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Decree of Dissolution & QDRO Proportional Share


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I’m hoping for some guidance. If Divorce Decree states 3/22nds of military retirement for ex spouse and 29/22nds for military retiree, no dollar amount and no QDRO. Should ex spouse receive COLAs too? Example: divorced 15 years and had been paying out, same amount of retirement pension, (at beginning of divorce) until now. Should I have been adding the COLAs I have received to ex spouses monthly payment too?

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I don't know if there is anything special about the military's QDROs, but generally a QDRO would contain language related to future COLA's.  In my experience, COLA's are typically provided to the AP, but not always.  

The material provided and the opinions expressed in this post are for general informational purposes only and should not be used or relied upon as the basis for any action or inaction. You should obtain appropriate tax, legal, or other professional advice.

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The last sentence of the original post implies that @LMR is paying some fraction of his retirement benefit directly to his ex-spouse.  Is that accurate?  If so, it is NOT what a QDRO (or other-named court order) is intended to do.  But the post also says, "no QDRO", so perhaps the divorce decree and/or property settlement does expect such direct payment.  If so, the comment above from @Effen makes sense: it is logical to assume the court meant COLAs to be included (ie, that's exactly why the court included a fraction rather than a dollar amount).

I'm a retirement actuary. Nothing about my comments is intended or should be construed as investment, tax, legal or accounting advice. Occasionally, but not all the time, it might be reasonable to interpret my comments as actuarial or consulting advice.

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@effen and @david rigby good afternoon! In the decree of dissolution and the findings of fact specifically state 3/22nds of the retirement, ex spouse is to receive. There was never a QDRO filed when we got divorced in 2007.  My question, since the payment has been going directly to the ex spouse, every month since 2007, out of my personal account and not directly from military, should I have been adding any COLAs, over these past 17 years? There was not a dollar amount listed in the decree or F of F only a proportional share for each. Me 19/22nds and ex 3/22nds. 

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LMR, it sounds as if you're paying support in the form of an allotment. It is important to know whether your obligation is for property or for support. If your divorce decree only ordered you to share retirement benefits as property, then you should have pursued an MRPDO (military retired pay division order, which is the military version of a QDRO). This is because when paying a former spouse directly from retired pay by allotment, you are paying monies on which you've already paid tax, but with paying through an MRPDO, the DFAS will pay a former spouse directly, and the former spouse will have the tax liability rather than you.

Examine your divorce decree to see whether the money you were ordered to pay was characterized as support or as property. If property, then you need an MRPDO, but if support then your allotment is proper. When the DFAS pays a portion of retired pay as property and the order is for a percentage, it will automatically include COLAs, but if the order is for a dollar amount, then DFAS will not add COLAs.

If your decree is silent on the property vs support characterization (rare) but indicates COLAs should apply, then a reasonable interpretation is for property division rather than support.

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14 hours ago, blguest said:

LMR, it sounds as if you're paying support in the form of an allotment. It is important to know whether your obligation is for property or for support. If your divorce decree only ordered you to share retirement benefits as property, then you should have pursued an MRPDO (military retired pay division order, which is the military version of a QDRO). This is because when paying a former spouse directly from retired pay by allotment, you are paying monies on which you've already paid tax, but with paying through an MRPDO, the DFAS will pay a former spouse directly, and the former spouse will have the tax liability rather than you.

Examine your divorce decree to see whether the money you were ordered to pay was characterized as support or as property. If property, then you need an MRPDO, but if support then your allotment is proper. When the DFAS pays a portion of retired pay as property and the order is for a percentage, it will automatically include COLAs, but if the order is for a dollar amount, then DFAS will not add COLAs.

If your decree is silent on the property vs support characterization (rare) but indicates COLAs should apply, then a reasonable interpretation is for property division rather than support.

The decree of dissolution lists the proportional share under the property to be awarded to ex - 3/22nds of retirement. From what I’m reading from your response, since it is a proportional share, it is listed under property to be awarded and that it lists a proportional share and NOT a dollar amount, the ex should have been receiving any proportional share of the COLAs too? 

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I’m hoping for some guidance. If Divorce Decree states 3/22nds of military retirement for ex spouse and 29/22nds for military retiree, I assume the denominator of these two fractionis is 32, not 22. no dollar amount and no QDRO. Military retirement benefits not enforced by a QDRO.  They are enforced by a Military Retired Pay Division Order ("MRPDO") that used to be called a Constituted Pension Order ("CPO").  If no such Order was entered, DFAS will not make any payments to your ex-.  You are making such payments voluntarily and that's fine since the source of the obligation is the Divorce Decree.  The MRPDO is just an enforcement tool and if such an Order has been entered DFAS would have automatically added COLAs.  Should ex spouse receive COLAs too? In most states COLAs are considered to be marital property.  But beyond that, if she is to receive 3/32nds of your Retired Pay and your Retired Pay increases because you have received a COLA, then the amount she will recieve will increase proportionally.  DoD 7000.14-R Financial Management Regulation Volume 7B, Chapter 1, Section 2.7 provides: "Both retired pay and survivor annuities are adjusted annually by the change in the Consumer Price Index."  Figure 29-1, the Military Retired Pay Division Order states: "Please note that all awards expressed as a percentage of disposable retired pay, including hypothetical awards, will automatically include a proportionate share of the member's COLA regardless of any language in a court order to the contrary."  The fraction 3/32nds is 9.375%.  So this language applies to you.  You can find historical COLAs in the attached DoD regulations.  Example: divorced 15 years and had been paying out, same amount of retirement pension, (at beginning of divorce) until now. Should I have been adding the COLAs I have received to ex spouses monthly payment too? 

DoD FMR Volume07b- 01-31-24.pdf

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42 minutes ago, fmsinc said:

I’m hoping for some guidance. If Divorce Decree states 3/22nds of military retirement for ex spouse and 29/22nds for military retiree, I assume the denominator of these two fractionis is 32, not 22. no dollar amount and no QDRO. Military retirement benefits not enforced by a QDRO.  They are enforced by a Military Retired Pay Division Order ("MRPDO") that used to be called a Constituted Pension Order ("CPO").  If no such Order was entered, DFAS will not make any payments to your ex-.  You are making such payments voluntarily and that's fine since the source of the obligation is the Divorce Decree.  The MRPDO is just an enforcement tool and if such an Order has been entered DFAS would have automatically added COLAs.  Should ex spouse receive COLAs too? In most states COLAs are considered to be marital property.  But beyond that, if she is to receive 3/32nds of your Retired Pay and your Retired Pay increases because you have received a COLA, then the amount she will recieve will increase proportionally.  DoD 7000.14-R Financial Management Regulation Volume 7B, Chapter 1, Section 2.7 provides: "Both retired pay and survivor annuities are adjusted annually by the change in the Consumer Price Index."  Figure 29-1, the Military Retired Pay Division Order states: "Please note that all awards expressed as a percentage of disposable retired pay, including hypothetical awards, will automatically include a proportionate share of the member's COLA regardless of any language in a court order to the contrary."  The fraction 3/32nds is 9.375%.  So this language applies to you.  You can find historical COLAs in the attached DoD regulations.  Example: divorced 15 years and had been paying out, same amount of retirement pension, (at beginning of divorce) until now. Should I have been adding the COLAs I have received to ex spouses monthly payment too? 

DoD FMR Volume07b- 01-31-24.pdf 4.23 MB · 1 download

Thank you for the information!! The porportional shares are 3/22 & 19/22. I had a typo. I appreciate all of the assistance. I just want to make sure I’m doing the right thing. 

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