Military Retirement and Divorce: Protecting Your Pension
Any divorce can be complicated – emotionally, financially, and legally. However, when one or both spouses is a member of the military, the issues can be even more complex. In addition to the normal issues that any couple may face in a divorce, there are often added questions of how certain military benefits will be divided.
After 20 years of service, you are eligible for a defined benefit military pension. Under federal law, if you get divorced, this pension may be an asset subject to property division. Depending on the length of your marriage and whether you were married during your service, your soon-to-be-ex may be entitled to as much as 50% of your pension.
There are ways that you can protect your military pension. With the help of a skilled military divorce attorney, you may be able to negotiate a settlement that allows you to retain all or most of your military pension.
How Will a Divorce Affect Your Military Pension?
The Uniform Services Former Spouses Protection Act (USFSPA) is a federal law that governs how military retirement pay is treated in a divorce. Under the USFSPA, state courts can treat a military pension as property that is subject to the division of assets.
In 2017, the USFSPA was changed to allow courts to split this pay 50/50 based on the value of the pension at the time of retirement from the military. Known as the frozen benefit rule, the former spouse’s benefits are frozen from the date that the marriage is dissolved. The portion that they may be eligible to receive is based on their military spouse’s (1) time in service and (2) rank during the marriage.
The USFSPA does not guarantee that a former spouse will receive a portion of your military pension. Instead, it simply treats the pension as property for the purpose of dividing assets during a divorce and authorizes state courts to divide the pension just as it would any other asset. For this reason, a skilled attorney can often work to protect your military pension during the divorce process.
There is no set amount of time that you must be married for your spouse to potentially be able to access your military pension in a divorce. Even if you were married for less than a year, a court may award a share of your military retired pay to them. However, if you were in a long-term military marriage that overlapped with a lengthy period of service, then your former spouse may be entitled to as much as 50% of your military pension.
The amount of your pension that your ex may be entitled to is up for negotiation, just like any other asset that is considered community or marital property under California law. For example, you may choose to offer a piece of property in exchange for the pension. If the court order does not include a division of your military pension, then your ex does not have a right to these payments.
Military retirement benefits in a divorce are a valuable asset, but they are often prospective in nature. This means that a former military spouse’s pay after divorce will not start until you apply for retirement. This fact may help you negotiate a more favorable settlement that allows you to keep more of your retirement pay.
Ultimately, the amount set by the court order or settlement agreement will determine how much of your pension you will be required to divide with your former spouse. Because these divisions can be complicated and are subject to both federal and state law, the best way to protect this significant asset is by working with an experienced San Diego divorce lawyer who understands these laws and how they are applied to military divorces.
What Is the 10/10 Rule?
When dividing a military pension in a divorce, many people wrongfully believe that a non-military spouse can only receive retired pay if they were married to you for 10 years, with at least 10 years of service during that time. The 10/10 rule does not determine how much a former spouse may receive. Instead, it determines the source of that payment.
Specifically, if you were married for at least 10 years, and 10 years of that marriage were spent in creditable military service, then your ex will be paid directly through Defense Finance and Accounting Service (DFAS). DFAS will start to make these payments after receiving a court order. Otherwise, you will pay your ex directly.
How Long Does a Military Spouse Receive Pay After Divorce?
If your former spouse is entitled to a portion of your military retirement pay, then they will continue to receive this payment until one of you passes away. If you die before your ex, then their benefits will stop. However, remarriage does not affect their right to a portion of your military pension if it was awarded in a divorce.
What Is a Military Spouse Entitled to in a Divorce?
A military spouse may be entitled to military medical benefits (depending on the length of your marriage), spousal support, and child support. In addition, a thrift savings plan (TSP) or military pension may be divided as part of a divorce. They may also receive commissary, exchange, and theater privileges. Some of these benefits will end if your ex-spouse remarries.
How Will My Military Pension Be Divided?
The division of your military pension during a divorce can vary significantly based on how property is divided overall. While some states only look to disposable retired pay – the amount left after deductions for things like disability – California law requires that the total value of the pension be subject to division.
Considering a Divorce? We Can Help.
Getting divorced can be traumatic – and expensive. If you are a member of the military, protecting the assets that you accumulated throughout your service, such as your pension, may be a top priority. The Law Office of Renkin & Associates can help.
As certified family law specialists, we understand how California law applies to a range of divorce cases – including those involving members of the military. We work hard to help our clients achieve the best possible outcome. To learn more or to schedule a consultation with an officer divorce lawyer, call our law firm at 619-304-4760 or fill out our online contact form.