How Will Divorce Divide a Military Pension?

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No matter the circumstances that have prompted your divorce, going through the divorce process can be tedious and complex. If one or both of you are service members, questions such as what happens to your pension can complicate the divorce. This question is important, and you need to know where you stand before you enter the process. If you are curious about what might happen to your military pension after your divorce, continue reading. Every circumstance is different, and the attorneys at Melone Hatley, P.C. are ready to assist you with whatever may be involved in your military divorce.

How Does a Military Divorce Affect Your Pension?

Soldiers standing in formation saluting

As a defined retirement benefit for service members, a military pension is a worthy goal, and eligibility requirements must first be met, followed by a distinct timeline and payout.

Essentially, service members must serve for 20 years before being eligible to receive payments under the military pension. For those in the Reserves or National Guard, the requirement differs in that acquiring enough points, not years, is the determining factor.

Yet, while you may do everything right to prepare for your retirement, a divorce can affect your military pension. The Uniformed Services Former Spouse Protection Act, or USFSPA for short, outlines what those effects can be. The Act is federal law and governs how the pension of a retired service member will be evaluated during a divorce.

It is essential to note that the USFSPA permits adherence to the state court’s family law rules if, at the time of the divorce, the couple did not meet the 10/10 rule, which we discuss below. Depending on state laws, the court may treat the pension as community property or marital property and, in turn, include it when dividing up marital assets.

Because of this, always keep in mind that a military pension is considered disposable retired pay and can factor into divorce proceedings just as much as child support, alimony, and any shared debt, such as a mortgage.

The Former Spouses’ Protection Act is meant to protect spouses in a divorce. Still, there is no guarantee that the non-military spouse will receive any part of that military retired pay in the court’s decision for property division

What is the 10/10 Rule for Military Divorces?

The 10/10 rule plays an important role in military divorces. This rule states that if a former military spouse has spent at least 10 years of marriage overlapping with 10 years of creditable military service (active duty pay), they have a special status for how and where they apply for payments. This rule allows the ex-spouse to apply to receive payment directly from the Defense Finance and Accounting Service (DFAS).

The benefits of direct payments from the DFAS are that the ex-spouse can avoid potential conflicts and eliminate missed or late payments. The ex-spouse will receive a 1099 form to file with taxes that shows only their share, thus making the overall process somewhat easier on both.

If you are wondering if you fall under the 10/10 rule, consider these examples.

  • You and your spouse were married for 14 years, but only 7 of those years were while the service member was in the military. If so, the 10/10 rule does not apply to you.
  • You and your spouse were married for 14 years, and for 10 of those years, your spouse served on active duty. If so, you are eligible under the 10/10 rule.

The guidelines for those serving in the Reserves or National Guard are slightly different and based on points rather than years to be creditable. To understand the differences, seek legal advice from our military divorce attorneys before initiating divorce proceedings.

woman taking off her ring

How Long Will an Ex-Spouse Receive Military Pension?

If you are the spouse of a service member, you should ask about the pension during the divorce, not once it is finalized and you have a divorce decree in hand. Waiting until the divorce is finalized can be problematic if you wish to request a part of that pension later on, such as when the service member retires from the military.

If this happens to you, you may still have legal options. For example, you can file a motion to reopen the divorce case to deal with omitted assets. As this option can be complicated, speak with a military divorce attorney before you begin proceedings. If your divorce has already been granted, contact us as soon as possible to discuss what you can do to seek a portion of the military pension.

Considering your options regarding sharing retirement pay may not be as important to you now as it will be later. Receiving even a portion of a military pension can make a big difference in your life and your future.

If you are awarded part of your military spouse’s pension at the time of the divorce, you will likely continue to receive payments until your death or that of the military retiree.

What Happens if My Spouse Remarries?

A question often mentioned regarding the division of military pensions is what happens if the former military spouse remarries at some point in the future.

If your ex-spouse remarries, it does not stop the direct payment from the DFAS unless it has been court-ordered. This means that payments will not stop unless a court order grants the divorce and states explicitly that remarriage will end pension payouts.

What Happens to a Military ID Card After a Divorce?

Divorce proceedings can take time and cause inconveniences for both parties. Yet, while the divorce is pending, you can keep your military ID card and the associated privileges that go along with it, such as access to the commissary and exchange.

However, once the divorce is finalized, the ID card is subject to being taken away unless you meet the 20/20/20 rule. This rule requires the following:

  • Twenty years or more of marriage
  • Twenty years or more of military service 
  • Twenty years or more of overlap of military service and marriage

If you meet these three requirements as an ex-spouse, you will maintain access to military benefits for the rest of your life.

However, if you are eligible under the 20/20/20 rule and continue to receive the privileges that come with the military ID, getting remarried will terminate those privileges, including medical benefits. You must also return the ID as it is considered federal property.

Every Military Divorce is Different

soldier holding his head in grief

It is obvious that military divorces are unique from civilian ones due to a variety of reasons. In addition, every military divorce is different and involves individual factors, making them highly complex and challenging.

In particular, military retirement benefits and any division of those benefits can be confusing for all. Even if a marriage does not last twenty years, the non-military spouse could still seek a portion of those pension benefits.

Another factor in this type of divorce revolves around whether or not a military member elected to include a survivor benefit plan, which will also need examination.

As you can see, there is much to consider when filing for a military divorce. Various factors must be considered, from military years of service to how long the marriage has lasted to the amount of marital property. Sorting through all of these and making sure each of you receives what you need and deserve will take time and legal know-how.

For help, contact our experienced Virginia military divorce lawyers and learn how we can help in your particular circumstances.

Want a Divorce but Worried About Your Military Benefits?

Coming to the point in your life where you realize your marriage is not working for one reason or another can be traumatic. That decision can cause complications and concerns for military couples, especially regarding how it will affect military benefits.

If you want a divorce but are worried about your ability to maintain benefits or whether a military pension can be divided, reach out to our dedicated military divorce attorneys at the law firm of Melone Hatley, P.C.

With the largest naval base in the world being in the Hampton Roads area, military families are a big part of the community and also experience a high rate of divorce. Because of this, our law firm is experienced and well-equipped to handle these complicated divorce cases. We maintain full awareness of specific laws, rules, and regulations involved in divorce courts for military couples and will work diligently to represent you.

Melone Hatley, P.C. has offices throughout Virginia and Charlotte, North Carolina. Call 800-479-8124 today to schedule an appointment, or use our stress-free online contact form to get in touch. We also offer online resources, including downloadable eBooks and advice videos for your convenience.

Rebecca Melone

Written By Rebecca Melone

Rebecca Melone established Melone Hatley P.C. in 2014 with the goal of helping families with a range of legal services from estate and family law to traffic tickets and misdemeanor criminal matters.
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