Valuing and dividing military pension plans poses special challenges to family law practitioners and parties in family law cases. The military’s defined benefit pension plan is not governed by ERISA, and maintains a unique and complicated set of plan rules. Because of this, family law attorneys often do not include specific language related to the process for dividing these accounts, and they often rely on incorrect assumptions when creating formulas for dividing this plan in their settlement agreements and/or court orders. In an effort to help you increase client satisfaction related to the division of these accounts, here are some pointers:
- Always determine if the parties satisfy the 10/10 rule (that the parties were married for 10 years while the member was enlisted). If they do not, then it is not possible to get direct pay from the military for property division purposes, and the parties either need to agree to call the assignment support, or agree that the member will make payment to the non-member.
- Always specifically address survivor benefit plan (“SBP”) coverage. The cost of SBP is generally deducted off the top of the benefit, so it cannot be assigned to one party or the other. Instead, they pay for it on a pro-rata basis. The military will not honor an apportionment of the cost.
- If the member is retired, utilize either a percentage award subject to cost of living adjustments (“COLAs”), or a flat dollar amount, not subject to COLAs (and specify whether COLAs should or should not be included).
- If the member is not retired: a. specify a valuation date, b. try to ascertain, or make provision for obtaining, the member’s average high-3 base pay as of that valuation date, or agree to use a traditional coverture fraction to divide the member’s benefit (based on reservist points for reserve members or total months of service for active members). Either way, under new military rules, you will have to obtain the member’s service history and high-3 as of the date of divorce and include it in your order to divide the pension.
- Address the effect of converting all or a portion of the plan into a disability benefits. Consider the United States Supreme Court’s 2017 decision in Howell v. Howell, holding that it is not permissible to indemnify against the conversion of a military pension into disability.1
- Address who will be responsible for making application for benefits (which should usually be the non-member).
- Address special separation benefits, supplemental awards, and anything else that may be awarded through or in lieu of the pension for service performed during the marriage.