Military Pension Distribution and Divorce: How Much Of My Pension Is My Ex-Spouse Entitled To Receive?
Military pensions are considered marital property subject to equitable distribution in a divorce. Courts have held that marriage is a joint enterprise. As a partnership, both parties financially contribute directly and indirectly. Thus, as much as a party may think he or she separately earned his or her pension, joint contributions in a marriage are subject to equitable distribution. Krafick v. Krafick, 234 Conn. 783, 793-95, 663 A.2d 365 (1995).
When determining the equitable distribution of military pensions, it is important to understand not all pensions are created equal. Military pensions have additional rules governing them. The Uniformed Services Former Spouses Protection Act (USFSPA) governs the division of military retired pay. 10 USC § 1408.
Under USFSPA, the length of marriage during military service is critical to the ability to divide the pension. Per statute, Defense Finance Accounting Service (DFAS) will not enforce any state court order that divides a miliary pension, unless the former spouse had “been married to the member for a period of 10 years or more” during years of active service. 10 USC § 1408(d)(2). If the parties do not meet the 10 years or more threshold, then the parties’ attorneys need to find an alternative method to address the issue, such as through alimony or otherwise in the overall division of assets. If the parties meet the threshold, then they can divide the military pension by an order known as a Domestic Relations Order (DRO).
Beware, however, if the party with the pension later qualifies for VA disability benefits of less than 50 percent, the spouse’s percentage of the DRO might be reduced automatically as a result. The divorce agreement should set forth what is to occur in this situation so that the court can adjust the other spouse’s share of disposable retirement pay to the pre-disability benefits level. If the parties meet the 20/20 threshold, then the former spouse will also be entitled to lifetime medical insurance and military benefits.
There are many unique rules that apply to the division of military pensions. Our Attorneys at BPS have extensive background in military pensions and divorce to enable us to protect our client’s interests.
If you have any questions about this topic, please contact Attorney Kevin B. F. Emerson.