Military Divorce and Retirement Pay
Military divorces are substantially similar to civilian divorces, but one contentious item in military divorces involves whether a former spouse is capable of claiming a portion of the servicemember's retirement pay. The following article examines military divorce and retirement pay to clarify how the laws and courts treat pensions and other benefits differently when one or both of the spouses are in the military.
What is at Stake?
Military retirement benefits are an important asset. Military servicemembers can accrue a significant amount of retirement benefits more quickly than is often possible in the civilian context. Furthermore, military pensions are administrated through the Defense Finance and Accounting Service (DFAS.)
While a court order dividing pension benefits is nearly always enough to satisfy a private pension provider, the DFAS will only distribute pension benefits to a former spouse where they meet the requirements of the Uniformed Services Former Spouses' Protection Act (USFSPA.)
The Uniformed Services Former Spouses' Protection Act
The USFSPA is a federal statute that requires military organizations to accept and enforce state orders relating to child support, spousal support, and military retirement pay. In addition to entitling former spouses to direct payment of military retirement funds from DFAS, the statute also provides the eligibility criteria to claim military divorce retirement pay as a marital asset or community property.
Retirement pay can be claimed by a spouse seeking a military divorce where they can show that the couple was married at least 10 years and that, during that 10 year period, the servicemember accrued a total of 10 years of creditable military service during the marriage. This is frequently referred to as the 10/10 requirement.
The criteria for these benefits must be established as part of the marriage settlement agreement. If the requirements of the USFSPA are met, the spouse may claim up to 50 percent of the servicemember's military retirement pay.
Also, the state court issuing an order dividing military retirement pay must have jurisdiction over the servicemember on account of either:
- Their residence, other than due to their military assignment, in the jurisdiction of the court;
- The servicemember's domicile in the territorial jurisdiction of the court; or
- The servicemember's consent to the jurisdiction of the court.
Jurisdiction acquired under other lawful state grounds does not satisfy the USFSPA and may prevent the statute's protections and benefits.
Defense Finance and Accounting Service Procedure
When a spouse has been granted a military divorce claiming retirement pay and has established the criteria that satisfy the USFSPA, the spouse must then file the order with DFAS. It typically takes 90 days for direct payments to begin, if the former spouse is already receiving military retirement benefits. If the servicemember is still in active service the payments commence 90 days after the servicemember becomes eligible to receive their first payment.
In some situations, child support payments may be drawn from a military servicemember's retirement pay. In these situations the maximum amount that can be drawn from military retirement pay is a combined total of 65 percent of the disposable retirement pay.
Learn More About Military Divorce and Retirement Pay
Divorces are emotional and technically complicated even when the military isn't involved. Failure to take into account state and federal laws can result in unenforceable orders, procedural hassles, delays, and other hardships. Consider speaking to a military divorce attorney to learn how their expertise can help ensure your divorce.