Understanding Military Pension Division in Divorce

Understanding Military Pension Division in Divorce

If you’re considering divorce and need to divide military retirement pay, it’s critical to understand the legal complexities that govern this process. Unlike civilian pensions, military pensions are governed by both state laws and federal regulations under the Uniformed Services Former Spouses’ Protection Act (USFSPA). Mistakes in handling military retirement pay can lead to significant financial consequences, making it essential to work with an experienced law firm, especially one that understands the specific challenges faced in military divorces.

At Patriots Law Group, led by former JAG attorneys, we specialize in helping military members and their spouses navigate the complex rules of dividing military retirement pay fairly and effectively. Below, we’ll break down the key aspects of military pension division in divorce and why working with a firm that knows both the military and civilian systems is critical to protecting your financial future.

1. The Basics of the Uniformed Services Former Spouses’ Protection Act (USFSPA)

The USFSPA allows state courts to treat military retirement pay as marital property and divide it during a divorce. However, each state’s family law governs the specifics of how pensions are divided, leading to variations in outcomes depending on where the divorce takes place.

One key point to understand is that the USFSPA doesn’t automatically entitle former spouses to a specific share of military retirement. Instead, it authorizes courts to divide it as part of the overall divorce settlement, and the court has discretion in deciding the share each spouse will receive.

2. Direct Payments from DFAS (Defense Finance and Accounting Service)

To receive direct payments from DFAS (the organization that handles military retirement pay), specific criteria must be met. Under the 10/10 rule, the marriage must have lasted at least 10 years, with at least 10 years of overlapping service. This allows for the direct payment of the former spouse’s portion of retirement pay directly from DFAS rather than through the service member.

In addition, a military pension division order must be submitted to DFAS. If the service member is not retired at the time of divorce, the order must contain very specific language, such as referencing the High-3 (the average of the service member’s highest 36 months of pay) and outlining the service member’s creditable service. Without these details, DFAS may reject the order, delaying payments.

3. Military Disability Pay and Its Impact on Pension Division

Military disability pay introduces another layer of complexity to dividing retirement benefits. If a service member opts to waive part of their retirement pay in favor of disability compensation, the former spouse’s share of the retirement pay can be reduced. Disability compensation is not divisible under the USFSPA, which can lead to the former spouse receiving less than anticipated. However, programs like Concurrent Retirement and Disability Pay (CRDP) allow some service members to receive both retirement and disability pay, which may help restore part of the pension for division.

Importantly, divorce agreements cannot mandate indemnification—meaning the service member cannot be forced to compensate the former spouse for lost retirement pay due to a disability waiver. Therefore, careful planning is needed to minimize potential financial impacts.

4. The Survivor Benefit Plan (SBP) and Divorce

The Survivor Benefit Plan (SBP) is another key issue in military divorce cases. The SBP ensures that a former spouse will continue to receive payments after the service member's death, but this must be handled carefully. A former spouse has only one year from the date of divorce to elect SBP coverage. Missing this deadline could result in the loss of this critical financial protection.

Additionally, the former spouse's eligibility for SBP benefits will be terminated if they remarry before age 55. This rule is an important consideration for anyone relying on SBP as part of their post-divorce financial plan.

5. Working with an Experienced Military Divorce Attorney

Navigating the intricacies of military pensions, disability pay, and the Survivor Benefit Plan in a divorce can be overwhelming. Without the right legal guidance, it’s easy to make costly mistakes that can affect your financial security for years to come. At Patriots Law Group, our team of former JAG attorneys has firsthand experience in military family law and understands the unique aspects of these cases. Whether you are seeking a fair share of military retirement pay or looking to protect your pension, our firm is dedicated to ensuring your rights are fully protected.

Call to Action

If you are facing a military divorce and need help navigating the division of military pensions, Patriots Law Group is here to guide you every step of the way. Contact us today to schedule a consultation at 301-952-9000 or use our online scheduling link (CLICK HERE) to get personalized legal advice.

Disclaimer: This blog is for informational purposes only and does not constitute legal advice. Reading this blog does not create an attorney-client relationship. For specific legal advice, please contact Patriots Law Group directly.