idea are introduced on the Dual Coverture Value page.

Promotion Enhancements Require a Dual Coverture

A military retirement is different than civilian retirements because it is looked up in a 2-dimensional pay table, using 1) time of service, and 2) rank. Reference 10 USC 12739, and 10 USC 1406 or 1407. The two factors of time and rank are independent, and cannot be captured in one fraction; a proper military coverture fraction is the result of twomathematical fractions multiplied together: the time or Duty Fraction, and the Rank Fraction. If only one ratio is used, the non-military spouse would benefit from all military promotions outside the marriage, and this is contrary to equity. Unlike time-based promotions where the two issues can be 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.

A 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 Method" formula to divide the method.  Unfortunately, the Hypothetical Method requires onerous mathematics. After years of researching legal cases, Mork published the Dual Coverture Value method in 2012.

The Dual Coverture methods are better for several reasons: simpler, more lucid, and broader application. If you stipulate that COLA annual increases are the same as military pay increases, both Hypothetical and Dual Coverture Value methods give the same answer.  If you are not willing to stipulate that both prior spouses benefit from the same time-value of money adjustments, that begs issues of intentional inequity -- why should one spouse intentionally get more time-value adjustment when it's trivial to do them 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 the Dual Coverture methods.

Promotion Enhancement Confusion

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 establish 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.
  2. Promotion is obviously required for retirement promotion enhancement, but is not sufficient to cause it.  Making a promotion manifest into an increased retirement 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).
  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 increases due to passage of time.  "Earning interest" is NOT the same as "Earning retirement". This mistake has repeatedly been made 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 by the military is prima facia evidence that what a prior spouse contributed was not sufficient for promotion. Often times, a military member being refused promotion the first time can demonstrate that it's only the solo effort or shared effort of a later spouse that made the promotion possible.
  6. Promotion enhancements after divorce taken by a first spouse will deprive a second spouse of what is rightfully their contribution.
Regardless of these qualities of promotion, people continue to argue against the Dual Coverture and Hypothetical methods.  The DoD congressional report tried to show generosity toward a position they did not agree with.  They summarizes the best arguments to divide promotions after marriage (first paragraph page 59) and the arguments come up short.  The arguments 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."  This argument is faulty because all things later in life are "based on" prior life, and that is an insufficient proof that they are marital assets.  The phrase "based on" or "but for" has no legal definition. Earning a new benefit "based on" history is NOT the same thing as shared effort creating that benefit. This logic would allow tapping any accomplishment after divorce by either spouse and strip a divorce of all meaning.

    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 during married military years.  This does not allow the ex-spouse to divide a retirement from American Airlines.

    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. 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 because it was based on 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 - Divorce decrees use phrases like "earned during the marriage" or "accrued during the marriage".   Words have important legal maning, and it does not matter how the division is calculated or what later duty is "based on". Division orders (which are legally required to follow the divorce decree) must not introduce vague phrase or fabricate new dependency to mistreat military members.

  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.  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 only 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.  And nothing would be received by either party but for the after-marriage continuation of additional duty by the military member. This argument attempts to establish a right to retirement for the ex-spouse when the military member doesn't even have that right yet!  At least one Appellate Court wrote that coercing a military member to continue doing duty is wrong, that "dividing [potentially] zero retirement is not in error."  All methods discussed in these web pages DO compensate both parties, so this argument is a specious distractor.  Only the Dual Coverture method compensates 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.  See the "blue arrow" diagram in the document "Attorney Instructions - Division of Reserve and Active Duty Military Retirement Pay", available in the references below.  There is no reason choose Hypothetical Method over Dual Coverture unless one is intentionally choosing inequity.

In practice, the phrase "based on" and "but for" are legally undefined phrases, designed by the user to confuse and obscure.  "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.

An entire separate web page is dedicated to addressing division of promotion enhancements and rebutting Mr. Sullivan's misunderstandings.


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. Almost all courts do. However, 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.  USFSPA forbids determination that anything above 50% is a marital asset. Determining marital asset value is the whole point of the coverture fraction. As explained above, an enhanced retirement value does not manifest 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 fraction. Sometimes there are legitimate reasons to deviate from this, but it's usually an uphill battle to argue against 50:50.
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 Dual Coverture Value 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.

Dissent

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 attorney Mark Sullivan, 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 and the Oklahoma legislature, and the Department of Defense, believing that retirement contributions made years after a divorce should still be divided as marital assets.  His 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.  Interestingly, 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.
  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 divorce cases where contributions made later in life 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.
Mr. Sullivan's critique of the DoD report is available from the Military Committeeof the American Bar Association (ABA) Family Law section. After reading Mr. Sullivan's effort to treat military members inequitably, I cannot understand why any military member would retain Mr. Sullivan to represent their interests.

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.'" 

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 don't want to engage in a debate about whether military retirement should be divided as an asset.  Instead, I am trying to shed light and equity on the technical methods to do so. Possibly blinded with emotion, 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.  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 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 DCV division 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 Dual Coverture 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.

One last caution: although DFAS cites the Hypothetical Method for Active Duty military members who receive a promotion after divorce, DFAS incorrectly fails to cite the same method again as applied to Reserve military members, leading some attorneys to incorrectly assume a Reserve officer can't be promoted after the divorce! Obviously, a Reserve member can be promoted after divorce and DFAS fails to provide a method.

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

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The shell of this document was created using AbiWord under the Linux Gnome desktop. Content was edited using Kompozer. © 2013 Brian Mork, Ph.D.