Military DBP

Military Defined Benefit Plan Explained

Division of military defined benefit plan benefits is never perfect, but QDROCounsel domestic relations orders attempt to provide for as fair a division as possible. Since federal law preempts state law, certain federal restrictions impact both parties. The order generated is the most common equitable award to a Former Spouse applicable in most cases. If you need to deviate from QC’s domestic relations order or just want to weigh other options in dividing the pension, contact QDROCounsel Support to be referred to a QDRO Expert from our referral network.

Overview

What are the military benefits to divide?

A service member is a member of a defined benefit plan called the Armed Forces Retirement System. A defined benefit plan generally is a retirement plan that provides a specific pre-determinable amount of benefits to a member at the member’s projected date of retirement payable monthly for the member’s lifetime.

How to handle military benefits in divorce depends primarily on the following: (1) whether the member is active or retired; (2) date of the member’s retirement, if applicable; (3) whether the member is Active Duty or Reserve/National Guard; and (4) whether the Survivor Benefit Plan is/can be awarded.

Is the military member also in a defined contribution plan?

Yes, in most cases. By virtue of employment with the federal government, the military member may elect to participate in the Thrift Savings Plan (TSP), which is a defined contribution plan. See Explanations – Private & Public DCP

If you not certain whether a participant is a TSP participant, the parties may contact TSP directly to inquire once TSP is served with a copy of the Judgment of Dissolution. The contact information is as follows:

Federal Retirement Thrift Investment Board

Thrift Savings Plan Service Office National Finance Center

PO Box 61500

New Orleans, LA 70161-1500

Tel: 504-255-5777

Fax: 504-255-5001

What are some general terms regarding the division of military benefits?

Military service branches are as follows: Army, Navy, Marines, Air Force, Coast Guard, US Public Health Service (USPHS) and National Oceanic and Atmospheric Administration (NOAA). It is common for a military member to have served in multiple Branches over the course of the member’s career.  You must know which branch the Member in your case is serving in, or retired from, at the date of divorce or legal separation.

The domestic relations order dividing military benefits is called a “Military Retired Pay Division Order.” The Military Retired Pay Division Orders are administered as follows: The Defense and Finance Accounting Services administers for the Army, Navy, Air Force and Marine Corps, and the Coast Guard’s Pay and Personnel Center administers for the Coast Guard and the commissioned corps of the USPSH and the NOAA (hereafter collectively referred to as “DFAS”).

Only a member’s “disposable military retired pay” as defined by federal law is payable by DFAS directly to a former spouse pursuant to a Military Retired Pay Division Order. The military will not review any such Order for compliance prior to entry of such order by the court. While the Military Retired Pay Division Order drafted has been accepted by the military in the past, any review by the military may result in required modifications.

What terms are used by QC?

For simplicity, QC references the following terms which are generically used by the public (1) “QDRO,” “(Q)DRO” or “DRO” to refer to any domestic relations order dividing retirement benefits, private and public. (2) “Participant” to refer to any participant, member or employee in a retirement plan. (3) “Alternate Payee” to refer to any alternate payee, payee, former spouse, or nonmember spouse to receive a portion of a participant’s retirement benefits. However, the actual (Q)DRO generated will refer to the appropriate terms required by that plan.

Notwithstanding the foregoing, for military benefits, QC often refers to the “Participant” as the “Member” and the “Alternate Payee” as the “Former Spouse.” The DRO is also referred to as the “Military Retired Pay Division Order.”

Also, any reference to the date of divorce in QC also applies to the date of legal separation, if applicable.

What are the most applicable restrictions regarding the division of military retired pay?

(1) The marital or community property award cannot be more than 50% of the Member’s disposable military retired pay, and in order for the former spouse to receive any cost-of-living adjustments (COLAs), the award must be a percentage.

(2) To receive marital or community property payments from DFAS there must be a 10 year of overlap of military duty with marriage through the date of divorce (10/10 Rule).

(3) Unless a former spouse is married more than 30 years, the former spouse will not be eligible for survivor benefits if the former spouse remarries before reaching age 55. 10 USC §1450(b).

What is the law regarding disability military benefits?

Federal law completely preempts the States from treating waived military retirement pay as divisible community/marital property. See Howell v. Howell (2017) 137 S. Ct. 1400 and Mansell v. Mansell (1989) 490 U.S. 581.

What is the Active Component and the Reserve Component of the military and what is a GrayArea Reservist?

Members belong either to the Active Component or the Reserve Component. Members of the Reserve Component are either in the Reserves or the National Guard (collectively “Reservists”). The National Guard consists of the Army National Guard and the Air National Guard. All branches of the Armed Forces include Reserves.

Reservists typically serve the military part-time while also maintaining civilian employment. A Reservist or National Guard can be deployed should the need arise which means temporarily becoming full-time active duty military personnel again. When activated, Reservists will usually serve the military full-time, and then return to part-time service when deactivated. The term used when the Reservist is still working is “actively drilling.” The term used when the Reservist has left the military after completing 20 years of service (no longer “actively drilling”) but has not yet begun receiving the monthly disposable military retired pay from DFAS is “Gray Area Reservist.” Generally, a Reservist starts receiving a monthly benefit at age 60.

This differs from those who are members of the Active Component who typically serve full-time. An Active Duty service member works for the military full time, may live on a military base, and can be deployed at any time.

You must know whether the member was ever in the Reserves or National Guard. If the Member at any time was serving in the Reserves or National Guard, the information required to draft the Military Pay Division Order is different.

Critical Points to Consider

Has the Member made a general appearance in the case?

The following language is in the Order: The Court has jurisdiction over Member sufficient to satisfy the requirements of 10 U.S.C. §1408(c)(4) because Member was a party in the action to dissolve the marriage and made a general appearance.

Explanation.  For the former spouse to receive retired pay directly from DFAS, the court must have jurisdiction to divide a member’s military pension.  QC’s military domestic relations orders presume that the member has made a general appearance in the case.

Generally, the Former Spouse can only receive direct pay from the military if the Member has made a general appearance in the case. For the Former Spouse to receive retired pay directly from DFAS, the court must have jurisdiction to divide a member’s military pension. If the Member will not make an appearance in the case, there may be an issue with the Member meeting the jurisdictional requirements in state court to divide the military benefits under 8 USFSPA Jurisdiction (10 U.S.C. 1408(c)(4)). Jurisdiction issues will require the assistance of a military division expert. Any Military Retired Pay Division Order filed must affirm that the court has jurisdiction pursuant to federal law. If this is an issue, contact QDROCounsel Support to be referred to our network of experts.

Is the Member currently deployed?

The following language is in the Order: Members’ rights under the Servicemembers Civil Relief Act have been observed.

Explanation: If the Member is currently deployed, the Member may be protected by the Servicemembers Civil Relief Act (SCRA) which is a law protecting members of the military.  QDROCounsel military domestic relations orders presume that the member is not protected by the SCRA.

Congress passed this federal law with the intention to cut down on distractions for soldiers engaged in operations. Thus, the SCRA prevents litigants from pursuing certain actions such as divorce and child custody cases against deployed military personnel without a court order. Further, individual states can and do pass SCRA laws that go above and beyond the federal SCRA. You can still proceed in drafting the military order but deployment will affect the manner in which the case moves forward. Any Military Retired Pay Division Order filed must affirm that the member is not protected by the SCRA. If the member is currently deployed, contact QDROCounsel Support to be referred to our network of experts to ensure no violation of the SCRA.

Has the 10/10 Rule been met?

The following language is in the Order: The Member and the Former Spouse acknowledge that they have been married for a period of more than ten years during which time the Member performed more than ten years of creditable military service.

Explanation:   In order for DFAS to pay disposable military retired pay directly to the Former Spouse for marital property, there must be a 10 year of overlap of military duty with marriage through the date of divorce.  10 U.S. Code § 1408(d)(2). You must know the date the Member entered the military and, if applicable, the date the Member left military duty (all active or all reserve or both) and compare those dates to see if there is a 10 year overlap with the Date of Marriage through the Date of Divorce. This federal rule is known as the 10/10 Rule. Any Military Retired Pay Division Order filed must affirm that the 10/10 Rule is met.  QDROCounsel military domestic relations orders presume that the 10/10 Rule has been met.

For the Defense Finance and Accounting Service (DFAS) to make direct payments to the former spouse with a DRO, there must be a total of 120 months (10 years) of marriage (date of marriage to date of divorce) concurrent with the number of months that member earned creditable service (active or reserve) in any of the Uniformed Services. If there is not a 10 year overlap, contact QDROCounsel Support to be referred to a military expert to evaluate other options such as support.

How do I know the date the member entered the military? Documents to determine: (1) If Active Only/Retired: Form DD 214 Certificate of Release of Discharge from Active Duty; (2) If Active Only/Not Retired: Member’s Military Leave and Earnings Statement (LES); (3) If Ever Reserve: Most recent or final Chronological Statement of Retirement Points; (4) If Gray Area Reserve (completed 20 years): “20 Good Years Letter.”


How do I know the date the member left the military? Documents to determine: (1) If Active Only/Retired: Form DD 214 Certificate of Release of Discharge from Active Duty; (2) If Ever Reserve: Final Chronological Statement of Retirement Points; (3) If Gray Area Reserve (completed 20 years): “20 Good Years Letter”

Has divorce or legal separation been entered by the court?

But there is plenty to do regarding military if the parties are not yet divorced! Make sure you have gathered all the information necessary using QC’s Military Questionnaire. Utilize the Plan Analysis Tool to learn exactly how to proceed with your case. Read the Plan Analysis Report generated before you proceed to calculate the marital interest (if applicable) and draft the Military Retired Pay Division Order. Draft the appropriate judgment language using QC’s Judgment Language Tool which provides a clear general award to the former spouse of the member’s disposable military retired pay and the Survivor Benefit Plan, if applicable.

If the Former Spouse should not be the designed beneficiary under the Survivor Benefit Plan (SBP), disregard the tips in the section below and edit the SBP award to the Former Spouse in the divorce judgment language as follows: “The Former Spouse shall not be the designated beneficiary under the Survivor Benefit Plan (SBP).”

Which branch of service should be in the Military DRO if the member was in several?

It is common for military members to have served in multiple Branches of the Uniformed Services over the course of their careers. For purposed of the DRO, select the Branch of Service the member is serving in, or retired from, at Date of Divorce.

Is the Member retired and receiving a monthly benefit?

Generally, you need to know whether the member is retired and receiving a monthly benefit because DFAS handles the division of retirement benefits different depending on whether the member is retired and receiving disposable retired pay monthly from DFAS.

A member is NOT retired and receiving a monthly benefit if the Member is one of the following: (1) Active Duty, (2) Reserve or National Guard Duty (actively drilling), or (3) “Gray Area Reservist.”

A “Gray Area Reservist” refers to a Reserve or National Guard member who has left the military after completing 20 years of service (no longer “actively drilling”) but has not yet begun receiving Retired Pay from DFAS. Generally, a Reserve or National Guard Member starts receiving a monthly benefit at age 60. A Gray Area Reservist will receive from the appropriate agency a “20 Good Years Letter” or if completed will submit to DFAS the DD Form2656 Data for Payment of Retired Personnel. Generally, a Reserve or National Guard Member starts receiving a monthly benefit at age 60 but must have 20 “qualifying” years of service to be eligible for retired pay at age 60.

Information on the date the member retired can be found in the following documents:

1. If Active Only and Retired: Form DD 214 Certificate of Release of Discharge from Active Duty

2. If Active/Reserve and Retired: DD Form 2656 (Data for Payment of Retired Personnel)

When did the Member enter the military?

Generally, you need to know the Member’s Date of Initial Entry into Military Service (DIEMS). The DIEMS is found on the following documents:

1. If Active Only and Retired: Form DD 214 Certificate of Release of Discharge from Active Duty

2. If Active/Reserve and Retired: DD Form 2656 (Data for Payment of Retired Personnel)

3. If Reserve: Most recent or final Chronological Statement of Retirement Points (Point Statement)

4. If Active Duty: Member’s Military Leave and Earnings Statement (LES).

The easiest way to obtain a military document is from the Member (who usually can find online). Otherwise, you can obtain with a Court Ordered Subpoena (signed by a judge).

Divorced before 12/23/2016, or member retired before the parties' date of divorce

What is the award to the former spouse if the member is retired or a Gray Area Reservist?

The following language is in the Order: The Former Spouse is awarded [?]% of the Member’s disposable military retired pay.

Explanation: The paragraph above applies when the following occurs: The member is retired or a Gray Area Reservist and (1) the parties divorced before 12/23/2016, or (2) the member retired before the date of divorce. The Former Spouse should be awarded a certain percentage per month from the Member’s disposable military retired pay. The percentage award payable by the military cannot be more than 50% and in order for the former spouse to receive any cost-of-living adjustments (COLAs), the award must be a percentage.


When Separate Property Exists:

When a separate property interest exists, the former spouse’s percentage is calculated using the appropriate Marital Fraction (Time Rule). The appropriate Marital Fraction depends on whether the Member was ever in the Reserves or National Guard. The Marital Fraction percentage can be calculated using the Calculation Suite – Marital Fraction (Time Rule) for Military to determine the Former Spouse’s share. The Instructions in the Calculation Suite will let you know in detail the documents you need to complete the Calculator. A report will be emailed with the Former Spouse’s Payee’s percentage and an explanation of the Marital Fraction calculation.

When 100% Marital Property:

If the member served in the military (active or reserve) ONLY after the Date of Marriage and before the Date of Division, then 100% of the military benefit is marital property. The Date of Division is usually the applicable marital division date based on your state’s law, court order or the parties’ agreement. Since 100% of the benefit is marital property, the Former Spouse is generally awarded 50% of the disposable military retired pay in the Military Retired Pay Division Order.

What is the award to the former spouse if the member is not retired and was never in the Reserves or National Guard?

The following language is in the Order: Former Spouse is awarded a percentage of Member’s disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is [?] months of marriage during Member’s creditable military service, divided by Member’s total number of months of creditable military service.

Explanation: The paragraph above applies when the following occurs: The parties divorced before 12/23/2016 and the Member is still working. Member was NEVER in the Reserves or National Guard and therefore only served Active Duty. Since the Member is still working after divorce, there is a separate property interest.

DFAS will calculate the Former Spouse’s fractional interest at the time the Member retires and starts receiving a monthly benefit. The Marital Fraction is written in the Military Retired Pay Division Order and is generally defined as follows: The number of months between Date of Marriage and Date of Division comprise the numerator of the fraction. (The Date of Division is usually the applicable marital division date based on your state’s law, court order or the parties’ agreement.) The denominator is the total number of months that Member was in the military through date of retirement. This fraction/percentage represents the total marital/community property interest. The percentage is multiplied by 50% which represents the former spouse’s marital/community property interest.

A few states freeze the Marital Fraction at the date of divorce as if the member ceased member’s interest in the military as of the date of divorce. Division in this manner is also referred to as the “bright-line approach.” The member does not benefit from any increases in service or pay that occur after the divorce, but will receive COLAs. The Military DRO Tool will apply this marital fraction if you are in one of those states

To draft the Military Retired Pay Division Order, you must obtain the total number of months of Member’s creditable military service (working as Active Duty) between Date of Marriage and Date of Division. This information can be found on Member’s Military Leave and Earnings Statement (LES), which shows among other things Member’s DIEMS Date (Date of Initial Entry into Military Service). The number of months can be calculated using the Calculation Suite – Marital Fraction (Time Rule) for Military. The Instructions in the Calculation Suite will let you know in more detail the documents you need to complete the Calculator. A report will be emailed with the number of months to input in the Military Tool. 

The member must be active duty only! If at any time the Member was/is in the Reserves, DFAS will reject this Order and require a division by points.

What is the award to the former spouse if the member is not retired, was/is in the Reserves or National Guard, and is not a Gray Area Reservist?

The following language is in the Order: Former Spouse is awarded a percentage of Member’s disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is [?]Reserve retirement points earned during the period of the marriage, divided by the Member’s total number of Reserve retirement points earned.

Explanation: The paragraph above applies when the following occurs: The parties divorced before 12/23/2016 and the Member is still working. The Member was/is in the Reserves or National Guard. Since the Member is still working (not a Gray Area Reservist), there is a separate property interest.

DFAS must calculate the Former Spouse’s fractional interest at the time the Member retires and starts receiving a monthly benefit. The Marital Fraction is written in the Military Retired Pay Division Order and is generally defined as follows: The number of points between Date of Marriage and Date of Division comprise the numerator of the fraction. (The Date of Division is usually the applicable marital division date based on your state’s law, court order or the parties’ agreement.) The denominator is the total number of points Member was in the military through date of retirement. This fraction/percentage represents the total marital/community property interest. The percentage is multiplied by 50% which represents the former spouse’s marital/community property interest.

A few states freeze the Marital Fraction at the date of divorce as if the member ceased member’s interest in the military as of the date of divorce. Division in this manner is also referred to as the “bright-line approach.” The member does not benefit from any increases in service or pay that occur after the divorce, but will receive COLAs. The Military DRO Tool will apply this marital fraction if you are in one of those states

To draft the Military Retired Pay Division Order, you must obtain the total number of points the Member earned between Date of Marriage and Date of Division. This information can be found on Member’s most recent Chronological Statement of Retirement Points.

The Chronological Statement of Retirement Points lists a beginning and ending date for each one-year period of service. Select the column for the period closest to Date of Marriage and Date of Division. As closely as possible, you should calculate the exact number of points earned during that time period. Generally, each point represents one day of service.

Depending the Member’s current branch of service, the following are the exact form names for branch and URLs to direct the Member to request the point summary:

Form Names:

Air Force Reserve / Air National Guard:

Army Reserve: DARP Form 549 or DA Form 5016:

Army National Guard: NGB Form 23B:

Navy Reserve: NRPC Form 1070-124:

USMC Reserve: NAVMC Form 798:

Coast Guard Reserve: CG Form 4175:

AF Form 526 – Point Summary Sheet

Chronological Statement of Retirement Points

Army National Guard Retirement Points History

Annual Retirement Points Record

Reserve Retirement Credit Report

USCG Reserve Retirement Points Statement

Personnel Records:

Air Force: https://mypers.af.mil

Army: https://iperms.hrc.army.mil/

Coast Guard: http://cgbi.osc.uscg.mil/2.0/contentpanes/personal_files/summary_sheet.cfm

Marine Corps: https://sso.tfs.usmc.mil/sso/DoDConsent.do

Navy: https://www.bol.navy.mil/DefaultPub.aspx

National Guard is by state and has to be done via the telephone. For CA, the number is 916-854-3409.

What if the parties want to award an amount rather a percentage?

In order to ensure the most equitable division possible, a percentage rather than an amount of the disposable retired pay must be awarded to the former spouse. If an amount is awarded, DFAS will not pay any cost-of-living-increases (COLAs) on the former spouse’s award to the former spouse or to the member. If the parties agree on an amount, it should be converted to a percentage.

Divorced after 12/23/2016 and the member is not retired or retired after the parties' date of divorce

What is the award to the former spouse?

The following language is in the Order:

The Former Spouse is awarded [?]% of the Member’s disposable military retired pay the Member would have received had the Member retired at the date of divorce based on the information stated in Paragraph III.D(2) below.

Explanation: The paragraph above applies when (1) the parties did NOT divorce before 12/23/2016 and (2) the member is not retired, or the member retired after the parties’ Date of Divorce. The Former Spouse is awarded a certain percentage per month from the Member’s disposable military retired pay valued at the date of divorce. See the section below regarding why the former spouse’s share is valued at date of divorce.  The percentage award payable by the military cannot be more than 50%, and in order for the former spouse to receive any cost-of-living adjustments (COLAs), the award must be a percentage.

When Separate Property Exists:

If the member was NOT a Gray Area Reservist, a separate property interest always exists for the following reasons: The member may have served in the military before the Date of Marriage but served after the Date of Division since the member is either still working or retired after the Date of Divorce. The Date of Division is usually the applicable marital division date based on your state’s law, court order or the parties’ agreement.

When a separate property interest exists, the Former Spouse’s percentage is calculated using the appropriate Marital Fraction (Time Rule). The Marital Fraction percentage can be calculated using the Calculation Suite – Marital Fraction (Time Rule) for Military to determine the Former Spouse’s share. The Instructions in the Calculation Suite will let you know in detail the documents you need to complete the Calculator. A report will be emailed with the Former Spouse’s Payee’s percentage and an explanation of the Marital Fraction calculation.

When 100% Marital Property:

If the member was/is a Gray Area Reservist, there may or may not be a separate property interest. If the Member served in the military (active or reserve) ONLY after the Date of Marriage and before the Date of Division, then 100% of the military benefit is marital property. The Date of Division is usually the applicable marital division date based on your state’s law, court order or the parties’ agreement. This means that the Member left the Service to become a Gray Area Reservist before Date of Division and is waiting to retire at around age 60 to receive Member’s disposable military retired pay. Since 100% of the benefit is marital property, the Former Spouse is generally awarded 50% of the disposable military retired pay in the Military Retired Pay Division Order.

Why is the former spouse’s share valued at date of divorce?

When the parties divorce after 12/23/2016 and the member is not retired or retired after the parties’ date of divorce, the percentage awarded to the former spouse is impacted by the National Defense Authorization Act (NDAA) of 2017, in Section 641, signed by the President on December 23, 2016, and revised in Section 624 of the NDAA of 2018, (“NDAA 2017”).

This law in effect changed the way DFAS must calculate benefits payable to the former spouse and also requires certain additional information in military retired pay division orders. NDAA 2017 requires certain information in the Military Retired Pay Division Order.

In addition, DFAS is required to calculate the former spouse’s pension based on the value of a member’s retired pay as of the date of divorce. Former spouse’s share of the member’s disposable income is limited to the amount of retired pay to which the member would have been entitled using the member’s retired pay base and years of service on the date of divorce increased by the cost-of-living amounts granted to military retirees from the date of divorce to the date the member retires.

Most States divide a member’s monthly benefit based on a marital fraction as of the date of retirement. NDAA 2017 freezes the division as of the date of divorce. Division in this manner is called the Frozen Marital Fraction and also referred to as the “bright-line approach.” The former spouse does not benefit from any increases in service or pay that occur after the divorce. DFAS will ONLY pay benefits directly to a former spouse pursuant to NDAA 2017.

If your state law does not apply the Frozen Marital Fraction, depending on the facts of your case especially if the Member is not close to retirement, you may want to determine the difference between what DFAS will pay the Former Spouse pursuant to the Military Retired Pay Division Order and what the Former Spouse should receive as the marital fraction valued as of the date of retirement. Contact QDROCounsel Support to be referred to a military expert to pursue that inquiry, if appropriate. If the Member is close to retirement, pursuing the difference is often not elected by the parties. Regardless, you should file a Military Retired Pay Division Order for the Former Spouse to receive the benefits that are payable from DFAS.

What about writing the Marital Fraction into the military retired pay order?

There have been many issues with DFAS’s ability to calculate the former spouse’s share using the Marital Fraction (Time-Rule) internally if the formula is written into the court order rather than a percentage . For that reason, QDROCounsel only recommends a percentage award stated in the military retired pay order when possible. The Marital Fraction (Time-Rule) can be calculated in the Calculation Suite – Marital Fraction (Time Rule) Calculator for a Military Plans.

What if the parties want to award an amount rather a percentage?

In order to ensure the most equitable division possible, a percentage rather than an amount of the disposable retired pay must be awarded to the former spouse. If an amount is awarded, DFAS will not pay any cost-of-living-increases (COLAs) on the former spouse’s award to the former spouse or to the member. If the parties agree on an amount, it should be converted to a percentage.

Survivor Benefit Plan

What survivor benefit is payable to a former spouse?

The military offers a Survivor Benefit Plan and Reserve Component Survivor Benefit Plan (“SBP”) which provide one eligible beneficiary with a monthly benefit for the lifetime of the beneficiary should the member predecease the beneficiary.

Election to participate in the SBP is generally made at the time of retirement, although some situations allow a retiree to add coverage after retirement. In most cases, costs to participate are deducted from the member’s monthly pay and are based on the amount of coverage a member elects. The maximum base amount is 55% of retired pay. The cost of the SBP is highly subsidized with a large portion (about 45%) paid by the government. The cost to the member is usually 6.5% of the member’s monthly benefit for the maximum base amount.

If a member predeceases the former spouse, in almost all states the former spouse’s marital or community property interest includes any survivor benefits payable by the military.  Generally, if the member is retired, you must know whether the member elected the SBP at retirement and if applicable forms have been timely served already on the military to secure the SBP.  If the member is already retired, it may not be possible to award the SBP.  The award of the SBP cannot exceed the amount elected by the member at retirement.

What are the issues if the Survivor Benefit Plan (SBP) is awarded to the Former Spouse?

If the Survivor Benefit Plan (SBP) is awarded to the Former Spouse, there are 2 issues to consider namely (1) should the maximum amount payable from the SBP be awarded to the Former Spouse and (2) should the SBP cost be divided pro rata.  Most parties agree to award the Former Spouse the maximum amount payable from the SBP when possible and to divide the maximum amount payable from the SBP pro rata because it is the simplest allocation and, in most cases, equitable enough for both parties.  QC’s Marital Retired Pay Division Orders allocate the SBP in this manner.

 

What are the facts? SBP costs for the former spouse (generally 6.5% in most cases) come off the top (deducted out of gross retired pay) before the percentage awarded to the former spouse is applied. The SBP only allows 1 beneficiary. The maximum SBP payable is 55% of the member’s monthly benefit unless the member is retired and elected a reduced amount.

What is the impact? In effect the member and the former spouse each will pay a pro rata portion of the SBP cost in exchange for a possible benefit as follows: (1) Should the member predecease the former spouse, the former spouse will receive the maximum SBP payable. The former spouse is deriving a benefit from the possibility of receiving an increased amount of the SBP for the remainder for former spouse’s life if the member dies before the former spouse. (2) Should the former spouse predecease the member, former spouse’s share will revert to the member and the SBP cost will cease. The member is deriving a benefit from the possibility of receiving 100% of the member’s monthly benefit for the remainder of the member’s life if the former spouse dies before the member.

Is the allocation perfect? No. There is no perfect way to allocate the SBP. However, in most cases the foregoing is fair enough for the parties.  The allocation is based on the most common fact pattern and the most common agreement of the parties.  Since DFAS will only calculate the SBP premium in this manner, any other allocation generally requires a complex recalculation of the percentage awarded to former spouse. Because there is no perfect allocation of survivor benefits, most parties agree to allocate the SBP pro rata of the maximum amount payable to avoid the retention of actuaries and pension experts. However, depending on the facts of your case, this allocation may not necessarily be consistent with California law.  If there is an award of the SBP, QC’s Military Retired Pay Division Orders allocate the SBP pro rata of the maximum amount payable.


State courts across the country handle the SBP award differently. Most agree that the member should pay for a share of the SBP cost with the possible reversion of 100% of the pension pursuant to federal law. For example, In re Marriage of Smith (2007), 148 Cal.App.4th 1115, 56 Cal.Rptr. 3d 341 (2007) found that the former spouse’s percentage should be recalculated and reduced (often at a later time) to bear the exact pro rata portion of the reduction for the SBP premiums related to a survivor benefit (often referred to as a “pro tanto” calculation). However, a pro tanto calculation (or any variation thereof) requires a military pension division expert (1) to evaluate and weigh the facts in the case, (2) to conduct discovery, (3) to perform required complex calculations, and (4) in many cases to perform or outsource actuarial valuations. If you do not want to allocate the SBP pro rata of the maximum amount payable, contact QDROCounsel Support to be referred to our network of experts.

Due to the time and expense of retaining a military pension division expert, the reality is that most parties do not proceed with the recalculation and reduction of the former spouse’s percentage of the disposable military retired pay so that the former spouse’s share of the SBP cost is increased to be more than pro rata. The parties may want to consider the following examples:


(1) If the parties were married at least most of the time the member was performing service in the military, the difference in the pro rata versus a pro tanto allocation is generally not significant. Both parties would incur the cost of the possibility of a potential increased benefit in the event of the death of the other.


(2) If the member served active duty primarily before marriage and was reserve when married, the difference is generally more significant, and the member may want to consult with a military pension division expert. Both parties would incur the cost of the possibility of a potential increased benefit in the event of the death of the other; however, the former spouse receives a windfall with the possible larger increase in the monthly benefit with the SBP than the member’s possible increase to receive 100% of the benefit if the former spouse dies first. This may be agreeable to the parties or the parties may want to adjust the percentage awarded to the Former Spouse so that either the former spouse pays for a larger share of the of the cost of the SBP or receives a smaller percentage of the SBP.


QDROCounsel cannot make a determination as to what is the fairest allocation of this benefit based on the parties’ circumstances. The Military Order was prepared based on the most common fact pattern and the most common agreement of the parties. Family law court is a court of equity concerned with the rights of the divorcing parties. Depending on the facts in the case, there is no way to know how the court will determine what is most equitable with a retired employee who has a survivor annuity.

QDROCounsel cannot ensure SBP coverage. Even with a state court order awarding the SBP, it may not be possible to secure the SBP depending on the facts of your case (1) if the SBP is not awarded in the divorce judgment or not timely awarded in the Military Retired Pay Division Order and the appropriate forms are not timely served on the DFAS especially if the Member does not cooperate in ensuring the SBP. Note that if you are not sure whether SBP will be approved by DFAS, there is no harm including it in the military retired pay order and timely submitting all forms to the extent possible. The Former Spouse may need to deal directly with DFAS or obtain counsel for representation to resolve issues regarding SBP with Member and/or DFAS and/or the court. If you believe the SBP will be an issue, contact QDROCounsel Support to be referred to our network of experts to evaluate the situation.

What is the SBP award in all QC’s Military Retired Pay Division Orders?

The following language is in the Order:

Death of Member – Survivor Benefit Plan (SBP).

1. Former Spouse shall be treated as the Member's irrevocable beneficiary under the Survivor Benefit Plan ("SBP"). Specifically, Member shall immediately elect the former spouse-only option and shall select as the base amount the full amount of monthly retired pay (maximum base amount) unless the Member is retired and elected a reduced base amount in which case the Member shall immediately elect the former spouse-only option for that reduced base amount.

2. DFAS requires the timely receipt of one of the forms described below to provide the SBP to the Former Spouse. However, to ensure that there are no issues with the SBP award, the following forms shall be completed immediately by both the Member and Former Spouse:

                  a. Member and Former Spouse shall timely execute (with witnesses) and serve on DFAS the Survivor Benefits Plan (SBP) Election Statement for Former Spouse Coverage (DD Form 2656-1). Failure to timely submit this form within one year from the date of this Judgment may result in the loss of the SBP.

                  b. Former Spouse shall timely execute and serve on DFAS the Survivor Benefit Plan (SBP)/Reserve Component (RC) SBP Request for Deemed Election (DD Form 2656-10). This form is a "deemed election" request per 10 U.S.C. §1488. Failure to timely submit this form within one year from the date of this Order may result in the loss of the SBP.

3. Member shall do nothing to reduce or eliminate that benefit to Former Spouse. This "former spouse" election may not be altered or withdrawn during the lifetime of Former Spouse without Former Spouse's express written consent. If the Judgment has been filed more than one year ago, then DFAS will likely not accept the DD Form 2656-1. Former Spouse must make sure that the DD Form 2656-10 is timely served on DFAS in order to attempt to secure Former Spouse's right to the SBP.

4. The parties are hereby informed that the SBP is not available to Former Spouse if Former Spouse remarries before becoming age 55, unless married to Member more than 30 years. 10 USC §1450(b).

5. SBP premiums for the Former Spouse (generally 6.5% in most cases) come off the top (deducted out of gross retired pay) before the percentage awarded hereinabove is applied. In effect Member and Former Spouse each will pay for a portion of the SBP premium in exchange for a possible benefit. Should Member predecease Former Spouse, Former Spouse shall receive the maximum SBP. Should Former Spouse predecease Member, Former Spouse's share shall revert to Member and the SBP cost will cease. Since DFAS will only calculate the SBP premium in this manner, the parties agree to waive any further allocation of the SBP premium which would require a recalculation of the percentage awarded to Former Spouse herein. [For example, some case holdings have found that a former spouse's percentage be recalculated (often at a later time) and reduced to bear the exact pro rata portion of the reduction for the SBP premiums related to a survivor benefit. In re Marriage of Smith (2007), 148 Cal.App.4th 1115, 56 Cal.Rptr. 3d 341 (2007).]

Explanation:  See the previous prompt for a detailed explanation of the issues and reasons for the above award. The award is written into QC’s Military Retired Pay Division Order to protect the SBP award to the extent possible. See the prompts below describing pitfall in securing the SBP.


Even with a state court order awarding the SBP, it may not be possible to secure the SBP depending on the facts of your case (1) if the SBP is NOT awarded in the divorce judgment or NOT timely awarded in the Military Retired Pay Division Order and the appropriate forms are NOT timely served on the DFAS especially if the Member does not cooperate in ensuring the SBP. If you have not done so already complete the Plan Analysis Tool to determine the issues in your case. If you believe there will be problems, contact QDROCounsel Support to be referred to our network of experts to evaluate the situation.

When is the former spouse NOT awarded the SBP?

Language: The following language is in the Order:

Death of Member. – Survivor Benefit Plan (SBP). Former Spouse is not awarded the SBP.  Member’s retired pay will terminate upon Member’s death.

OR

Death of Member – Survivor Benefit Plan (SBP) The SBP is not available to a Former Spouse if Former Spouse remarries before becoming age 55, unless married to Member more than 30 years. 10 USC §1450(b). Former Spouse meets that criteria and therefore is NOT entitled to the SBP. If Former Spouse becomes unmarried before Member retires or if the law changes regarding the ability for the Former Spouse to be awarded the SBP, this court reserves jurisdiction to award the SBP to Former Spouse, if applicable.

Explanation: The following are situation when the SBP is NOT awarded to former spouse:

(1)       The parties agree or the court orders that the SBP should not be awarded.

(2)       The Former Spouse remarried before age 55 and was not married to the Member for more than 30 years.

Pursuant to federal law, unless a former spouse is married more than 30 years, the former spouse will not be eligible for survivor benefits if the former spouse remarries before reaching age 55. 10 USC §1450(b). (Note that if the Former Spouse later becomes unmarried to the subsequent spouse, it may be possible to award the SBP with a subsequent order depending on the facts of your case.)

(3)      The member waived the SBP.

If the member retired during the marriage, the former spouse must be the designated beneficiary unless waived by the former spouse at the member’s retirement. If the member retired after divorce, member waived the SBP, and it is too late to reinstate the SBP, the SBP will not be awarded.

(4)       The member changed the SBP beneficiary to a subsequent spouse.

After retirement if the parties are divorced and the member changed the SBP beneficiary to a subsequent spouse, and if it is too late to reinstate the SBP, the SBP will not be awarded. Go to Plan Analysis – Defined Benefit Plan -Military for further analysis based on your case facts.

What are the steps to secure the SBP if the parties are not yet divorced?

If the divorce has not yet been entered and the Member may or may not be retired and receiving a monthly benefit, the following outlines the steps needed to secure the SBP:

First the parties must divorce. If you used QC’s Judgment language, the divorce judgment awards the Former Spouse the SBP. If the Former Spouse should be awarded the SBP, consider the following tips: 

There is a deadline to secure the SBP within 1-year from date of divorce with DD Form 2656-1 or so long as the Member does not retire or die, within 1-year from the date of the Military Retired Pay Division Order with DD Form 2656-10. Accordingly, so long as the Member does not retire or die, you should be able to secure the SBP with either the divorce judgment or the Military Retired Pay Division Order.

To ensure the SBP is payable, proceed as follows:

(1) Draft, file with the court and enter the divorce judgment which should include general divorce judgment language that adequately protects both parties including survivor benefit rights, if applicable.

(2) Determine/Calculate the marital or community interest in the Calculation Suite as outlined above.

(3) Draft, file with the court and enter the Military Retired Pay Division Order.

(4) Complete both of the following SBP forms if possible: (1) Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage (DD Form 2656-1) signed by the Member and Former Spouse or (2) Survivor Benefit Plan (SBP) Request For Deemed Election Form (DD Form 2656-10) signed by the Former Spouse. The completion of the DD Form 2656-1 requires the Member’s cooperation which is sometimes not possible to obtain. At a minimum obtain the Former Spouse’s signature on the DD Form 2656-10 Form which should be sufficient to secure the SBP. However to ensure there are no issues, it is always best if you can serve both forms within 1-year from date of the divorce judgment.  You must submit the Deemed Election DD Form 2656-10 when it has been more than 1 year since date of divorce and the Member has not retired or died.

(5) Timely serving the divorce judgment, Military DRO and applicable forms on DFAS for implementation.


DFAS requires timely receipt of 1 of the 2 forms described above to provide the SBP to the former spouse. However, to ensure that there are no issues with the SBP award, if possible, we recommend serving both forms. The completion of the DD Form 2656-1 requires the member’s cooperation which is sometimes not possible to obtain. Best practice is to file and enter the Military Retired Pay Division Order and then serve on DFAS that Order along with the divorce judgment and both forms within 1-year from the date of divorce. Failure to timely submit one of these forms as described above may result in the loss of the SBP even if there is a state court order awarding the SBP.

Even with a state court order awarding the SBP, it may not be possible to secure the SBP depending on the facts of your case (1) if the SBP is not awarded in the divorce judgment or not timely awarded in the Military Retired Pay Division Order and the appropriate forms are not timely served on the DFAS especially if the Member does not cooperate in ensuring the SBP. If you believe there will be problems meeting the 1 year deadlines, contact QDROCounsel Support to be referred to our network of experts to evaluate the situation.

What are the steps to secure the SBP if the member is already retired and the date of divorce occurred within 1-year from today’s date?

If SBP Awarded in the Divorce Judgment

If the SBP was awarded in the divorce judgment, generally you must perfect that survivor benefit award by serving the divorce judgment and applicable forms within 1-year of the date of the divorce. To ensure the SBP is payable, immediately determine whether the SBP has already been secured with DFAS. Depending on your case facts proceed as follows:

(1)       It may be that the SBP has already been secured by the parties. Confirm that the Member or Former Spouse received a letter from DFAS that the SBP is secured for the Former Spouse with 1 of the 2 appropriate forms submitted with the Judgment namely (1) Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage (DD Form 2656-1) signed by the Member and Former Spouse or (2) Survivor Benefit Plan (SBP) Request For Deemed Election Form (DD Form 2656-10) signed by the Former Spouse.

(2)       If you cannot confirm (1) above, submit to DFAS either DD Form 2656-1 or DD Form 2656-10 with a copy of the divorce judgment within 1 year from the date of divorce.

(3)       Follow up with DFAS until you receive confirmation of the SBP award for Former Spouse.


If there is time, it is always better to serve the military with the divorce judgment, the Military Retired Pay Division Order, and the applicable forms all together. Often the divorce judgment does not specify with clarity the award of the SBP and the Military Retired Pay Division Order should. But if it is a close call and the Military Retired Pay Order cannot be filed within 1-year from the date of judgment, do not delay serving the divorce judgment and applicable forms to make the required deadlines.


DFAS requires timely receipt of 1 of the 2 forms described above to provide the SBP to the former spouse. However, to ensure that there are no issues with the SBP award, if possible, we recommend serving both forms. The completion of the DD Form 2656-1 requires the member’s cooperation which is sometimes not possible to obtain. Failure to timely submit one of these forms within 1-year from the date of the divorce judgment may result in the loss of the SBP even if there is a state court order awarding the SBP if the Member dies or retires.

If SBP NOT Awarded in the Divorce Judgment

If the SBP was NOT awarded in the divorce judgment but the Former Spouse should have been awarded the SBP, generally you must perfect that survivor benefit award by serving the divorce judgment, a SBP court ordered award, and applicable forms within 1-year of the date of the divorce. To ensure the SBP is payable, immediately proceed as follows:

(1) Immediately draft and enter the Military Retired Pay Division Order with the SBP award and immediately submit to DFAS the Survivor Benefit Plan (SBP) Request For Deemed Election Form (DD Form 2656-10) signed by the Former Spouse (DD Form 2656-10) with a copy of the divorce judgment for implementation.

(2) If you have the Member’s cooperation also submit to DFAS the Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage (DD Form 2656-1) signed by the Member and Former Spouse (DD Form 2656-1).

(3) If you believe the Member will retire or die before you can prepare the Military Retired Pay Division Order and serve it on DFAS with the required forms, you may want to do one of the following:

(a) Modify the divorce judgment to award the SBP and serve at least 1 of the 2 forms described above on DFAS within 1-year from the date of divorce, if possible.

(b) Try to secure the SBP by serving the DD Form 2656-1 on DFAS with a copy of the divorce judgment. Have the Member follow up voluntarily to make sure the SBP is secured. Proceed to file and serve the Military Retired Pay Division Order with the SBP award and DD Form 2656-10 on DFAS as soon as possible.


It may not be possible to secure the SBP depending on the facts of your case (1) if the SBP is not awarded in the divorce judgment or not timely awarded in the Military Retired Pay Division Order and the appropriate forms are not timely served on the DFAS especially if the Member does not cooperate in securing the SBP. If you believe there will be problems meeting the 1-year deadline, contact QDROCounsel Support to be referred to our network of experts to evaluate the situation.

What are the steps to secure the SBP if the member is already retired and it has been more than 1-year since the date of divorce?

The SBP may or may not be awarded in the divorce judgment. Depending on the facts of your case, it may NOT be possible to award the SBP to the former spouse especially if one of the following has occurred:

(1) Member changed the SBP beneficiary if remarried to a subsequent spouse.

(2) Member waived the SBP after date of divorce.

(3) Within 1-year of the divorce judgment the required forms were not served on DFAS to secure the SBP.

You may want to contact QDROCounsel Support to be referred to our network of experts to evaluate the situation.

Notwithstanding the foregoing, the following situations may provide the SBP to the Former Spouse:

(1)          The Member voluntarily kept the Former Spouse as the named beneficiary after date of divorce. Member’s recent pay stub would confirm the SBP and identifies the beneficiary. If that is the case, have the Member contact DFAS to complete any additional forms required to ensure that Former Spouse remains the beneficiary. There may be issues because the 1-year deadline has passed.

(2)          The Member also may have voluntarily timely notified DFAS of the divorce within the 1-year deadline with instructions to keep the Former Spouse as the beneficiary. If that is the case, have the Member provide written documentation from DFAS that the Former Spouse’s interest is secured.

(3) There will likely issues because the 1-year deadline has passed under (1) and (2) above. However, you may want to proceed to try to obtain the SBP if it is at all possible as follows:

(a) Draft the Military Retired Pay Division Order with the SBP award.

(b) Complete and serve at least 1 of the 2 following SBP forms on DFAS: (1) Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage (DD Form 2656-1) signed by the Member and Former Spouse or (2) Survivor Benefit Plan (SBP) Request For Deemed Election Form (DD Form 2656-10) signed by the Former Spouse.

(c) Submit the divorce judgment, Military DRO and applicable SBP forms on DFAS for implementation.


If the SBP is not awarded in the judgment and/or not timely awarded in the Military Retired Pay Division Order and the appropriate forms are not timely served on the Defense and Finance Accounting Service (DFAS), then generally the former spouse will NOT be eligible to receive the SBP. Generally, if more than 1-year from the date of the divorce judgment has occurred and the member is retired with the former spouse no longer the SBP beneficiary, it is NOT possible to award the SBP to former spouse. Even if there is a state court order awarding the SBP, if the retired member removed the former spouse as beneficiary or waived the SBP, generally it will not be payable to the former spouse.

What are the steps to secure the SBP if the member is NOT retired and the date of divorce occurred within 1-year from today’s date?

If SBP Awarded in the Divorce Judgment

If the SBP was awarded in the divorce judgment, there is a deadline for the Member and/or Nonmember to secure the SBP within 1- year from date of divorce which may have been missed. But even if the deadline is missed, so long as the Member does not retire or die you should be able to secure the SBP within 1-year of filing the Military Retired Pay Division Order. To ensure the SBP is payable, immediately determine whether the SBP has already been secured with DFAS. Depending on your case facts proceed as follows:

(1) It may be that the SBP has already been secured by the parties. Find out if the Member or Former Spouse received a letter from DFAS that the SBP is secured for the Former Spouse with 1 of the 2 following forms submitted with the divorce judgment: (1) Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage (DD Form 2656-1) signed by the Member and Former Spouse or (2) Survivor Benefit Plan (SBP) Request For Deemed Election Form (DD Form 2656-10) signed by the Former Spouse.

(2)          If you cannot confirm (1) above, submit to DFAS either DD Form 2656-1 or DD Form 2656-10 with a copy of the divorce judgment within 1-year from the date of divorce.

(3)          Follow up with DFAS until you receive confirmation of the SBP award for Former Spouse.


If there is time, it is always better to serve the military with the divorce judgment, the Military Retired Pay Division Order, and the applicable forms all together. Often the divorce judgment does not specify with clarity the award of the SBP and the Military Retired Pay Division Order should. But if it is a close call and the Military Retired Pay Order cannot be filed within 1-year from the date of judgment, do not delay serving the divorce judgment and applicable forms to make the required deadlines.


DFAS requires timely receipt of 1 of the 2 forms described above to provide the SBP to the former spouse. However, to ensure that there are no issues with the SBP award, if possible, we recommend serving both forms. The completion of the DD Form 2656-1 requires the member’s cooperation which is sometimes not possible to obtain. Failure to timely submit one of these forms within 1-year from the date of the divorce judgment may result in the loss of the SBP even if there is a state court order awarding the SBP if the Member dies or retires.

If SBP NOT Awarded in the Divorce Judgment

If the SBP was NOT awarded in the divorce judgment, but the Former Spouse should have been awarded the SBP, you still have the chance to award the SBP. There is a deadline for the Member to secure the SBP within 1-year from date of judgment.  So long as Member does not retire or die, you should be able to secure the SBP within 1-year of filing the Military Retired Pay Division Order. Depending on your case facts proceed as follows:

(1) Immediately draft and enter the Military Retired Pay Division Order with the SBP award and immediately submit to DFAS the Survivor Benefit Plan (SBP) Request For Deemed Election Form (DD Form 2656-10) signed by the Former Spouse (DD Form 2656-10) with a copy of the divorce judgment for implementation.

(2) If you have the Member’s cooperation also submit to DFAS the Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage (DD Form 2656-1) signed by the Member and Former Spouse (DD Form 2656-1).

(3) If you believe the Member will retire or die before you can prepare the Military Retired Pay Division Order and serve it on DFAS with the required forms, you may want to do one of the following:

(a) Modify the divorce judgment to award the SBP and serve at least 1 of the 2 forms described above on DFAS within 1-year from the date of divorce, if possible.

(b) Try to secure the SBP by serving the DD Form 2656-1 on DFAS with a copy of the divorce judgment. Have the Member follow up voluntarily to make sure the SBP is secured. Proceed to file and serve the Military Retired Pay Division Order with the SBP award and DD Form 2656-10 on DFAS as soon as possible.

Even with a state court order awarding the SBP, it may NOT be possible to secure the SBP depending on the facts of your case (1) if the SBP is not awarded in the divorce judgment or not timely awarded in the Military Retired Pay Division Order and the appropriate forms are not timely served on the DFAS especially if the Member does not cooperate in ensuring the SBP. If you believe there will be problems meeting the 1-year deadlines, contact QDROCounsel Support to be referred to our network of experts to evaluate the situation.

What are the steps to secure the SBP if the member is NOT retired and it has been more than 1-year since the date of divorce?

If SBP Awarded in the Divorce Judgment

If the SBP was awarded in the divorce judgment, there is a deadline for the Member and/or Nonmember to secure the SBP within 1-year from date of divorce which may have been missed. But even if the deadline is missed, so long as the Member does not retire or die you should be able to secure the SBP within 1-year of filing the Military Retired Pay Division Order. To ensure the SBP is payable, immediately determine whether the SBP has already been secured with DFAS. Depending on your case facts proceed as follows:

(1) It may be that the SBP has already been secured by the parties. Find out if the Member or Former Spouse received a letter from DFAS that the SBP is secured for the Former Spouse with 1 of the 2 following forms submitted with the divorce judgment: (1) Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage (DD Form 2656-1) signed by the Member and Former Spouse or (2) Survivor Benefit Plan (SBP) Request For Deemed Election Form (DD Form 2656-10) signed by the Former Spouse.

(2) If you cannot confirm (1) above, immediately draft and enter the Military Retired Pay Division Order with the SBP award and immediately submit to DFAS the DD Form 2656-10 with a copy of the divorce judgment for implementation. If you have the Member’s cooperation also submit to DFAS the DD Form 2656-1.

(3) Follow up with DFAS until you receive confirmation of the SBP award for Former Spouse..


If there is time, it is always better to serve the military with the divorce judgment, the Military Retired Pay Division Order, and the applicable forms all together. Often the divorce judgment does not specify with clarity the award of the SBP and the Military Retired Pay Division Order should. But if more than 1-year has passed since the date of divorce and the Member has not retired or died, DO NOT DELAY serving the Military Retired Pay Division Order with the SBP award, the divorce judgment and applicable forms to make the required deadline.


DFAS requires timely receipt of 1 of the 2 forms described above to provide the SBP to the Former Spouse. However, to ensure that there are no issues with the SBP award, if possible, we recommend serving both forms. The completion of the DD Form 2656-1 requires the member’s cooperation which is sometimes not possible to obtain. Failure to timely submit one of these forms within 1-year from the date of the divorce judgment may result in the loss of the SBP even if there is a state court order awarding the SBP if the Member dies or retires.

If the SBP was NOT awarded in the divorce judgment but the Former Spouse should have been awarded the SBP, generally there is a deadline for the Member to secure the SBP within 1-year from date of divorce. However, if that has not happened, so long as Member does not retire or die, you should be able to secure the SBP. Depending on your case facts proceed as follows:

(1) Immediately draft and enter the Military Retired Pay Division Order with the SBP award and immediately submit to DFAS the Survivor Benefit Plan (SBP) Request For Deemed Election Form (DD Form 2656-10) signed by the Former Spouse (DD Form 2656-10) with a copy of the divorce judgment for implementation.  You must submit the DD Form 2656-10 when it has been more than 1-year since date of divorce and the Member has not retired or died.

(2) If you have the Member’s cooperation also submit to DFAS the Survivor Benefit Plan (SBP) Election Statement for Former Spouse Coverage (DD Form 2656-1) signed by the Member and Former Spouse (DD Form 2656-1).

(3) If you believe the Member will retire or die before you can prepare the Military Retired Pay Division Order and serve it on DFAS with the required forms, you may want to do one of the following:

(a) Modify the divorce judgment to award the SBP and serve the DD Form 2656-10 immediately.

(b) Try to secure the SBP by serving the DD Form 2656-1 on DFAS with a copy of the divorce judgment. Have the Member follow up voluntarily to make sure the SBP is secured. Proceed to file and serve the Military Retired Pay Division Order with the SBP award and DD Form 2656-10 on DFAS as soon as possible.

Even with a state court order awarding the SBP, it may not be possible to secure the SBP depending on the facts of your case (1) if the SBP is not awarded in the divorce judgment or not timely awarded in the Military Retired Pay Division Order and the appropriate forms are not timely served on the DFAS especially if the Member does not cooperate in ensuring the SBP. If you believe there will be problems meeting the 1-year deadlines, contact QDROCounsel Support to be referred to our network of experts to evaluate the situation.


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