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Military Divorce: Division of Military Pensions

Military divorce is defined as a divorce where one of the parties is either active duty military, a reservist, National Guard member, or retired from active duty military, the National Guard, or Reserves.  A military divorce can be quite complicated, for example, when considering the division of a military pension. There are many roadblocks in the division of military pensions that make the process arduous. Prior to 1982, states used different approaches when handling military pensions, with some considering them as divisible marital property and others refusing to recognize them as such. However, in the wake of McCarthy v. McCarthy, Congress implemented the Uniformed Services Former Spouses’ Protection Act (USFSPA). The USFSPA provides numerous guidelines for handling military pensions in divorce proceedings, but the Act does  not clearly describe how military pensions are to be divided upon divorce.  Only experience and familiarity with the Act and the nature and terms of military service can provide the practitioner with the means and methods to do it right.

Overview of USFSPA

The USFSPA recognizes the right of state courts to distribute military retired pay to a former spouse. It also provides a method of enforcing these orders by direct payments from the Department of Defense to the non-military former spouse. There is one important difference between a military divorce and a civilian one, however.  During a military divorce, state courts may divide military retired pay, according to the federal statute, USFSPA.  But the Act has eligibility criteria, which must be met, before the Defense Department can be required to make direct payments to the non-military spouse, regardless of a state court order.  In such situations, federal law trumps state court practices.

It is notable to mention that there is not an automatic entitlement to the member’s retired pay to a former spouse. Rather, the former spouse must have been awarded a portion of a military member’s retired pay as property, in their final decree of divorce.  Once awarded in the final judgment or settlement documents, an additional order, called a Military Retired Pay Division Order, must be entered by the court and forwarded to the Defense Finance and Accounting Service (DFAS) for implementation, if appropriate.

Important Factors

Military division of property upon divorce is a battlefield. There are numerous variables one must consider when dividing military retired pay. Some of the most infamous variables are listed below with a brief description.

Rank and Years of Service at Retirement

The computation of retired pay is based on military rank and years of service at the time of divorce or separation, and not necessarily at the time of retirement.  This is particularly the case, if retirement occurs after the divorce or separation.  Promotions and pay raises received after the divorce or separation are not to be included in the calculus of dividing military retired pay.

Years of Marriage – 10/10 Rule

USFSPA permits a former spouse to receive up to 50% of the military member’s retired pay directly from the Defense Finance and Accounting Service, if there is a minimum concurrence of military service and marriage.  The general rule is that the servicemember and former spouse must have been married to each other for at least 10 years, during which time the member performed at least 10 years of military service creditable towards retirement eligibility.

Retired or Active Duty?

In all cases where the member is on active duty at the time of the divorce, the member’s rights are protected under the Servicemembers Civil Relief Act of 2003 (SCRA). These rights must be acknowledged throughout the entire legal proceeding. Active servicemen are protected under the SCRA. Under the provisions of the SCRA, active duty servicemen may qualify for delay of all civil court actions, such as divorce proceedings, if their military service materially impairs their ability to participate in the judicial proceedings.

If you are a serviceman or servicewoman going through a divorce, whether active duty, National Guard, or Reserve, it is best to know your rights. Contact the Fort Lauderdale and Hollywood Law Offices of Steven A. Mason, P.A. for legal advice at 954-963-5900 or leave a message online.

Sources:

Silent Partner: MilitaryPension Division – Scouting the Terrain

Defense Finance and Accounting Service: Former Spouses’ Protection Act

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