NOTICE: THIS DOCUMENT
CONTAINS SENSITIVE DATA
IN THE MATTER OF
IN THE DISTRICT COURT
THE MARRIAGE OF
DAVID DEAN FITTRO
440TH JUDICIAL DISTRICT
TRACY MICHELLE FITTRO
BELL COUNTY, TEXAS
MILITARY RETIREMENT PENSION DIVISION ORDER
The Court, having entered a decree of divorce coincident with the signing of this military retirement pension division order, finding that the entry of a Military Retirement Pension Division Order (MRPDO) is necessary to effectuate the terms of that decree of divorce, and further finding that the entry of an MRPDO is appropriate, makes the following findings and conclusions of law and enters them as an order in this proceeding.
The Court finds, in accordance with the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. section 1408, as follows:
1. This Court has jurisdiction over DAVID DEAN FITTRO. The residence of Servicemember is in Copperas Cove, Coryell County, Texas, other than because of military assignment during the proceeding.
2. Servicemember, and TRACY MICHELLE FITTRO, ("Former Spouse"), were originally married on March 24, 1994, and that marriage lasted for 29 years and 7 months or more, during which time Servicemember served 20 years and 3 months or more of creditable service toward retirement.
3. Servicemember's Social Security number is [*_________*], his address is [*_________*], Copperas Cove, Texas [*_________*], and his birth date is August 14, 1967.
4. Former Spouse's Social Security number is [*_________*], her address is [*_________*], [*_________*], Texas [*_________*], and her birth date is September 12, 1966.
5. The rights of Servicemember under the Servicemembers Civil Relief Act (50 U.S.C. §§ 3901–3920) have been observed and honored.
6. Servicemember is retired from the United States Army at the time of this order.
7. The award of disposable retired pay made to Former Spouse in this order is made in compliance with the Uniformed Services Former Spouses' Protection Act.
8. It is intended by this Court and the parties that the Defense Finance and Accounting Service (DFAS) designee make the payments due to Former Spouse of her interest in the disposable retired pay awarded in this order directly to Former Spouse.
Terms and Definitions
With respect to the provisions of this MRPDO, the Court has used and applied the following terms and definitions:
1. "Retired pay" means monetary pay to which Servicemember is, or may hereafter be, entitled to receive on completion of the requisite number of years of creditable service to be entitled to nondisability retired pay as a result of service in the United States Armed Forces (active duty, reserve component, or national guard), whether called retired pay, retainer pay, or retirement pay.
2. "Disposable retired pay" has the meaning provided in the Uniformed Services Former Spouses' Protection Act (10 U.S.C. § 1408 et seq.) in effect on the date of the parties' divorce.
3. "USFSPA" means the Uniformed Services Former Spouses' Protection Act (10 U.S.C. § 1408 et seq.) in effect on the date of the parties' divorce.
4. "Defense Finance and Accounting Service" (DFAS) means, refers to, and includes the Secretary of the Department of Defense, the Director of the DFAS, the designated agent of either of these, and other appropriate subdivisions of the United State Government.
5. "COLA" means the cost-of-living adjustment increases that are made annually to a military retiree's retired pay pursuant to 10 U.S.C. § 1401a.
Award to Former Spouse
IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember 50 percent multiplied by 20 multiplied by Servicemember's monthly disposable retired pay.
IT IS FURTHER ORDERED that DFAS, to the extent allowed by law, pay Former Spouse each month the calculated percentage of Servicemember's disposable retired pay at retirement, together with all COLAs applicable thereto, payable, IF, AS, and WHEN received by Servicemember.
The Court finds that the foregoing calculated percentage of disposable military retired pay awarded Former Spouse has been reduced to provide for Former Spouse's payment of all of the monthly Survivor Benefit Plan premium cost.
IT IS FURTHER ORDERED that the rest, residue, and remainder of the military retired pay of Servicemember is the sole and separate property of Servicemember.
Amounts in Excess of 50 Percent
IT IS ORDERED that if the dollar amount or award (or a larger sum as increases take effect) exceeds 50 percent of the disposable retired pay, DFAS shall pay to Former Spouse the maximum amount allowable under the USFSPA and Servicemember shall be responsible for paying the balance of the award each month to Former Spouse, and it is accordingly ORDERED.
If DFAS is not allowed to pay Former Spouse the full amount of Former Spouse's entitlement pursuant to this order for any reason, Servicemember is hereby ORDERED, within seven days of being notified by Former Spouse that Former Spouse is not receiving the full amount of Former Spouse's interest in the retired pay, to execute and deliver to DFAS all forms or documents that may then be necessary to effect an allotment payable to Former Spouse in the amount of the difference between the amount being paid directly to Former Spouse by DFAS and the full amount of Former Spouse's interest in the retired pay. Servicemember is FURTHER ORDERED to keep and maintain in full force and effect any allotment required by this provision, payable to Former Spouse at [*_________*], [*_________*], Texas [*_________*], or such other address as Former Spouse may hereafter specify in writing, until such time as Former Spouse begins receiving Former Spouse's full separate-property share of Servicemember's disposable retired pay as awarded herein directly from DFAS. That allotment may be canceled by Servicemember if and when Former Spouse begins receiving, and for as long as Former Spouse is receiving, Former Spouses' full separate-property share of Servicemember's disposable retired pay directly from DFAS, but only in that event or to avoid double payment of sums.
Since Former Spouse has been awarded the right to receive that share attributable to the interest awarded to Former Spouse herein of any and all COLAs or other increases in the monthly disposable retired pay hereinafter paid and if Former Spouse is not receiving from DFAS his full share of the retired pay herein awarded to Former Spouse, if and when COLAs are made to the retired pay received by Servicemember, Servicemember is hereby ORDERED to execute and deliver to DFAS all forms or documents that may then be necessary to effect an increase in the allotment to Former Spouse in the amount equal to the dollars-and-cents equivalent of that COLA attributable to Former Spouse's share of that disposable retired pay. Servicemember is hereby ORDERED to increase the allotment then in effect or, if applicable, initiate an allotment pursuant to the foregoing paragraph, within seven working days of the date Servicemember is notified by DFAS of the effective date of each COLA to the monthly retired pay payment.
IT IS FURTHER ORDERED that Servicemember be and is hereby designated a constructive trustee for the benefit of Former Spouse for the purpose of receiving the retired pay awarded herein to Former Spouse as Former Spouse's sole and separate property, and Servicemember be and is hereby ORDERED, on receipt thereof, to deliver by first-class mail to Former Spouse at her last known address by negotiable instrument that portion of each monthly retired pay payments awarded to Former Spouse herein not paid directly (or by allotment) by DFAS within three days of the receipt of any such payments by Servicemember. All payments made directly to Former Spouse by DFAS shall be a credit against this obligation.
For purposes of this order, Servicemember is specifically directed, on penalty of contempt, to pay Former Spouse's interest in the disposable retired pay as ordered in this order, AND IT IS SO ORDERED. Servicemember is specifically directed that he is not relieved of that obligation except to the extent that he is specifically notified that 100 percent of Former Spouse's interest in the retirement benefit has been directly paid by DFAS, and IT IS SO ORDERED.
IT IS FURTHER ORDERED that any election of benefits that may hereafter be made by Servicemember shall not reduce the amount equal to the percentage of the retired pay or the amount of the retired pay the Court has herein awarded to Former Spouse, except as provided by federal law and prohibited from being changed by a state court order. In this regard, IT IS FURTHER ORDERED that Servicemember shall not merge his military retired pay with any other pension and shall not pursue any course of action that would defeat, reduce, or limit Former Spouse's right to receive Former Spouse's full separate-property share of Servicemember's retired pay as awarded in this order, unless otherwise ordered herein.
IT IS ORDERED that the payment of the retired pay awarded in this order to Former Spouse shall continue until the death of Servicemember or Former Spouse.
Retiree Account Statements and Privacy Waiver
IT IS FURTHER ORDERED that Servicemember shall deliver by first class mail to Former Spouse at [*_________*], [*_________*], Texas [*_________*], or such other address as Former Spouse may hereafter specify in writing, a true and correct legible copy of each Retiree Account Statement received by Servicemember from DFAS within five day of its receipt.
IT IS ORDERED that Servicemember hereby waives any privacy or other rights as may be required for Former Spouse to obtain information relating to Servicemember's date of retirement, last unit assignment, full pay grade, past or present monthly annuity payments, or other information that may be required to enforce this award or to revise this order to make it enforceable.
Application for Direct Payment of Retired Pay
Former Spouse is hereby directed to apply for Former Spouse's entitlement to a portion of Servicemember's disposable military retired pay by contacting the DFAS Legal Department, completing the Application for Former Spouse Payments from Retired Pay (DD Form 2293), and delivering it along with a certified copy of this MRPDO (certified within ninety days of its delivery to DFAS) and a photocopy of the parties' marriage certificate to: DFAS-HGA-CL, Assistant General Counsel for Garnishment Operations, P.O. Box 998002, Cleveland, Ohio 44199-8002 by certified mail, return receipt requested.
IT IS FURTHER ORDERED that Former Spouse shall include in her gross income for her taxable years of receipt all retired pay received by Former Spouse pursuant to this order, and, to the extent benefits are payable to Former Spouse by DFAS, Servicemember shall not include such benefits in Servicemember's gross income for such taxable years.
Survivor Benefit Plan
The Court further finds that Former Spouse is presently named a spouse beneficiary of Servicemember's Armed Forces Survivor Benefit Plan (which is deemed to include the Reserve Component Survivor Benefit Plan, if applicable) and that Servicemember's election to provide the Survivor Benefit Plan benefits to Former Spouse should be continued by Former Spouse's being designated as a former spouse beneficiary and that Former Spouse's designation as a former spouse beneficiary should not hereafter be modified, amended, withdrawn, reduced, or altered by Servicemember during Former Spouse's lifetime, and IT IS SO ORDERED.
IT IS THEREFORE ORDERED that Servicemember shall elect to designate Former Spouse as a former spouse beneficiary of Servicemember's Survivor Benefit Plan. IT IS FURTHER ORDERED that, pursuant to this order, Former Spouse be and is hereby deemed designated, to the extent permitted by law, a former spouse beneficiary of Servicemember's Survivor Benefit Plan to receive the highest Survivor Benefit Plan entitlement allowed by law.
Former Spouse is directed to apply for Former Spouse's entitlement to be deemed a former spouse beneficiary of Servicemember's Armed Forces Survivor Benefit Plan by notifying the DFAS Legal Department of this Court's deemed election pursuant to 10 U.S.C. section 1447 et seq., completing a DD Form 2656-10 to effect the deemed election, and sending it, along with a certified copy of this order, to Defense Finance and Accounting Services (DFAS), 8899 E. 56th Street, Indianapolis, Indiana 46249-1200 by certified mail, return receipt requested. Former Spouse's failure to register her deemed election within one year of the date this MRPDO is signed may, if not will, forever bar such an election for Former Spouse.
IT IS ORDERED that Servicemember shall not during Former Spouse's lifetime modify, amend, withdraw, or in any other manner alter the election to name Former Spouse as a former spouse beneficiary of Servicemember's Armed Forces Survivor Benefit Plan.
Medical and Commissary Benefits
The Court further finds that Former Spouse is entitled to receive medical and dental care under the terms of 10 U.S.C. section 1071 et seq. and to commissary and post exchange privileges to the same extent and on the same basis as a surviving spouse of a retired member of the United States Armed Forces following the date the Final Decree of Divorce is signed.
Continued Jurisdiction and Clarification
Although the Court and the parties intend that DFAS make direct payments to Former Spouse of Former Spouse's interest in the disposable retired pay awarded herein, IT IS FURTHER ORDERED that, if this order does not qualify for direct payment, Servicemember shall cooperate and do all things necessary to aid Former Spouse in obtaining a clarification of this order that will qualify for direct payment of Former Spouse's interest in the disposable retired pay awarded in this order. IT IS FURTHER ORDERED that this Court reserves jurisdiction to enter such a clarifying order.
Without affecting the finality of the Final Decree of Divorce or this Military Retirement Pension Division Order, this Court expressly reserves the right pursuant to section 9.101 et seq. of the Texas Family Code to make orders necessary to clarify, amend, and enforce this order, and IT IS SO ORDERED.