2017 NDAA a Year Later: Frozen Benefit Rule NOT

Introduction

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Open Letter to Mark Sullivan and Mary Vidas

11 December 2017
Mark Sullivan, 5511 Capital Center Dr., Ste 320, Raleigh, NC 27606
Mary Vidas, 130 N. 18th St, Philadelphia, PA 19103

Mark,

It's been a year since the NDAA 2017 law came into effect! I came across your 8-page un-dated document titled, “Military Pension Division: The Frozen Benefit Rule” discussing NDAA 2017 military retirements, which is published by the ABA (local copy). A simple Google search of "Frozen Benefit Rule" shows nine or more documents, so it seems your prolific writing continues.

We’ve corresponded several times, including emails with Mary Vidas, who chairs the Family Law Section of the ABA and continues to publish your material. I'm not sure why Mary and the ABA (in a neutral place of educating other attorneys accurately) choose to publish only your material which seems biased against military members and factually confused about how the mathematics work.

However, given that situation, I would love to help you through the math that, even after a year, seems to confuse you. I assume you're a great attorney and I know many people trust you with professional counsel. I thought I might again reach out and try to help you with the math.

It might be insightful to create a table comparing what you wrote on the left, and other observations on the right. An interactive conversation might really help and I would welcome your phone call.

Mark Sullivan Wrote and ABA Published	Observations
1. “Instead of allowing the states to decide how to divide military retired pay and what formula or methodology to use, Congress imposed a single uniform method...”	Congress engaged decades ago when they authored the USFSPA, when they overrode a Supreme Court decision mandating that division can be done in every state. THAT it can be done is a much bigger imposition than HOW it is done! You show no indignation about the original USFSPA law, so your hypocrisy witnesses against you.
2. “Congress imposed a ... fictional scenario in which the military member retires on the day that the pension division order is filed.”	Nothing is imposed about when a member retires, fictionally or not. Instead, the method imposes a uniform recognition that spousal contribution ceases upon divorce and therefore the marital asset stops growing (in constant year dollars) upon divorce. Do you think a marital asset should continue growing (in constant year dollars) after divorce?!
3. “The only adjustment will be cost-of-living adjustments that occur under 10 U.S.C. § 1401a (b) between the time of the court order and the time of retirement.”	Because NDAA2017 is a percentage based method, you know that 1401a (b) COLA adjustments happen automatically for all times after divorce up to actual retirement date, AND for all payments beyond. Over and over you publish calling this a “fixed method” and that is untrue. You've been corrected many times on this issue, so one must wonder why you continue.
4. “ ‘Frozen benefit division,” is also known as a hypothetical clause at the retired pay centers.”	Every time you say “fixed benefit” or “frozen benefit” you mislead attorneys that trust you. I challenge you to find anything about the payments that are fixed or frozen except the percentage. Read DoD 7000.14-R 290601(C) "A retired pay award expressed as percentage will automatically receive a proportionate share of the member’s cost-of-living adjustments, while one expressed as a fixed amount will not." The Hypothetical Method generates a PERCENTAGE, per DoD 7000.14-R 290608(H). You know it is NOT a DFAS fixed benefit method, so you should stop misleading people.
5. “It is the most difficult to draft of the pension division clauses available.”	The formula submitted to DFAS is a simple time-coverture value, as attorneys have done for decades. The 2nd coverture fraction (rank and longevity) is calculated automatically by DFAS. Using your own sarcastic words, “How hard can that be for you?”
6. “Over 90% of the hypothetical orders we receive now are ambiguously written and consequently rejected.” “Due to the difficulty of doing such orders…”	This past problem is eliminated by the standardized NDAA 2017 method, so why do you complain? Under NDAA 2107, no attorney need ever again create a hypothetical order -- just use the template and give DFAS the numbers they ask for. Your words are a red herring from history.
7. “[NDAA 2017 will cause] rivers of rejection letters flowing back to attorneys”	You’re good at flowery manipulative language, similar to when you wrote “benefit fixed in time like a fly in amber.” When you trick people, you dishonor your profession and dishonor the integrity implied by your retired Colonel status. Again, I say the truth, “No attorney need ever author a Hypothetical Method order again -- just give DFAS the numbers they ask for; DFAS does the rank/longevity ratio automatically behind the scenes. This is the benefit of the new method that you seem unable to grasp.
8. “Congress, which knows next to nothing about the division of property and pensions in divorce...”	Your arrogance shows, along with your disingenuous attitude. Of course, you know the original USFSPA law written by Congress. Where is your indictment of that law? I know you're aware of the huge report published for the Armed Services Committees. You know this issue has been pending and studied for more than 15 years.
9. “[The valuation date] is a mobile target, one which – to some extent – is subject to movement, massaging and maneuvering by the attorney for the former spouse.”	You cross ethical boundaries to advocate delaying an order well past divorce in order to “capture” more marital asset even though spouse long ago “like a disappearing train whistle” departed off the scene of contributing to the marriage.
10. “A delay in entry of the pension division order is another way for the FS to deal with the frozen benefit rule. …. A later division means a later “snapshot” of rank, years of service and the High Three.”	Again, you know there is no frozen benefit except the percentage. To intentionally misrepresent to a Court the factual definition of a marital asset is unethical. As you know, USFSPA is about marital asset, and you are grossly trying to redefine what a marital asset is by including duty, time, and rank long after the divorce. In May of 2017, the US Supreme Court aggressively slapped down such an arrogant over-reach re-definition like this.
11. “If the lawyer for the SM is not fully skilled in preparing hypothetical orders.”	See #5 and #6, above. I challenge you to present any case where an attorney will ever again have to write a Hypothetical Method order beyond echoing the template and giving DFAS them the numbers they ask for. If DFAS is not involved, the same percentage can be obtained much easier by simply include a time/point coverture and a rank/longevity coverture.

I wish you the best in this holiday season, and hope you find time to expand your perceptions. I hope some day you are confident and bold enough to discuss with those who might be able to help you. Again, I offer my experience with numbers and math to help you understand this material better. Combining skillsets could be a wonderful thing for the benefit and help of many other attorneys and Courts - let alone clients on both sides of a divorce.

/s/