Dividing Military Retirement Benefits in a Divorce

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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The Uniformed Services Former Spouses Protection Act (USFSPA) was enacted to authorize state courts to divide military retirement benefits as a marital asset in divorce proceedings. Working your way through the overlap of various state and federal rules regarding the division of military retirement in a divorce can feel like walking through a mind-field. A misstep can result in a complete loss of benefits.

Because of the overlap in state and federal laws, issues like eligibility, timing, and jurisdiction have a more significant effect on a military divorce. A spouse of a military member should consult with a family law attorney who is versed in state and federal law to review these issues before filing for a military divorce.

Benefits Eligibility

The threshold issue to address is whether you are even eligible to claim an interest in your spouse’s military retirement benefits. Eligibility will be determined by several factors including the length of your marriage, length of service in the military, and the overlap of the two time frames. For example, direct payment of a spouse’s share of a military retired pay to the payee is only authorized after the service member has at least ten years of service. Eligibility is just the first step in asserting an interest in military retirement benefits. Where you file for divorce will eventually govern the percentage of military retirement you will be awarded.

The USFSPA also authorizes other benefits to a former spouse of a service member if certain timing conditions have been satisfied:

  • Minimum 20 year marriage
  • 20 years military service (some time may not count so legal advice is critical)
  • 20 year overlap between marriage and military service

These requirements are customarily referred to as the 20/20/20 rule. If these requirements are all met the civilian spouse it entitled to full medical, commissary, base exchange and other base benefits as long as the spouse does not remarry. Upon remarriage, these additional benefits terminate but may be reinstated if the former civilian spouse’s subsequent marriage ends in divorce or death. There is one important exception: medical benefits are permanently terminated if a civilian spouse remarries.

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Dividing Military Benefits

USFSPA authorizes state courts to classify and divide military retirement as marital property in a divorce action. State law will govern the exact division and classification of military retirement. Depending on whether you live in a “community property stateor “equitable property state.” will affect the division of military retirement benefits in your divorce. State laws generally consider several factors in the division of property including, but not limited to:

  • Whether you have your own retirement plan
  • Cash assets on hand
  • The amount of real property to be divided
  • The interest in the military retirement already awarded to a former spouse

Before you finalize your request to be awarded an interest in a military spouses’ retirement, consider how and when you expect to receive payment. Civilian spouses are sometimes faced with the challenge of trying to collect their retirement interest directly from the former spouse. Instead of fighting a former spouse for payment, you can request and the judge can award an offset by giving you a higher percent of marital assets now in exchange for you waiving a later interest in your spouse’s retirement benefits.

Getting Legal Help

The bottom line is that if you don’t ask to be awarded an interest in your spouses’ military retirement, or you don’t make the request properly, you will loose your right to assert that interest later. Because of the specialized rules regarding timing, eligibility, and jurisdiction, anyone considering a divorce from someone in the military should consult an attorney with experience in military law and family law to ensure a proper review of these issues to best decide how and when to proceed with a divorce.

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