Caveat: Although the military retirement division language may be included in the body of the decree of divorce, the better practice is to treat military retirement just as any other retirement asset that requires a qualified domestic relations order (QDRO) would be treated. Because a division order of military retirement does not fall under the Employee Retirement Income Security Act, it is not a “qualified” order but simply a military retirement pension division order (MRPDO). The Defense Finance and Accounting Service (DFAS) does not require that the order regarding division of the retirement benefits be contained wholly in the decree, and the better practice is to have a separate order (“Military Retired Pay Division Order”) that specifically treats the division of the military retired pay and related military benefits. DFAS may require, however, that the person submitting the retirement division order for approval for direct payment (usually the nonmember spouse, since an application signed by that spouse must accompany the order) to the nonmember spouse submit the divorce decree, as well as the MRPDO that divides the military retirement if it is in a separate order, making sure that the terms of the decree and MRPDO are consistent. Some courts have taken the approach that the final decree is the awarding order and the MRPDO is the implementing order.
NOTICE: THIS DOCUMENT
CONTAINS SENSITIVE DATA
|
See § 6 of the Introduction in volume 1 of this manual concerning protection of sensitive data in filed documents. |
[Caption. See § 3 of the Introduction in volume 1 of this manual.]
Military Retirement Pension Division Order
The Court, having entered a decree of divorce [coincident with the signing of this military retirement pension division order/in this case on [date]], finding that the entry of a Military Retirement Pension Division Order (MRPDO) is necessary to effectuate the terms of that decree of divorce, and further finding that the entry of an MRPDO is appropriate, makes the following specific findings and conclusions of law and enters them as an order in this proceeding.
Findings
The Court finds, in accordance with the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408, as follows:
1.This Court has jurisdiction over [full name of servicemember] (“Servicemember”). [Include one or both of the following: The residence of Servicemember is in [city, county], Texas, other than because of military assignment during the proceeding./Servicemember has consented to the jurisdiction of the Court.]
2.Servicemember and [full name of former spouse] (“Former Spouse”) were originally married on [date], and that marriage lasted for [number] years and [number] months or more, during which time Servicemember served [number] years and [number] months or more of creditable service toward retirement.
|
The time in months and years that the parties were married during which the servicemember was earning retirement credit should not be stated to be “ten years or more” or “twenty years or more” but should be the actual years and months of overlapping marital service. The ten-year and twenty-year periods are relevant in determining the availability of direct payment from DFAS to the former spouse and the former spouse’s entitlement to certain medical and other benefits, respectively. See the practice notes at sections 25.75 and 25.80. |
3.Servicemember’s Social Security number is ***-**-[last four numbers], [his/her] address is [address], and [his/her] birth date is [date].
4.Former Spouse’s Social Security number is ***-**-[last four numbers], [her/his] address is [address], and [her/his] birth date is [date].
5.The rights of Servicemember under the Servicemembers Civil Relief Act (50 U.S.C. §§ 3901–3920) have been observed and honored.
6.Servicemember [is/is not] retired from the United States [branch of service] at the time of this order.
7.The award of disposable retired pay made to Former Spouse in this order is made in compliance with the Uniformed Services Former Spouses’ Protection Act.
|
Direct payment is available from DFAS only if the parties were married for at least ten years during which the servicemember was also on active duty for at least ten years or in active reserve status and earned at least ten “good years” for reserve retirement credit. If this is not the case, the order must be written to provide for a constructive trust between the servicemember and the former spouse, and taxes must be dealt with because the servicemember will be taxed. |
8.It is intended by this Court and the parties that the Defense Finance and Accounting Service (DFAS) make the payments due to Former Spouse of [her/his] interest in the disposable retired pay awarded in this order directly to Former Spouse.
Terms and Definitions
With respect to the provisions of this MRPDO, the Court has used and applied the following terms and definitions:
1.“Retired pay” means monetary pay to which Servicemember is, or may hereafter be, entitled to receive on completion of the requisite number of years of creditable service to be entitled to nondisability retired pay as a result of service in the United States Armed Forces (active duty, reserve component, or national guard), whether called retired pay, retainer pay, or retirement pay.
2.“Disposable retired pay” has the meaning provided in the Uniformed Services Former Spouses’ Protection Act (10 U.S.C. § 1408 et seq.) in effect on the date of the parties’ divorce.
3.“USFSPA” means the Uniformed Services Former Spouses’ Protection Act (10 U.S.C. § 1408 et seq.) in effect on the date of the parties’ divorce.
4. “Defense Finance and Accounting Service” (DFAS) means, refers to, and includes the Secretary of the Department of Defense, the Director of the DFAS, the designated agent of either of these, and other appropriate subdivisions of the United States Government.
5. “COLA” means the cost-of-living adjustment increases that are made annually to a military retiree’s retired pay pursuant to 10 U.S.C. § 1401a.
Award to Former Spouse
|
Select one of the following. |
|
Use the following when the former spouse is to receive only a fixed-dollar award. The former spouse will not receive any COLAs thereafter authorized by Congress if a fixed dollar amount is awarded. |
IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the sum of [number] dollars ($[amount]) of Servicemember’s monthly disposable retired pay.
|
When representing the servicemember, use the following for an active duty servicemember who entered the service before September 8, 1980. |
IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the amount of retired pay then equal to [percentage awarded former spouse (usually 50 percent)] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of months of servicemember’s service during marriage divided by number of months servicemember has been on active duty on date of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by number of full months of servicemember’s creditable service toward retirement on divorce divided by 12] percent multiplied by [servicemember’s base pay on date of divorce] divided by the amount of the monthly gross retired pay that Servicemember is entitled to receive at retirement multiplied by the amount of Servicemember’s monthly disposable retired pay at retirement.
|
When representing a servicemember who has not been in the military for twenty years, the attorney may wish to calculate the percentage of the servicemember’s entitlement to retired pay taking into account the provisions of the Temporary Early Retirement Authority (TERA), 10 U.S.C. § 1293, which will necessarily have the effect of reducing the former spouse’s share of the anticipated retired pay on divorce. See the following materials for discussions of the application of TERA to the calculation of military retired pay in such circumstances: 1.James N. Higdon, Military Retirement and Divorce, chapter 63.2, State Bar of Texas 35th Advanced Family Law Course, August 2009. 2.James N. Higdon, Military Retirement Benefits–Things the Practitioner Should Be Aware Of, State Bar of Texas 33rd Marriage Dissolution Institute, May 2010. 3.James N. Higdon, Drafting Issues and Pitfalls in a Military Divorce, chapter 20, pages 2–3, State Bar of Texas Advanced Family Law Drafting Course, December 2013. |
|
Or |
|
When representing the former spouse, use the following for an active duty servicemember who entered the service before September 8, 1980. |
IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the amount of retired pay then equal to [percentage awarded former spouse (usually 50 percent)] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of months of servicemember’s service during marriage divided by number of months servicemember has been on active duty on date of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by number of full months of servicemember’s creditable service toward retirement on divorce divided by 12] percent multiplied by the base pay of a servicemember with Servicemember’s pay grade and longevity on the date of divorce determined on the date of Servicemember’s retirement divided by Servicemember’s monthly gross retired pay at retirement multiplied by Servicemember’s monthly disposable retired pay at retirement.
|
When representing the former spouse, determine the former spouse’s share of the retired pay on divorce limited, however, to the pay grade and longevity of the servicemember on the date of divorce. See the following materials for discussions on the calculation of military retired pay: 1.James N. Higdon, Military Retirement and Divorce, chapter 63.2, State Bar of Texas 35th Advanced Family Law Course, August 2009. 2.James N. Higdon, Military Retirement Benefits–Things the Practitioner Should Be Aware Of, State Bar of Texas 33rd Marriage Dissolution Institute, May 2010. 3.James N. Higdon, Drafting Issues and Pitfalls in a Military Divorce, chapter 20, pages 2–3, State Bar of Texas Advanced Family Law Drafting Course, December 2013. |
|
Or |
|
When representing the servicemember, use the following for an active duty servicemember who entered the service on or after September 8, 1980. If the servicemember is participating in the legacy retirement system, use 0.025 as the longevity factor in the formula; if the servicemember is participating in the Blended Retirement System (BRS), use 0.020 as the longevity factor. For a former spouse to receive a portion of lump sum payments made to a member pursuant to the member’s election under the BRS, DFAS must have received and approved the application for former spouse payments prior to the member’s receipt of the lump-sum amount. Be aware also of continuation pay bonuses under BRS. |
IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the amount of disposable retired pay calculated as follows: [percentage awarded former spouse] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of months of servicemember’s service during marriage divided by number of months servicemember has been on active duty on date of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, [0.025/0.020] multiplied by number of full months of servicemember’s creditable service toward retirement on divorce divided by 12] percent multiplied by [servicemember’s high-36 month base pay on date of divorce] divided by Servicemember’s monthly gross retired pay at retirement multiplied by Servicemember’s monthly disposable retired pay at retirement [include if servicemember is participating in BRS: and any lump-sum payment of Servicemember’s disposable retired pay].
|
Or |
|
When representing the former spouse, use the following for an active duty servicemember who entered the service on or after September 8, 1980. If the servicemember is participating in the legacy retirement system, use 0.025 as the longevity factor in the formula; if the servicemember is participating in the BRS, use 0.020 as the longevity factor. Because the servicemember’s high-36 month base pay at the time of retirement for his or her pay grade and longevity on the date of divorce cannot be determined on the date of divorce but must wait for his or her retirement, it will probably be necessary to “clarify” the MRPDO at or after the date the servicemember retires because DFAS may not accept for processing an order that contains the “high-36 month base pay at the time of retirement” hypothetical. Therefore, both parties should be notified that a clarification suit will probably have to be filed and a clarifying order entered at that time. |
IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the amount of disposable retired pay calculated as follows: [percentage awarded former spouse] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of months of servicemember’s service during marriage divided by number of months servicemember has been on active duty on date of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, [0.025/0.020] multiplied by number of full months of servicemember’s creditable service toward retirement on divorce divided by 12] percent multiplied by the high-36 month base pay of a servicemember with Servicemember’s pay grade and longevity on the date of divorce determined on the date of Servicemember’s retirement divided by Servicemember’s monthly gross retired pay at retirement multiplied by Servicemember’s monthly disposable retired pay at retirement [include if servicemember is participating in BRS: and any lump-sum payment of Servicemember’s disposable retired pay].
|
Or |
|
Use the following for an active duty servicemember who is retired at the time of divorce whether representing the servicemember or the former spouse. |
IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember [percentage awarded former spouse (usually 50 percent)] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement, that is, number of months of servicemember’s service during marriage divided by total number of months of servicemember’s service at retirement] percent multiplied by Servicemember’s monthly disposable retired pay.
|
Or |
|
When representing the servicemember, use the following for an active reservist servicemember who entered the service before September 8, 1980. |
IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the amount of retired pay then equal to [percentage awarded former spouse (usually 50 percent)] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of retirement points earned during marriage divided by total number of retirement points earned by servicemember on date of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by servicemember’s total retirement points on divorce divided by 360] percent multiplied by [servicemember’s base pay on date of divorce] divided by Servicemember’s monthly gross retired pay at retirement multiplied by Servicemember’s monthly disposable retired pay at retirement.
|
Or |
|
When representing the former spouse, use the following for an active reservist servicemember who entered the service before September 8, 1980. |
IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the amount of retired pay then equal to [percentage awarded former spouse (usually 50 percent)] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of retirement points earned during marriage divided by total number of retirement points earned by servicemember on date of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, 0.025 multiplied by servicemember’s total retirement points on divorce divided by 360] percent multiplied by the base pay of a servicemember with Servicemember’s pay grade and longevity on the date of divorce determined on the date of Servicemember’s retirement divided by Servicemember’s monthly gross retired pay at retirement multiplied by Servicemember’s monthly disposable retired pay at retirement.
|
Or |
|
When representing the servicemember, use the following for an active reservist servicemember who entered the service on or after September 8, 1980. If the servicemember is participating in the legacy retirement system, use 0.025 as the longevity factor in the formula; if the servicemember is participating in the BRS, use 0.020 as the longevity factor. |
IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the amount of disposable retired pay calculated as follows: [percentage awarded former spouse] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of retirement points earned during marriage divided by total number of retirement points earned by servicemember on date of divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, [0.025/0.020] multiplied by servicemember’s total retirement points on divorce divided by 360] percent multiplied by [servicemember’s high-36 month base pay on the date of divorce] divided by Servicemember’s monthly gross retired pay at retirement multiplied by Servicemember’s monthly disposable retired pay at retirement [include if servicemember is participating in BRS: and any lump-sum payment of Servicemember’s disposable retired pay].
|
Or |
|
When representing the former spouse, use the following for an active reservist servicemember who entered the service on or after September 8, 1980. If the servicemember is participating in the legacy retirement system, use 0.025 as the longevity factor in the formula; if the servicemember is participating in the BRS, use 0.020 as the longevity factor. Because the servicemember’s high-36 month base pay at the time of retirement for his or her pay grade and longevity on the date of divorce cannot be determined on the date of divorce but must wait for his or her retirement, it will probably be necessary to “clarify” the MRPDO at or after the date the servicemember retires, because DFAS may not accept for processing an order that contains the “high-36 month base pay at the time of retirement” hypothetical. Therefore, both parties should be notified that a clarification suit will probably have to be filed and a clarifying order entered at that time. |
IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemember’s retirement from the United States [branch of service], the amount of disposable retired pay calculated as follows: [percentage awarded former spouse] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of retirement points earned during marriage divided by total number of retirement points earned by servicemember at divorce] percent multiplied by [percentage of servicemember’s gross retired pay entitlement if servicemember were allowed to retire on date of divorce, that is, [0.025/0.020] multiplied by servicemember’s total retirement points on divorce divided by 360] percent multiplied by the high-36 month base pay of a servicemember with Servicemember’s pay grade and longevity on the date of divorce determined on the date of Servicemember’s retirement divided by Servicemember’s monthly gross retired pay at retirement multiplied by Servicemember’s monthly disposable retired pay at retirement [include if servicemember is participating in BRS: and any lump-sum payment of Servicemember’s disposable retired pay].
|
Or |
|
Use the following for a reservist servicemember who is retired and receiving retired pay at the time of divorce whether representing the servicemember or the former spouse. |
IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember [percentage awarded former spouse (usually 50 percent)] percent multiplied by [number of servicemember’s retirement points earned during marriage divided by total number of servicemember’s retirement points at retirement] percent multiplied by Servicemember’s monthly disposable retired pay.
|
Or |
|
Important: The attorney representing a servicemember who is retired but not accruing points or receiving retired pay will want to have the “retired pay” determined on the date of divorce rather than using a percentage of retired pay at retirement. In the latter formulation, the former spouse would receive the benefit of the cost-of-living increases that accrue from the date of the “retirement” or divorce to the date when the servicemember begins receiving retired pay, usually at age sixty. (In 2009, Congress passed a law to allow reservists and guardsmen who were recalled to and performed active duty on and after January 30, 2008, to be entitled to receive retired pay earlier than age sixty, at their election.) |
|
Use the following for a reservist servicemember who is retired and not accruing retirement points but not receiving retired pay at the time of divorce, that is, one who is no longer a drilling reservist but has not yet become entitled to receive retired pay. If the servicemember is participating in the legacy retirement system, use 0.025 as the longevity factor in the formula; if the servicemember is participating in the BRS, use 0.020 as the longevity factor. |
IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember [percentage awarded former spouse (usually 50 percent)] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of servicemember’s retirement points earned during marriage divided by total number of servicemember’s retirement points at divorce] percent multiplied by [[0.025/0.020] multiplied by servicemember’s total retirement points earned on date of divorce divided by 360] percent multiplied by [servicemember’s high-36 month base pay at divorce] divided by Servicemember’s gross retired pay at retirement multiplied by Servicemember’s disposable retired pay at retirement [include if servicemember is participating in BRS: and any lump-sum payment of Servicemember’s disposable retired pay].
|
Or |
|
Use the following when representing the former spouse of a reservist servicemember who is retired and not accruing retirement points but not receiving retired pay at the time of divorce. |
IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember [percentage awarded former spouse (usually 50 percent)] percent multiplied by [percentage of community interest in servicemember’s military retired pay entitlement on date of divorce, that is, number of servicemember’s retirement points earned during marriage divided by total number of servicemember’s retirement points at divorce] percent multiplied by Servicemember’s disposable retired pay at retirement.
|
Select one of the following COLA provisions. |
|
Use the following if the former spouse is to receive COLAs. |
IT IS FURTHER ORDERED that DFAS, to the extent allowed by law, pay Former Spouse each month the calculated percentage of Servicemember’s disposable retired pay at retirement, together with all COLAs applicable thereto, payable IF, AS and WHEN received by Servicemember.
|
Use the following if the former spouse is not to be awarded and receive COLAs. |
IT IS FURTHER ORDERED that DFAS, to the extent allowed by law, pay Former Spouse each month the fixed dollar award out of Servicemember’s disposable retired pay at retirement, payable IF, AS and WHEN received by Servicemember, but Former Spouse shall not be entitled to receive any COLAs related thereto.
|
Continue with the following when representing the former spouse if the court will include this language, since it protects the interest being awarded to the former spouse from the effects of VA waiver and/or the servicemember’s application for combat-related special compensation (CRSC) (10 U.S.C. § 1413a). But see Howell v. Howell, 137 U.S. 1400 (2017) for the limitations on indemnification to a former spouse. |
IT IS FURTHER ORDERED AND DECREED that the award herein shall in no event be less than [number] dollars ($[amount]) per month, together with all COLAs hereafter applicable thereto, of Servicemember’s retired pay. The Court recognizes, in making this award, that DFAS, pursuant to the USFSPA, is authorized to pay Former Spouse only the herein-awarded percentage of Servicemember’s “disposable retired pay,” and this Order, as to DFAS, should be so construed.
|
Include the following if applicable. If the former spouse is to be awarded the right to receive the servicemember’s Survivor Benefit Plan (SBP) annuity benefits, a decision must be made about who is to pay for it if the parties wish to allocate the cost in a manner different from the federal requirements. DFAS subtracts the SBP premium from the gross retired pay in calculating disposable retired pay before division. If the former spouse is to pay the full cost of the SBP premiums, the simplest way to accomplish this result is to adjust the former spouse’s percentage share of the disposable retired pay. The attorney who is not adequately informed on this issue should consult with someone who fully understands this aspect of retired pay calculation before reaching an agreement on this adjustment. If the former spouse’s share is to be adjusted to provide for the former spouse’s paying all of the cost of the monthly SBP premium, something like the following should be inserted at this point in the order unless the servicemember is already retired. SBP benefits are also affected by a servicemember’s election to take lump-sum payments under the Blended Retirement System. |
The Court finds that the foregoing calculated percentage of disposable military retired pay awarded Former Spouse has been reduced to provide for Former Spouse’s payment of all of the monthly Survivor Benefit Plan premium cost.
|
Continue with the following. |
IT IS FURTHER ORDERED that the rest, residue, and remainder of the military retired pay of Servicemember is the sole and separate property of Servicemember.
Amounts in Excess of 50 Percent
IT IS ORDERED that if the dollar amount or award (or a larger sum as increases take effect) exceeds 50 percent of the disposable retired pay, DFAS shall pay to Former Spouse the maximum amount allowable under the USFSPA and Servicemember shall be responsible for paying the balance of the award each month to Former Spouse, and it is accordingly ORDERED.
If DFAS is not allowed to pay Former Spouse the full amount of Former Spouse’s entitlement pursuant to this order for any reason, Servicemember is hereby ORDERED, within seven days of being notified by Former Spouse that Former Spouse is not receiving the full amount of Former Spouse’s interest in the retired pay, to execute and deliver to DFAS all forms or documents that may then be necessary to effect an allotment payable to Former Spouse in the amount of the difference between the amount being paid directly to Former Spouse by DFAS and the full amount of Former Spouse’s interest in the retired pay. Servicemember is FURTHER ORDERED to keep and maintain in full force and effect any allotment required by this provision, payable to Former Spouse at [address, city, state, zip code], or such other address as Former Spouse may hereafter specify in writing, until such time as Former Spouse begins receiving Former Spouse’s full separate-property share of Servicemember’s disposable retired pay as awarded herein directly from DFAS. That allotment may be canceled by Servicemember if and when Former Spouse begins receiving, and for as long as Former Spouse is receiving, Former Spouse’s full separate-property share of Servicemember’s disposable retired pay directly from DFAS, but only in that event or to avoid double payment of sums.
|
Include the following paragraph if applicable. |
Since Former Spouse has been awarded the right to receive that share attributable to the interest awarded to Former Spouse herein of any and all COLAs or other increases in the monthly disposable retired pay hereinafter paid and if Former Spouse is not receiving from DFAS [her/his] full share of the retired pay herein awarded to Former Spouse, if and when COLAs are made to the retired pay received by Servicemember, Servicemember is hereby ORDERED to execute and deliver to DFAS all forms or documents that may then be necessary to effect an increase in the allotment to Former Spouse in the amount equal to the dollars-and-cents equivalent of that COLA attributable to Former Spouse’s share of that disposable retired pay. Servicemember is hereby ORDERED to increase the allotment then in effect or, if applicable, initiate an allotment pursuant to the foregoing paragraph, within seven working days of the date Servicemember is notified by DFAS of the effective date of each COLA to the monthly retired pay payment.
Constructive Trust
IT IS FURTHER ORDERED that Servicemember be and is hereby designated a constructive trustee for the benefit of Former Spouse for the purpose of receiving the retired pay awarded herein to Former Spouse as Former Spouse’s sole and separate property, and Servicemember be and is hereby ORDERED, on receipt thereof, to deliver by first-class mail to Former Spouse at [her/his] last known address by negotiable instrument that portion of each monthly retired pay payments awarded to Former Spouse herein not paid directly (or by allotment) by DFAS within three days of the receipt of any such payments by Servicemember. All payments made directly to Former Spouse by DFAS shall be a credit against this obligation.
For purposes of this order, Servicemember is specifically directed, on penalty of contempt, to pay Former Spouse’s interest in the disposable retired pay as ordered in this order, and IT IS SO ORDERED. Servicemember is specifically directed that [he/she] is not relieved of that obligation except to the extent that [he/she] is specifically notified that 100 percent of Former Spouse’s interest in the retirement benefit has been directly paid by DFAS, and IT IS SO ORDERED.
IT IS FURTHER ORDERED that any election of benefits that may hereafter be made by Servicemember shall not reduce the amount equal to the percentage of the retired pay or the amount of the retired pay the Court has herein awarded to Former Spouse, except as provided by federal law and prohibited from being changed by a state court order. In this regard, IT IS FURTHER ORDERED that Servicemember shall not merge [his/her] military retired pay with any other pension and shall not pursue any course of action that would defeat, reduce, or limit Former Spouse’s right to receive Former Spouse’s full separate-property share of Servicemember’s retired pay as awarded in this order, unless otherwise ordered herein.
Death
IT IS ORDERED that the payment of the retired pay awarded in this order to Former Spouse shall continue until the death of Servicemember or Former Spouse.
Retiree Account Statements and Privacy Waiver
IT IS FURTHER ORDERED that Servicemember shall deliver by first class mail to Former Spouse at [former spouse’s mailing address], or such other address as Former Spouse may hereafter specify in writing, a true and correct legible copy of each Retiree Account Statement received by Servicemember from DFAS within five days of its receipt.
IT IS ORDERED that Servicemember hereby waives any privacy or other rights as may be required for Former Spouse to obtain information relating to Servicemember’s date of retirement, last unit assignment, full pay grade, past or present monthly annuity payments, or other information that may be required to enforce this award or to revise this order to make it enforceable.
|
Include the following if applicable. |
Retirement
IT IS ORDERED that Servicemember shall notify Former Spouse of [his/her] application for retired pay, and provide Former Spouse with a true copy of [his/her] Application for Retired Pay Benefits, on the date [he/she] applies for those benefits. This notification shall be mailed by Servicemember to Former Spouse at [her/his] last known address. Servicemember is FURTHER ORDERED to provide to Former Spouse a true and correct copy of the first Retiree Account Statement received by [him/her] within five days of its receipt.
|
Continue with the following. |
Application for Direct Payment of Retired Pay
Former Spouse is hereby directed to apply for Former Spouse’s entitlement to a portion of Servicemember’s disposable military retired pay by contacting the DFAS Legal Department, completing the Application for Former Spouse Payments from Retired Pay (DD Form 2293), and delivering it along with a certified copy of this MRPDO (certified within ninety days of its delivery to DFAS) and a photocopy of the parties’ marriage certificate to: DFAS-HGA-CL, Assistant General Counsel for Garnishment Operations, P.O. Box 998002, Cleveland, Ohio 44199-8002 by certified mail, return receipt requested.
|
DD Form 2293 can be accessed and downloaded at www .dtic.mil/whs/directives/infomgt/forms/eforms/dd2293.pdf. |
Taxes
IT IS FURTHER ORDERED that Former Spouse shall include in [her/his] gross income for [her/his] taxable years of receipt all retired pay received by Former Spouse pursuant to this order, and, to the extent benefits are payable to Former Spouse by DFAS, Servicemember shall not include such benefits in Servicemember’s gross income for such taxable years.
Survivor Benefit Plan
|
Important: If being awarded, it is mandatory that the order state clearly that Survivor Benefit Plan (SBP) benefit coverage is being awarded to the former spouse, to the parties’ children, or to both, as applicable. Payment of the SBP monthly premiums is deducted from the gross retired pay by DFAS before DFAS applies the former spouse percentage, that is, divides the retired pay between the former spouse and the servicemember. If the attorney does not want the spouses to share in the cost and wants the former spouse to pay all of the cost of the SBP annuity, the premium should be deducted from the former spouse’s share by reducing the percentage, or the former spouse can pay the servicemember each month (or other frequency period) for the coverage. Ensure that the former spouse pays only his or her share of the premium. For instance, if the former spouse is not receiving 50 percent of total retired pay, the former spouse will not be paying 50 percent of the premium, but will be paying only the percentage of the disposable pay that has been awarded to the former spouse. If the former spouse remarries before age fifty-five, his or her entitlement to be a SBP beneficiary is suspended for the duration of that marriage, but the former spouse can, on the termination of that marriage, petition DFAS for reinstatement of the suspended benefit. During the period of the suspended benefit, DFAS should, if timely notified, also suspend the payment of the monthly premiums. A servicemember may designate only one class of beneficiary for the survivor benefits. Thus, if a former spouse beneficiary has been designated, a new spouse cannot be designated as a “spouse beneficiary” unless the former spouse is no longer an eligible beneficiary. Also, the servicemember is not permitted to award a fractional interest to the former spouse and leave a portion for a future spouse. DFAS will pay the survivor benefit to only the designated beneficiary(ies), i.e., spouse, spouse and children, former spouse or former spouse and children, on the death of the servicemember. Generally, the designation, once made, is irrevocable. |
|
Select one of the following. |
|
Use the following paragraph if the servicemember is retired, the spouse is currently designated as a spouse beneficiary of servicemember’s SBP, and the spouse is to be redesignated as a former spouse beneficiary. |
The Court further finds that Former Spouse is presently named a spouse beneficiary of Servicemember’s Armed Forces Survivor Benefit Plan (which is deemed to include the Reserve Component Survivor Benefit Plan, if applicable) and that Servicemember’s election to provide the Survivor Benefit Plan benefits to Former Spouse should be continued by Former Spouse’s being designated as a former spouse beneficiary and that Former Spouse’s designation as a former spouse beneficiary should not hereafter be modified, amended, withdrawn, reduced, or altered by Servicemember during Former Spouse’s lifetime, and IT IS SO ORDERED.
|
Or |
|
Use the following paragraph if the servicemember is not retired and the spouse is to be designated as a former spouse beneficiary of the SBP. |
The Court further finds that Former Spouse should be designated as a former spouse beneficiary of Servicemember’s Armed Forces Survivor Benefit Plan (which is deemed to include the Reserve Component Survivor Benefit Plan, if applicable) and that Servicemember is ordered to designate Former Spouse as a former spouse beneficiary of the Survivor Benefit Plan and that Former Spouse’s designation as a former spouse beneficiary should not hereafter be modified, amended, withdrawn, reduced, or altered by Servicemember during Former Spouse’s lifetime, and IT IS SO ORDERED.
|
Or |
|
If an election is made to have the parties’ children covered as beneficiaries of the SBP, recognize that the coverage will continue only as long as one or more of the children are under the age of eighteen; the coverage can be continued until age twenty-two if the child(ren) are enrolled in college or another qualifying educational institution. If electing such a coverage, use the following as applicable. |
The Court further finds that [the parties’ child[ren]/Former Spouse and the parties’ child[ren]] should be designated as [a child beneficiary/child beneficiaries/former spouse and child beneficiaries] of Servicemember’s Armed Forces Survivor Benefit Plan (which is deemed to include the Reserve Component Survivor Benefit Plan, if applicable) and that Servicemember is ordered to designate [the parties’ child[ren]/Former Spouse and the parties’ child[ren]] as [a child beneficiary/child beneficiaries/former spouse and child beneficiaries] of the Survivor Benefit Plan and that the designation of [the child[ren]/Former Spouse and the child[ren]] as [a child beneficiary/child beneficiaries/former spouse and child beneficiaries] should not hereafter be modified, amended, withdrawn, reduced, or altered by Servicemember during the child[ren]’s eligibility [include if applicable: or Former Spouse’s lifetime], and IT IS SO ORDERED.
|
Or |
|
Although it is not necessary to specifically provide that there will be no SBP former spouse coverage for the former spouse since the failure to award the SBP benefit at the time of divorce is res judicata on the issue (In re A.E.R., 2006 WL 349695 (Tex. App.—Fort Worth 2006) (mem. op.)), it is nevertheless recommended that the following paragraph be included to specifically address the benefit. |
The Court further finds that Former Spouse should not be designated as a former spouse beneficiary of Servicemember’s Armed Forces Survivor Benefit Plan, and IT IS SO ORDERED.
|
Continue with the following if the survivor benefit is awarded. |
IT IS THEREFORE ORDERED that Servicemember shall elect to designate Former Spouse as a former spouse beneficiary of Servicemember’s Survivor Benefit Plan. IT IS FURTHER ORDERED that, pursuant to this order, Former Spouse be and is hereby deemed designated, to the extent permitted by law, a former spouse beneficiary of Servicemember’s Survivor Benefit Plan to receive
|
Include one of the following. |
the highest Survivor Benefit Plan entitlement allowed by law.
|
Or |
[number] dollars ($[amount]) per month.
|
Or |
the percentage equal to the percentage of Servicemember’s disposable retired pay awarded Former Spouse in this order.
|
Or |
[set out other formula for determination of share].
|
Continue with the following. |
Former Spouse is directed to apply for Former Spouse’s entitlement to be deemed a former spouse beneficiary of Servicemember’s Armed Forces Survivor Benefit Plan by notifying the DFAS Legal Department of this Court’s deemed election pursuant to 10 U.S.C. § 1447 et seq., completing a DD Form 2656-10 to effect the deemed election, and sending it, along with a certified copy of this order, to Defense Finance and Accounting Service (DFAS), 8899 E. 56th Street, Indianapolis, Indiana 46249-1200 by certified mail, return receipt requested. Former Spouse’s failure to register [her/his] deemed election within one year of the date this MRPDO is signed may, if not will, forever bar such an election for Former Spouse.
IT IS ORDERED that Servicemember shall not during Former Spouse’s lifetime modify, amend, withdraw, or in any other manner alter the election to name Former Spouse as a former spouse beneficiary of Servicemember’s Armed Forces Survivor Benefit Plan.
|
DD Form 2656-1, the form for a servicemember to make a voluntary election for former spouse and/or child coverage, can be accessed and downloaded at www.dtic.mil/whs/directives/infomgt/forms/eforms/dd2656-1.pdf. DD Form 2656-10, the form for a former spouse to effect a deemed election for former spouse and/or child coverage, can be accessed and downloaded at www.dtic.mil/whs/directives/infomgt/forms/eforms/dd2656-10.pdf. One of these forms must be sent to DFAS at the address above, along with a certified copy of the decree of divorce and/or MRPDO, to register the former spouse as a former spouse beneficiary within one year of the date of the signing of the decree of divorce. Failure to do so within the one-year period will probably bar the former spouse from former spouse coverage. The packet containing the forms to make the deemed election for the former spouse should be sent via certified mail, return receipt requested, for tracking purposes. |
Medical and Commissary Benefits
|
The following provision for medical and commissary benefits is applicable only under certain circumstances. See the practice notes at section 25.80. |
The Court further finds that Former Spouse is entitled to receive medical and dental care under the terms of 10 U.S.C. section 1071 et seq. and to commissary and post exchange privileges to the same extent and on the same basis as a surviving spouse of a retired member of the United States Armed Forces following the date the Final Decree of Divorce is signed.
Continued Jurisdiction and Clarification
|
The following provision may be added if the parties were married for ten or more years during which the servicemember performed ten or more years of active/qualifying reserve duty. Otherwise, it should not be included in the order since DFAS will not, under current law, pay the former spouse’s share of retired pay directly to her/him in those circumstances. |
Although the Court and the parties intend that DFAS make direct payments to Former Spouse of Former Spouse’s interest in the disposable retired pay awarded herein, IT IS FURTHER ORDERED that, if this order does not qualify for direct payment, Servicemember shall cooperate and do all things necessary to aid Former Spouse in obtaining a clarification of this order that will qualify for direct payment of Former Spouse’s interest in the disposable retired pay awarded in this order. IT IS FURTHER ORDERED that this Court reserves jurisdiction to enter such a clarifying order.
|
Continue with the following. |
Without affecting the finality of the Final Decree of Divorce or this Military Retirement Pension Division Order, this Court expressly reserves the right pursuant to section 9.101 et seq. of the Texas Family Code to make orders necessary to clarify, amend, and enforce this order, and IT IS SO ORDERED.
SIGNED on ________________________________.
JUDGE PRESIDING