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Military Retired Pay is a type of divisible retirement plan. Because ERISA does not govern it, it requires different orders than a standard QDRO – it requires a set of orders given through DFAS, with a number of additional forms to be submitted with it. Most important is the determination of whether the DFAS orders are for support or a property interest. The difference in checking the support v. property interest is large because support can terminate (when the children turn 18, by the death of either party, a party’s remarriage or if the Judge gives a new order). A property division means that the MRP is split into two separate property interests. Hugely important to your long-term future. The Spousal Benefit is equally important are requires planning and thought. 

Some new caselaw tells us that a Member’s MRP that is waived in exchange for later disability pay cannot be divided and the Court may not order the disabled member to pay extra for waived MRP. What that means is that the Court – your divorce decree and your orders – need to account for the fact that the nonmember spouse may lose a sizable chunk of their property right if MRP is later partially re-categorized as disability pay. You may not be able to even imagine it now, but at some later point in your career, losing a portion of your fixed income could come at a steep and unpredictable price. The documents must take this into account. 

Dividing MRP takes a little more work than the most basic QDRO and so we charge a little bit more for it: $750. We can turn these around in 7 business days, and so we offer the same money back guarantee, with the same caveat, that if you want to have pre-approved documents, we charge an extra $100 for paralegal time in negotiating with DFAS, and cannot guarantee any timeframe for delivery (because we are waiting on DFAS). Most of the same issues above still apply, and we keep the advocacy pricing the same even though the MRP division document is a little more costly. In other words, any advocacy document is $1,000, the basic QDRO is $500 and the DFAS document is $750. 

We will give you language to use in the divorce decree that will make the actual QDRO drafting simpler and give you more protection, perhaps “winning the QDRO.” We will also strategize with you about options: how can you position the QDRO (or COAP or DFAS order) to your best advantage?  

Nearly everyone just assumes a DRO is a “neutral” document that is written in technical language to divide an asset per the Court’s order. To some extent, it can be such a document, but there are many choices to make in drafting a DRO, including choices that may greatly benefit or harm you. If you treat a DRO as a neutral document, it will be neutral – but neutrality is not necessarily a synonym for “fair.” A neutral document may be deeply unfair to one side or the other. If you are contributing money to a Suvivor Benefit Annuity, for example, a neutral document that awards the SBA to your spouse without any corresponding contribution can cost you hundreds of thousands of dollars (or vice-versa). 

Very few family lawyers (and almost 0% of judges) ever think about the fact that a QDRO is not a neutral document; it is an advocacy document. There are advantages you can take in the drafting of the document such that when the divorce decree (court-ordered or agreed upon) requires the pension to be “equally divided,” the actual document can include language to (among other things) determine: 

1. whether the nonmember spouse’s community property share terminates or continues after the member’s death; 
2. whether the nonmember spouse’s community property share should be applied to any pre-retirement death benefits or continue from any benefits payable to the member’s beneficiary(ies); 
3. whether the nonmember spouse’s community property share will revert to the member, or will be paid to the nonmember spouse’s designated beneficiary(ies); and/or 
4. whether the nonmember spouse’s community property share should be applied to any retired lump-sum death benefits. 

When you are in the position of being the one to prepare the QDRO, 95% of the time the other party has no idea how to read it or has any idea of what it could even possibly say. By controlling what is in the language of the document, you control the answers to the items to be determined above.  You may not be able to control whether or not you get more than 50% (or give up less than 50%), but you have a great deal of control over the other determinations. For example, if the nonmember spouse predeceases the member spouse, it is possible that the retirement benefits would revert to the member spouse. It is also possible that, if the member spouse predeceases the nonmember spouse, the nonmember spouse would get a lump sum payment of the death benefit. 

In any event, the standard QDRO you get from an online source is a pretty good document. You pay $500 for that document (which you can also get from us for $500) and it’s a non-advocacy, neutral document that divides the retirement benefit. The drafting company may or may not (usually does not) have a lawyer in the office. This is further along than the majority of people in a divorce ever get. Just getting the benefit divided is a major step. And it is probably the best $500 you will have spent in your entire divorce. In my home jurisdiction, just filing for divorce costs $435. 

However, you can do better than what you get for $500. It is also standard to have the parties split the cost of preparing the QDRO and jointly engaging the expert. That is fine, but when I advise my divorce clients, I always advise them to pay the entire QDRO cost upfront and engage the QDRO preparer directly and solely. Then the document can become their advocacy piece. After we have drafted the QDRO to your satisfaction (and benefit), you present it to your ex-spouse and ask them to reimburse you for one-half of the cost. 

Engage us to draft an advocacy piece for you. It will be more than $500 (although not substantially more – we advise that you spend some time consulting with us for $500 per consultation and have the document drafted for $500). If the extra $500 per consultation buys you an insurance policy such that if your spouse predeceases you, you either get a lump-sum distribution of the balance of the death benefit from the plan or you get your spouse’s share of the pension benefits, this might be the absolute best deal in divorce law. You are basically buying a hundreds of thousands of dollars life insurance policy for a one-time payment of $500. Although we may not be able to get that agreement from your spouse, you will be armed with several different strategies to use the DRO to best position yourself in the event of your ex-spouse’s death. 

I understand that hiring someone on the internet for around $1,000 is a bit of a strange proposition. Even then, for $1,000, I have to really manage my time or else I will not be able to give each case personalized attention. So, you hire me for $1,000 to draft an advocacy piece for you, without meeting me in person or possibly talking to me on the phone, and I am going to draft this insurance policy for you. 

On the other hand, you do this when you buy car, boat, homeowners’ and term life insurance. Or you may have met someone (an agent or broker) who sells you the policy and answers some questions, but you spend much more than $1,000 on buying their policy and, if you are like most people, you barely understand even a small portion of it. Don’t even get me started on health insurance, where it’s safe to say that approximately 100% of people do not understand what they are buying.

What we do is provide a detailed intake sheet so that we can get certain information from you. I make myself available via email for all questions not answered by the Blog – and as I respond to emails from client, I add the question and my response to it to the Blog (confidentially of course) in order to grow the body of knowledge that can be shared by everyone. Then, we can book a call (normally 30-40 minutes – most QDRO questions do not take a full hour). 

The other thing I do to put you at ease is the following: I guarantee that you get your QDRO advocacy document back within 7 business days or we give you the QDRO and your money back. Because pension plan administrators all take different amounts of time to analyze and approve a QDRO, the QDRO we send you within 7 days will not have “pre-approval” from the plan administrator because they pre-approve on a case-by-case basis. I am willing to give you the 7-day money back guarantee to ease your worry about spending $1,000 on a person you hire on the internet without meeting them, but really what you should be wanting is to have the document pre-approved, so that you can be certain the administrator has accepted it before you give it to your ex-spouse to review and sign and then give it to the Judge to make it an order. 

To get pre-approval from the administrator, we charge another $100. This means that we send it to the Plan Administrator and follow up with them until the QDRO has been fully approved. Obviously, we cannot offer a 7-day guarantee on this service because most Plan Administrators typically take around 4 weeks to provide us with pre-approval. 

There is another issue to consider, and I know this is getting long, but I want to give you everything I can upfront so that you have as much information as possible when you make your decision. I will provide you with options that increase your advantage. While the Plan Administrator is not supposed to do any review for content (or advocacy or advantage of one party or another), they sometimes do. The more (I prefer “assertive” to “aggressive”, but I will let you pick the term you prefer), the more likely the Plan Administrator will flag it and not approve it upfront. The great majority of the time, the Plan Administrator simply accepts our plans without question or comment, but there have been times when we must advocate for our position to make sure we have given you the best advantage possible. Thus, although you may find a $500 QDRO plan online (like you can find here as well), the real action is in developing an advocacy document that you can use to give yourself an advantage. We will draft the document to give you every advantage. 

Back to the $500 QDRO for a moment. I feel like maybe you will think I’ve been trying to talk you out of it or that I am encouraging you to “pull a fast one” on your spouse. I am not. The $500 QDRO is meant to be a “neutral” document with a shared cost between ex-spouses who are working together. I will ask you, as part of the questionnaire about the issues raised above, and if you agree, I will put them in and if you do not, the document will be silent or default to whatever the Plan suggests as its language. There is nothing wrong with this – like I said above, you will be well ahead of most divorced couples. The advocacy document is just another way of doing it. Not better or worse from a moral standpoint, but better for you from a practical standpoint. 

To divide military retired pay in a divorce, the required court order is a:

Military Retired Pay Division Order

—or more formally—

Final Divorce Decree or Property Settlement Agreement that meets the requirements of the Uniformed Services Former Spouses’ Protection Act (USFSPA)

Why Is This Necessary?

The Uniformed Services Former Spouses’ Protection Act (USFSPA) (10 U.S.C. § 1408) is the federal law that authorizes state courts to treat military retired pay as marital property and allows the Defense Finance and Accounting Service (DFAS) to make direct payments to a former spouse if certain conditions are met.

What Kind of Order Is Required?

The order must:

• Be issued by a state court (not federal).
• Be part of a final decree of divorce, legal separation, annulment, or a court-ordered property settlement.
• Clearly state:
  • The military member’s name and Social Security number.
  • The former spouse’s name and Social Security number.
  • The exact formula, percentage, fixed amount, or hypothetical retired pay the former spouse is awarded.

Key Requirements for DFAS to Make Direct Payments:

1. 10/10 Rule:
   DFAS will only make direct monthly payments to a former spouse if:
   • The marriage lasted at least 10 years, and
   • The service member completed at least 10 years of creditable military service during the marriage.

If the 10/10 rule is not met, the former spouse may still be entitled to a portion, but the payment must come directly from the retiree—not DFAS.

1. Proper Wording:
   DFAS is very strict about how the order is written. For example, vague language like “the former spouse shall receive her share” won’t work. It must specify a clear amount, percentage, or formula.
2. Certified Copy:
   DFAS must receive a certified copy of the court order.

Other Notes:

• Survivor Benefit Plan (SBP) coverage is not automatic and must be specifically awarded by the court and properly elected by the service member (or deemed election by the court).
• Disability pay (VA compensation) is not divisible as marital property under federal law, though it can impact the total amount of divisible retired pay.

Summary

If you’re dealing with a military divorce, it’s strongly advised to consult an attorney familiar with military divorce lawand DFAS regulations, as the technical details are critical.

For many military families, particularly career military families, there is both a Military Retired Pay and a DoD pension, which is more like FERS. When a career military spouse leaves military service and, as many do, returns to the civilian sector, often supporting a similar or the same people as they supported while in their military service, the main difference may simply be that they are no longer accruing service credits for the Military Retired Pay and are now accruing credits toward the DoD pension. Then, you would need both a DFAS order and a COAP to properly divide the pensions. There may also be a TSP that needs dividing. TSPs are also not covered by ERISA and therefore require another separate COAP. 

All of this is important because I want you to recognize that there are many different types of DROs that may be used to divide your retirement assets. It is so common that judges and lawyers just say “divide by the time rule” and call it a day, that I cringe every time I hear a judge say those words. 

These retirement accounts, annuities and pensions are usually the most valuable thing a public sector servant owns, particularly if they have had a long career working at government salary. This is not to say government salaries are not excellent sources of middle class income, but one of the great selling points of a career in civil service is the retirement benefits. These benefits are divisible in a divorce. Dividing them requires precision and stick-to-itiveness. And it almost always requires the help of a knowledgeable attorney. 

Do not trust the division of these assets to anyone not qualified to write the documents. 

I understand that at the end of the divorce, you are almost assuredly exhausted and running on financial fumes. But putting off the effectuation of your judgment for a thousand or a couple of thousand dollars places an asset that may be worth a million dollars completely at risk. 

The Federal government is not bound by state government court decisions unless the state court follows very strict criteria for the COAP. Done incorrectly, a new spouse or a former spouse could take 100% of the FERS benefit, even though you have a court-order in place awarding you one-half the pension by “time rule.” That is why, it is so incredibly important to have an expert assist you with drafting DROs particularly for FERS and Military Retirement Pay.

The Federal Employees Retirement System (FERS) uses a Court Order Acceptable for Processing (COAP) instead of a Qualified Domestic Relations Order (QDRO) because FERS is a federal government retirement system, not a private-sector plan.

Here’s a clear breakdown of the distinction:

What is a QDRO?

• A Qualified Domestic Relations Order (QDRO) is used to divide private-sector retirement plans governed by the Employee Retirement Income Security Act of 1974 (ERISA).
• QDROs apply to private pension plans and 401(k)s.
• They are issued under state domestic relations law but must be qualified by the plan administrator according to ERISA standards.

Why Doesn’t FERS Use QDROs?

Because:

1. FERS is a federal system, and federal retirement plans are not governed by ERISA.
2. Therefore, QDROs do not apply to FERS or other federal retirement programs.
3. The federal government created its own system to recognize and implement divorce-related benefit divisions: the COAP.

What is a COAP?

A Court Order Acceptable for Processing is:

• Specific to federal retirement plans, like FERS and CSRS (Civil Service Retirement System).
• Administered by the Office of Personnel Management (OPM).
• Required to divide FERS annuity payments, survivor benefits, or refunds of contributions.

How Is TSP Handled?

While the FERS annuity requires a COAP, the Thrift Savings Plan (TSP)—which is a separate retirement savings account—requires its own type of order called a:

• Retirement Benefits Court Order (RBCO)

Like a QDRO, the RBCO must meet specific federal criteria but still is not a QDRO, because TSP is also a federal plan and not covered by ERISA.

The Federal pension scheme is so strict that doing this wrong can cost you your entire interest in the pension. We all learned recently, during the DOGE cuts, that 2 million Federal civil servants are contributing to FERS and many more contributing to TSPs. 

A Court Order Acceptable for Processing (COAP) is a specific type of legal document required by the U.S. Office of Personnel Management (OPM) to divide a Federal Employees Retirement System (FERS) account—such as retirement annuity or Thrift Savings Plan (TSP) benefits—due to divorce, legal separation, or annulment.

These documents make the division of the asset a tax-free transfer incident to a dissolution of marriage. That is not so say that you can withdraw cash tax-free – the money is still pre-tax. But you can roll the money into a similar type of pre-tax retirement account without any taxes or penalties with the issuance of a COAP (or QDRO in the context of an ERISA-governed plan). 

Why is a COAP Required?

When a federal employee (including member of the US Military) goes through a divorce, their retirement benefits (including FERS annuity and TSP) may be considered marital property. To divide those benefits, a court must issue an order. However, not just any divorce decree or settlement agreement will be recognized by OPM—it must meet their specific requirements and thus be “acceptable for processing”.

Without a COAP:

• • OPM will not divide or pay any portion of a FERS annuity to a former spouse.

• The former spouse may lose the right to claim their share of the retirement benefits.

Read that last sentence again, OUT LOUD. It is so important to follow the procedures for a COAP because if you get it wrong, you may lose your right to claim your share of the retirement benefits. If your spouse dies after divorce and before the COAP, you will almost assuredly lose your interest in the benefits. If your spouse remarries and you do not have a COAP, you can lose your share of the benefits. 

What Makes a COAP “Acceptable for Processing”?

A valid COAP must:

• Be a court-issued document (divorce decree or separate order relating to the divorce).
• Clearly identify the federal employee and the former spouse.
• Specify exactly what portion of the FERS benefit (annuity or survivor benefits) the former spouse is to receive.
• Be clear and unambiguous in its instructions to OPM.
• Comply with federal laws and OPM regulations, which often differ from state laws.

Types of Benefits a COAP Can Divide

1. FERS Annuity – The monthly retirement payment.
2. Survivor Benefits – A portion of the retirement benefits that continue to a former spouse if the retiree dies.
3. Thrift Savings Plan (TSP) – Separate from the FERS annuity and requires a different kind of order (called a Retirement Benefits Court Order, or RBCO).

Summary

A Court Order Acceptable for Processing is:

• Required for OPM to legally divide FERS retirement benefits.
• Ensures the former spouse gets their court-awarded share.
• Must meet strict federal standards, not just state law requirements.

If you’re involved in a divorce where FERS or TSP benefits are at stake, it’s essential to have an attorney familiar with federal retirement law prepare or review the COAP.

I wanted to develop a site and a process that would help people, many of whom did not even have lawyers in their divorce, who still want to make sure they have properly divided their retirement accounts. In fact, our service may be absolutely best for people who didn’t have lawyers during their divorce but need one to help them draft the retirement division orders. I tell potential litigation clients that, if they only have finite resources (which is true of virtually everyone), they should spend their money on a lawyer to draft QDROs in their favor rather than on the actual litigation, since in so many jurisdictions, the only option with a valuable asset like a retirement plan is to “divide it by the time rule” (more on the “time rule” and other methods of division in the FAQ) because neither party has any resource they can use to buy out the other party’s share of the retirement asset. 

Take my drywall subcontractor client with the $800,000 union pension and the $600,000 worth of other assets. The total value of the estate was $1.4 million, meaning each should get $700,000. But there is no really good way to achieve that. Add in the fact that he was the license holder so his wife could not take the business in the divorce, meaning it was going to need to be awarded to him at value, and we had a real problem. The only real option is to divide the retirement plan/pension/401(k) by “time rule” and then divide the rest of the assets separately. That is exactly what we had to do, with the wife taking half the pension, the husband taking the business and the wife taking the house and the majority of the other assets. That was the only way to get to a reasonably fair division of assets. 

With that in mind, if the family has a pension/defined benefit plan/deferred compensation plan/401(k) or other ERISA-backed or federal government-backed retirement plan, most likely you are going to need some sort of Domestic Relations Order (let’s call them “DROs” here as opposed to “qualified” Domestic Relations Order “Quadros,” which are really a sub-species of DROs). 

The DRO is basically a simple document in concept. It tells the plan administrator how to divide the plan assets between spouses. This is not really rocket science – it’s normally done by “time rule.” This is why we can draft one for you for $500. The problem is not the QDRO itself; the issue is what goes in it – this is an advocacy document that gets treated like a “neutral document.” 

I’ve mentioned the “time rule” a few times, which, in short, says that the community property share of the asset is based on the following fraction: 

number of months of marriage while contributing to the plan
number of total months contributing to the plan

This is the “time rule” for determining the community property share of the pension. It basically says, in English, that everything you contribute to the pension during the marriage belongs to the community and everything you contribute to the pension before marriage or after separation (or the final divorce decree in the case of federal plans) is separate property. So, in a 10-year (120-month) marriage where the spouse has worked for the same company for 20 years (240 months), the community has a 120/240 interest in the pension or 50%, the other 50% being separate property. That means the non-employee spouse has a 25% interest in the plan and the employee spouse has a 75% interest in the plan. If the employee spouse continues to contribute to the pension, the number of months in the bottom will grow. After an additional 120 months, the fraction will be 120/360 or 33% to the community and 67% to the employee. The percentage interest decreases, but the total amount of money/benefit/deferred compensation increases. That is why, when you draft a DRO, you have to be careful not to include a dollar amount, since the amounts will likely increase over time. 

This may not seem fair exactly, and it’s not necessarily fair, but it’s a rough approximation – the percentage ownership goes down over time, but the total amount goes up. It’s having a smaller percentage of a larger number. It actually works just fine for defined benefit plans and plans where there are “credits” for time of service rather than dollar contributions to the plan. 

A good divorce lawyer should be thinking about the retirement assets during the divorce, and particularly at trial and/or in the drafting of the final decree. The language of the decree itself can drastically favor or disfavor you depending on how it is written. Too few attorneys actually know this, and even fewer judges ever think about it, which means, with a very flippant turn of phrase (written or oral), the entire dynamic of the divorce decree can change regarding your most valuable asset. 

Having counsel who really understands the importance of the language in a DRO is extremely important to your future financial well-being. 

DROs are orders given by the Court impacting the dissolution of a domestic relationship. “Qualified” DROs are orders for plans that are “qualified” under ERISA, which governs the majority of state and local pensions, union pensions, 401(k) plans, usually not IRAs (but not 100% out of the question), and deferred compensation plans. ERISA, however, does not govern FERS or military retirement pay and, as a result, the DRO needed to divide FERS or military retirement pay is different than the one we use to divide so-called “qualified plans.”

If you did a Google search to find me, you will no doubt have read a dozen or so other sites regarding the types of orders you need to properly divide retirement assets. The most common order is called a Qualified Domestic Relations Order (QDRO). Lawyers get caught up in the lingo, calling them “Quadros,” just throwing the word around like anyone should know what it means and so many clients and potential clients afraid to ask more detailed questions about it because it rolls off the tongue so easily that they think maybe everyone knows something about them, but Domestic Relations Orders (qualified or not) are actually a really complicated area of practice that almost no practicing trial lawyer truly understands. There are many different types of Domestic Relations Orders, but I do not want to get bogged down in this section trying to distinguish between all of them – I go into much more detail about QDROs and other types of orders in the FAQ on this site so you can read about the finer details without being overwhelmed at this stage. 

In short, a Domestic Relations Order (a DRO) is an order made by a court to divide assets, in this case, a retirement asset. These orders must be very specific in their terms, so that the administrators who administer pension/retirement plans know exactly how to divide the assets, what to do in the case of a second marriage, and what to do if the plan member or spouse dies. Because a defined benefit plan of any sort does not have an exact value at the date of most Matrimonial Judgments (because the plan member will continue working or because there is no way to know how long they will live, etc.), we rely on actuarial tables that insurance companies use to determine the cost of insurance. Most of these plans are a type of annuity, the value of which depends on how long a person works and their age when they retire. If a 50-year-old woman with 25 years of contribution to her pension gets divorced, she may continue working another 15 years, or she may move to Italy to tend to an olive orchard. Since we don’t know this at the time of division, most DROs say something like “50% of the community property interest in the defined benefit plan.” This language, by the way, is not sufficient to draft a QDRO, but it might be sufficient for a DRO. Since most judges and lawyers think in terms of the “50% of” language, the people who draft the QDRO or other order have to be more specific in how they prepare the orders.  

This site (and my service) is designed to help you get through the division of retirement assets without a lot of additional stress. Too often, you go through a divorce, the divorce decree or judgment says “divide the retirement assets equally,” and then nothing ever happens again. The Judge, in a contested divorce, may also sort of waive her hands dismissively and say “divide the pension equally (or by “the time rule”)”. At retirement, the ex-spouse looks at the decree and tries to figure out how to get the retirement assets into their name, only to find out that it is far too late in the process to do it correctly – worse, the interest in the pension may be lost when the ex-husband (or wife) dies unexpectedly before the QDRO can be entered and there is no “spousal benefit” protection plan in place. 

If you are reading this now as you are in the middle of a divorce or just after your divorce has finalized (your lawyer saying: “I don’t do QDROs, hire an expert and they will take care of it”), you are ahead of the game.