Military Divorce: The Submission Process

By Mark Sullivan and Kris Hilscher, AAML

Jake Green and his lawyer have just returned from a court hearing on divorce and property settlement. They spent the last 15 minutes on a “debriefing” session, in which Jake’s lawyer explained the “10/10 rule” in military pension division and why it’s important for the retiree to attain at least 10 years of marriage overlapping 10 years of service toward retirement in order to get payments from the retired pay center to the former spouse. Jake figures he’s about finished and is standing up to head toward the door. Let’s listen in on their conversation and see if there’s something that can be learned…

Jake: Well, I guess that wraps it up. I’ll stop by accounting to review my final statement and pay my bill, so we can close this out.

Lawyer: Whoa, Jake – it’s not over yet. We still need to deal with sending off the paperwork.

Jake: Paperwork?

Lawyer: Yes – you know the old saying, “The job’s not finished till the paperwork is done.”

Jake: I thought that my ex was supposed to do that! After all, she wants a piece of my pension. Another old saying might be, “The monkey’s on her back, not mine.”

Lawyer: Well, we could wait for her to do the paper submissions. But what if she drags her feet and doesn’t send the papers to the retired pay center[1] for another six or ten months? That means no tax adjustment for you during that period.

Jake: You mean the tax deduction for money I’m paying to her? I need that to start right away … if not sooner.

Lawyer: If we leave it up to her, she might not act quickly, and every day which passes is another day lost. What if she intentionally dragged her feet in sending the documents to the retired pay center?

Jake: We’ll have to get aggressive in stopping that!

Lawyer: I didn’t say she’ll do that. I was just illustrating why it’s a good idea for us to do the submissions, not wait until she gets around to it. It’s your tax deduction (actually, an “exclusion from income”) that’s at stake.

Jake: You’re right. We need to seize the initiative. Let’s push forward and send in the papers – what do I need to get you? Do we have to send the retired pay center a copy of the marriage certificate, so they’ll be sure there’s 10/10 compliance?

Lawyer: No, we don’t need that. It’s okay if we just state correctly and truthfully in the court order that there’s been at least 10 years of marriage concurrent with 10 years of military service creditable toward retirement.

Jake: So what are the papers that need to be sent off, and how do we send them?

Lawyer: The “papers” involved are two court records and three forms. The two court records are, of course, your divorce decree and your consent order for pension division. In other cases, it might be the divorce decree and a property settlement agreement which is incorporated into the decree of divorce. We have to have certified copies of these, and our office will take care of that.

Jake: Fine. What are the three forms and how soon can I sign them?

Lawyer: That’s just it, Jake – you don’t sign them, your ex-wife does!

Jake: But what if she drags her feet?

Lawyer: She can’t. I already got them signed! I talked to the other attorney before court, told her that I was bringing the three forms with me and that she needed to get your ex to sign them before we would sign the pension division order. I’ve got them right here in my briefcase.

Jake: What are they?

Lawyer: The first is DD Form 2293, which is the request for division of military retired pay. The second is DFAS-CL Form 1059, which is used in those cases where the Defense Finance and Accounting Service, or DFAS, is the retired pay center, as it is in your case. The form is for direct payment by DFAS to the ex-wife’s bank account. Also required is a voided check for that bank account.

Jake: And the third form?

Lawyer: That’s Treasury Form W-4P, and it’s used for tax withholding. While the payments to your ex-wife are excluded from your income when made through the retired pay center, they are taxable income for her.

Jake: So what do you with this bundle of papers?

Lawyer: We’ll prepare a cover letter from my law firm and then we’ll send the papers to DFAS in two separate transmissions, just to make sure that it’s received. Ever since COVID-19, DFAS has been requesting that papers be submitted by fax and upload, not through the U.S. Postal Service.

Jake: I get it, but what do you mean by upload?

Lawyer: We go to the “askDFAS” portal at the DFAS website, and we use the Internet to send the two court records, three forms and our cover letter to DFAS that way. When the documents are received, we get a “work ticket” which serves as our receipt.

Jake: How long does it take for the agency to process the papers?

Lawyer: By law, the retired pay center has up to 90 days to implement an acceptable court order, and that 90-day period starts at the date retired pay starts or the date of receipt of the order, whichever is later.[2]

Jake: That means that I have to make the payments in the meantime, right?

Lawyer: Not in this case. I wrote into the pension order a special clause that gets you off the hook until DFAS begins payments to your ex-wife. I call it my “3-month vacation” clause. It means you have a break till about 90 days from now.

Jake: What’s it say?

Lawyer: “Payments to the Former Spouse begin when DFAS has accepted this order and initiates the direct deposit to the designated bank account of the Former Spouse.”

Jake: Great. I really appreciate the “extra touch.” Now I’m really sure that we’re finished. I’ll stop to see your secretary and pay my final bill. 

Lawyer: Yes, we’re ready to close this out. The last items you’ll receive are a letter from the retired pay center confirming that your retired pay will be debited for the portion of the pension which will be going to your former spouse, and a changed RAS, or Retiree Account Statement, which will show the amount paid out to your ex and a reduced amount remaining for you.

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[1] Pension division for the Army, Navy, Air Force, Space Force and Marine Corps is handled by the Cleveland office of the Defense Finance and Accounting Service (DFAS). It is administered for the Coast Guard and the commissioned corps of the Public Health Service and of the National Oceanic and Atmospheric Administration by the Coast Guard Pay and Personnel Center in Topeka, Kansas.

[2] 10 U.S.C. § 1408 (d)(1).

Messrs. Sullivan and Hilscher practice family law in Raleigh, N.C. at Sullivan & Hilscher Family Law. Both are Board-Certified Specialists in Family Law and Fellows of the American Academy of Matrimonial Lawyers. Mr. Sullivan is a retired Army Reserve JAG colonel.