Available 24/7
Understanding Military Retirement and Divorce: A Guide for Service Members and Spouses
Key Takeaways
- Military retired pay can be treated as marital property and divided upon divorce, subject to federal laws like USFSPA and state court jurisdiction, which require a nuanced understanding of regulations such as determining disposable retired pay and considering the impact of disability pay.
- The USFSPA allows for possible direct payments to former spouses from the DFAS if the marriage overlapped with military service for at least 10 years, with the amount limited to a maximum of fifty percent of the retiree’s disposable pay.
- Complex laws regarding military divorces necessitate the guidance of a specialized military divorce lawyer who can help navigate child support, alimony, SBP considerations, and ensure a fair division of assets such as military pensions and TSP assets.
Navigating the Division of Military Retired Pay in Divorce
A key aspect to comprehend in military divorce is the division of military retired pay. As per federal law, certain military benefits, including a military pension, may be considered marital property and hence, subject to division. This makes it one of the significant military benefits that require safeguarding during a divorce.
Understanding this intricate process necessitates a thorough grasp of two primary elements – disposable retired pay and the function of state courts in deciding the division. Let’s explore these components further.
Identifying Disposable Retired Pay
When we speak of a ‘member’s disposable retired pay’, we’re referring to the portion of a military pension eligible for division in a divorce, following specific deductions. Certain military-related benefits, like VA disability compensation, are excluded from this division.
The ‘marital portion’ of military retirement pay only includes earnings accrued during the marriage, while those earned outside the marital period are considered separate property. However, the receipt of disability pay can decrease the amount available to the former spouse, as it is deducted before calculating the disposable retired pay.
The Role of State Courts in Dividing Retired Pay
State courts have a significant part in dividing military retired pay. Their authority to divide a military pension is dependent on their jurisdiction over the military spouse. The courts consider the duration of the marriage, the service member’s rank, and length of military service, to determine the allocation to a non-military spouse.
In instances where federal law restricts the amount a non-military spouse can receive from a military pension, alternatives are sought. These may include an increase in alimony, or an unequal division of the marital estate.
The Impact of the Uniformed Services Former Spouse Protection Act (USFSPA)
The Spouses Protection Act, also known as the Services Former Spouses Protection Act or the Uniformed Services Former Spouse Protection Act (USFSPA), is a crucial legal provision in military divorces involving uniformed services former spouses. It allows states to consider military disposable retired pay as marital property, eligible for division in divorce cases. Consequently, it empowers state courts to allocate the pension similar to any other asset.
The eligibility for a former spouse to receive a portion of the military pension depends on the service member’s duration of service and rank at the time of the marriage, as specified in the court order. Moreover, the frozen benefit rule enables courts to equitably divide military retirement pay, typically in a 50/50 split.
Understanding Direct Payments to Former Spouses
Under certain conditions, the USFSPA also permits the Defense Finance and Accounting Service (DFAS) to make direct payments to former spouses. Eligibility for direct payments requires a minimum of 10 years of marriage during military service, and the payments can only commence within 90 days from the effective dissolution of the marriage.
The amount of direct payments is determined based on the court order that awards a portion of the service member’s military retired pay. However, despite the percentage awarded in the divorce decree, the direct payments are legally limited to no more than fifty percent of the disposable retired pay.
The Significance of the 10/10 Rule in Military Divorces
Military divorces heavily rely on the 10/10 rule. It pertains to the determination of the source of payment for a former spouse’s portion of military retired pay in a divorce and whether the Defense Finance and Accounting Service (DFAS) is authorized to send payments directly to the former spouse.
The rule stipulates that the service member must have completed a minimum of 10 years of military service while being married. In the event of a marriage that lasted a minimum of 10 years coinciding with 10 years of military service, DFAS can directly allocate the former spouse their share of the military retirement pay.
Retirement Benefits and Eligibility Rules for Former Spouses
A military divorce not only involves the division of military retirement pay but also introduces a range of other retirement benefits for former spouses. For instance, the 20/20/15 rule enables a spouse to obtain one year of transitional medical benefits, if the marriage lasted a minimum of twenty years, and there was at least a fifteen-year overlap with the military service.
Though these benefits offer some relief, remarriage terminates military ID privileges for a former spouse, thereby eliminating any associated healthcare and commissary benefits.
Survivor Benefit Plan Considerations for Divorced Military Spouses
Another significant consideration for divorced military spouses is the Survivor Benefit Plan (SBP). The SBP is a program sponsored and subsidized by the Department of Defense, designed to enable a retiree to guarantee a continuous lifetime annuity for their dependents after their death.
However, to elect ‘former spouse coverage’ under the SBP, the retiring service member must complete the relevant form during retirement proceedings. It’s also important to note that SBP payments are not subject to taxation.
Adjusting Child Support and Alimony in Light of Military Pensions
When it comes to child support and alimony payments, military pensions play a significant role. The maximum allowable garnishment for military pay is 50% of the retiree’s disposable earnings for these payments.
However, certain allowances such as the Basic Allowance for Housing (BAH) and the Basic Allowance for Subsistence (BAS) are not subject to garnishment. Therefore, in cases where the 10/10 Rule criteria are not met, it becomes the responsibility of the military spouse to directly pay the former spouse their share of the retirement pay.
Preserving Your Rights: Why Consulting a Military Divorce Lawyer is Crucial
- Streamline the intricate divorce process
- Provide guidance in custody disagreements
- Represent individuals in a range of legal areas pertaining to military divorce
A military divorce lawyer:
- Ensures compliance with federal laws related to military retired pay
- Facilitates the process of securing direct payment from Defense Finance and Accounting Service (DFAS) to the entitled former spouse
- Facilitates the process of securing direct payment from Defense Finance and Accounting Service (DFAS) to the entitled former spouse
- Navigates the complex federal laws and regulations that are specific to military divorces
Financial Planning Post-Divorce: Handling Military Thrift Savings Plan (TSP) and Social Security Benefits
Financial planning after divorce is an essential part of the process. The Thrift Savings Plan (TSP), a retirement savings and investment plan sponsored by the Federal government, becomes significant in this phase as its assets may be divided between ex-spouses.
The division of TSP assets in a divorce is done through the issuance of a valid Retirement Benefits Court Order (RBCO) using a Qualified Domestic Relations Order (QDRO). Additionally, a divorced military spouse can remain eligible for receiving Social Security benefits that were earned by the ex-spouse during their employment or military service.
Addressing Common Concerns About Military Retirement and Divorce
Military retirement and divorce commonly lead to numerous concerns and misconceptions. Jurisdiction, for instance, can often be a point of confusion, with potential discrepancies between a military member’s temporary stationing location and their official domicile.
Moreover, the Servicemembers Civil Relief Act offers legal safeguards to military personnel who have received divorce papers, allowing for a postponement of divorce proceedings if they are unable to partake due to their service obligations. Therefore, consulting a military divorce lawyer becomes crucial to navigate these varying rules and regulations across different states.
Summary
Navigating a military divorce is indeed a complex journey, fraught with legal intricacies and unique considerations. From understanding the division of military retired pay to grasping the significance of rules like the 10/10 rule and the 20/20/15 rule, each aspect holds importance. The role of state courts, the impact of the USFSPA, considerations for the Survivor Benefit Plan, and post-divorce financial planning – all these facets come together to form the comprehensive picture of military divorce. Ultimately, seeking advice from a military divorce lawyer can provide the essential guidance and support needed to safeguard individual rights during this challenging time.
Frequently Asked Questions
The 10/10 rule determines how the former spouse’s portion of military retired pay is handled in a divorce, including whether DFAS can send payments directly to the former spouse.
In a divorce, a military pension may be considered marital property and is subject to division according to federal law and the Uniformed Services Former Spouse Protection Act (USFSPA).