Divorce is difficult. That’s the simple truth of the matter. Certainly, taking two lives that have become entwined over the years and separating them will bring its share of heartache and stress. Divorce means not only the end of a relationship, however. It also means an end of sharing all of the property – tangible and intangible – that couples accumulate during the course of a marriage.
Understandably, determining exactly how to divide that property can be a stressful matter, even in the most routine and normal of circumstances. It can certainly feel more complex and daunting when special circumstances exist – as, for example, when one spouse serves in the military. Second only to questions about the care and custody of their children following a divorce, one of the most common questions asked by military families during a divorce is how the servicemember’s military pension will ultimately be divided.
As most who serve in the military are already aware, service members who retire after 20 years or more of active service are entitled to a retirement pension for the rest of their lives. Understandably, this is often considered a significant asset, and as a result, is often the subject of much debate and negotiation during divorce proceedings. Since 1982, the Uniform Services Former Spouse’s Protection Act (USFSPA) has provided state courts with the authority to treat military pensions as marital property that can be divided during a divorce. The act allows the court not only to distribute military retirement pay to an ex-spouse, but also provides a mechanism for enforcing those orders through the Department of Defense.
The general rule of thumb is that the spouse receives half of the military pension if the spouse was married to the service member for at least half of the years that he or she was serving. It is often most helpful to think of the portion of retired pay that is considered to be “marital property” as a fraction, with the numerator being the total number of years the parties were married during the term of military service, divided by the total time of service.
While this is a general rule of thumb for considering how courts might divide the military pension, what many divorcing couples don’t realize is that this amount is, in fact, negotiable. Although formulas are helpful in considering what might be a fair and equitable settlement, it is important to remember that dividing the pension in half evenly is not required if the spouses choose to negotiate another settlement.
For example, the spouses were married for less than ten years, the non-military spouse can still request half of the pension in exchange for giving up an interest in other marital property. On the other side of the coin, the service member may request a smaller division of the pension, even if the spouses were married for more than ten years, in exchange for giving up rights in other property to which he or she may be entitled.
In addition to negotiating and deciding upon division of the pension itself, divorcing spouses should also take additional matters into consideration when entering into the specific terms of their divorce agreement. First, it should be noted as divorcing spouses consider division of the pension, that the military will, at most, take half of the servicemember’s pension out of the paycheck itself. If the court awards more during the divorce, or if the spouses agree upon the non-service member receiving more than half of the pension, the service member spouse must make that additional payment directly to the ex-spouse. Additionally, divorcing spouses should realize that, if they were married for less than ten years, the military will not make a direct payment to the ex-spouse, and it is again the responsibility of the servicemember to do so directly.
It is also important that spouses of service members take into account the Survivor’s Benefit Plan, or SBP, as they are considering the terms of their divorce. Although a former spouse may receive a share of the service member’s pension as part of the divorce settlement, if that spouse does not also receive a share of the SBP, then he or she will no longer receive pension payments in the event of the service member’s death. As a part of the divorce settlement, the non-service member spouse should therefore request that the servicemember be required to pay into the SBP in order to ensure that the non-service member continue to receiving pension payments in the event of the service member’s death.
Additionally, those who agree upon the eventual division of retirement benefits, particularly in cases where the service member spouse is still actively serving, should also take the precautionary step of including a specific deadline to apply for retirement benefits in the divorce decree. This is because the non-service member spouse is unable to receive retiree pay until it is applied for, and in some unfortunate instances, retirees, even though eligible to apply, sometimes choose not to do so in order to prevent the ex-spouse from receiving the benefits. While many would like to assume that their spouse would not choose to be vindictive in this way, and while this is usually not the case, being proactive in taking precautionary measures is always a wise decision, regardless.
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At 303 Legal, we understand the complexities of divorce law – for military service members and non-service members alike. We realize that these issues can seem complex – and they are. The good news is that you never need to feel as if you are confronting these issues alone. We have years of experience and a wealth of knowledge about family law matters of all kinds, and we would be honored to have the opportunity to put that knowledge and experience to work on your behalf. If you have a question about the division of a military pension, or about any other divorce matter for which you need excellent, experienced representation, we encourage you to call us today. We look forward to speaking with you soon.