Oklahoma Senate Bill 1887 USFSPA Changes

Oklahoma Senate Bill 1887 makes a proposal on computation of the division of military retirement pay, specifically using one (there are others) of the acceptable decree language stated by DFAS:

Unless otherwise agreed to by the parties, any division of an active duty military member’s retirement or retainer pay shall use the following language:

“The former spouse is awarded a percentage of the member’s disposable military retired pay, to be computed by multiplying fifty percent (50%) times a fraction, the numerator of which is ____x____ months of marriage during the member’s creditable military service, divided by the member’s total number of months of creditable military service.”

(SB 1887 includes comparable language for reservists.)

The Good about Oklahoma SB 1887 USFSPA Proposals

Here are some of the good things in Oklahoma SB 1887:

• Negotiation is Possible: The door is open. The proposed bill includes, “Unless otherwise agreed to by the parties…” so lawyers and judges still have the freedom to present, argue, and negotiate for alternative language.
• Formula Award: The suggested verbiage for the award of division of pay is a formula which means the soon-to-be former military spouse will receive all Cost of Living Adjustments (COLAs). However, to ensure there is no confusion, I recommend a separate line in the decree specifically awarding the former spouse all future COLAs.

Problems with Oklahoma Senate Bill 1887

The denominator used in the formula is the service member’s total years in service, which means the longer the service member stays in service, the further reduction in the monetary award to the former military spouse.

Sometimes an example makes the picture clearer.

Example: A spouse who divorces with 5 years service overlap will receive a higher percentage if the service member retires at 20 years than if the service member retires at 25 years.

• 50% X (5 years of marriage / 20 years in service) = 12.50% of retired pay
• 50% X (5 years of marriage / 25 years in service) = 10% of retired pay

If this was the only language in the decree, one might view it as fair because while the former spouse’s percentage is reduced by every year the service member remains in service, the retired pay amount might be correspondingly increasing by every year of added service.

My concern with the language of Senate Bill 1887 USFSPA proposal lies in the paragraph preceding the above paragraph’s suggested language for division of pay:

“If a state court determines that the disposable retired or retainer pay of a military member is marital property, the court shall award an amount consistent with the rank, pay grade, and time of service of the member at the date of filing of the petition or granting of the decree of dissolution of marriage.”

This implies that Oklahoma divorce decrees will require additional instructions to DFAS telling DFAS, – “Don’t use the retirement pay figure in place at retirement.”

Three concerns with Proposal of Oklahoma Senate Bill 1887

1. Discrepancy: First of all: The two dates conflict and will create confusion for DFAS. One sentence says use time of service of the member at the date of filing and the following verbiage says to use total number of months of creditable military service.
2. Date of Filing: Setting an award based on the date of filing is inequitable as it can take months and in some cases years to solve military divorce issues.

3. No Corresponding Adjustment: If you use the rank at date of divorce, this brings the unfairness of the denominator back into play, because there is no corresponding allowance for the decrease in the award which will occur as years go by.

Recommendation: Disapprove Oklahoma SB 1887

As written, Oklahoma Senate Bill 1887 should be disapproved or amended to delete all references to rank, pay grade, and time of service of the member at the date of filing of the petition or granting of the decree of dissolution of marriage.

View the Oklahoma Senate Bill 1887.

For more explanations on the various verbiage of awarding the division of military retired pay to a former military spouse, see Military Divorce Tips