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Military Divorce – How Is Military Pay Divided?

Wednesday, 14 August 2013

military_divorce_coupleIf there is one thing that can make a military service member nervous it is the thought of losing part of his or her retired pay in a divorce settlement.  It doesn’t matter if one served on the front lines in Afghanistan or Iraq, or as an officer at the U.S. Air Force Academy, military personnel depend heavily on their retirement benefits as a reward for their years of sacrifice to our country.  However, it is important to note that many states’ divorce laws might require the equitable distribution of all marital assets; service members included.  It’s no surprise that questions about military pay are the first to come up when a service member talks to a divorce lawyer.

Before you start wondering if future retirement pay is at risk, it is important to note that in Colorado military retirees are not required to follow “equal” distribution laws.  Before anything is divided, the state must first determine jurisdiction over the matter, as well as the amount of retired pay is actually considered “marital property.”  Only the portion that is considered a “marital asset” must be divided in an equitable manner.

How is a military divorce different from a civilian divorce in terms of retirement funds?

In a military divorce, the laws of the state are temporarily put aside and national military laws take effect.  Known as the Uniform Services Former Spouse’s Protection Act (USFSPA), the law provides a way to enforce the distribution of military retirement pay in a way that is less damaging to the service member.  Once determined, this distribution is ultimately managed by the Department of Defense.

How is the “marital property” portion determined?

To determine the amount of military retirement benefits actually considered marital property, the calculation is a simple fraction.  It divides the number of years of military service by the number of years or months of military service.  The answer is usually a percentage, which is then determined to be the percentage of retirement pay that can considered a marital asset.  The state court will then decide how that asset is to be distributed between the parties.  Anything that is not considered marital property would remain the sole property of the service member.

The unseen benefits of a military divorce

The average service member might be accustomed to receiving preferential treatment within the community, and this is no different in a divorce situation.  Military personnel are usually awarded special treatment by the federal government in civil suits or other time-sensitive legal issues.  Certain conditions, such as being on duty overseas, might prevent the service member form exercising his or her legal rights in a divorce as well, but there is no need to worry.  Specialized military divorce lawyers are accustomed to dealing with divorces that occur while a soldier is deployed, making it difficult for him or her to appear in court about child support, custody, and the ensuing property settlement.  A military divorce lawyer can often act on behalf of his or her client and be present in court on their behalf.  Certain hearings may also be postponed if there the service member cannot be present.

What is the impact of divorce on military retirement benefits

Until 1981, courts were not allowed to use the military retirement pay of a military service member when calculating the division of property. However, after the federal government passed the Uniformed Services Former Spouse Protection Act (USFSPA), courts were allowed to use retirement pay for calculation of alimony, or child support.

However, the law provides that no more than 50% of a military service member’s retirement pay can be used for this purpose. Even if her or she has several spouses over the years, this barrier cannot be altered, nor can the initial percentage be divided between spouses.  For example, if a service member has two former spouses and the first spouse is awarded 40% of their retirement pay, then the second spouse cannot receive more than 10%.

Jurisdiction of courts on division of military retirement pay

Since military personnel can be in several places on duty, the couple must first decide on the location of the divorce filing.   If the spouse is living in a state that is neither the service member's place of duty, nor his or her legal residence, then the divorce proceedings can be filed in the spouse’s state, the service member’s state of residence, or the state where he/she is currently deployed, provided that they have lived there long enough to become a legal resident. In Colorado for example, one must live in the state for a year before one is considered to be a resident. Other states may have stricter requirements.

Military service members must be careful to research the laws of each state where the divorce could be filed.  This is very important because each state can be very different.  Sometimes merely answering a summons could be construed as the service member’s acceptance of that court’s authority over the matter.  That is why it makes sense to consult with a military divorce attorney before responding to any filings.

Photo Courtesy of Nuttakit / FreeDigitalPhotos.net

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MPatMarrisonFor over a quarter century, we have helped people during what is often the darkest time in their lives. Divorce is not easy even under the best of circumstances. For most people, family is central. Having something go wrong in the family can have a ripple effect that extends beyond the home and into other areas.

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