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Dividing military retirement pay in divorce

Many aspects of military divorce are unique, including what happens to military retirement pay.

Serving in the United States military requires sacrifice on a number of levels. Not least among these is the need to be away from home and family for an extended time. This can take a toll on families, which is perhaps why, according to the Defense Department, the divorce rate among military couples rose steadily since the U.S. began its war in Afghanistan and is now significantly higher than in the civilian population.

Divorce is not easy for anyone, and this is especially true for military couples. Unique considerations must be taken into account. One of these is the retirement benefits given to service members.

The Uniformed Services Former Spouses' Protection Act

Retirement pensions or investments are often one of the largest assets in a person's name. For service members in any of the U.S. Armed Forces, it is likely that military retirement pay is a significant asset. The Uniformed Services Former Spouses' Protection Act addresses this by recognizing the right for state courts to distribute retirement pay as an asset in divorce and allows enforcement of those orders through the Department of Defense.

The USFSPA does not require that retirement pay be divided in divorce. Instead, the USFSPA treats military retirement pay as if it was a civilian 401(K) or other retirement account. If a state court then divides retirement pay, either as a fixed dollar amount or a percentage of the pay amount, that court order is legally enforceable.

Under the USFSPA, the former spouse can also be eligible for death benefits should the retired service member pass away. However, it does not do so automatically; this must be negotiated in the divorce and the former spouse must elect coverage from a military finance center within one year of the final divorce decree. A former spouse can also continue health care coverage on the service member's plan, provided that he or she meets the eligibility requirements.

Number of years served and number of years married matter

The USFSPA does not apply in all situations. In order for a court to treat military retirement pay as an asset to be divided in divorce, the service member and former spouse must have been married for 10 years or more, and the service member must have performed at least 10 years of military service. In order to be eligible to receive continued health care coverage, a former spouse must have been married to his or her spouse for 20 years, that spouse must have served for at least 20 years, and the marriage must have overlapped time served for 20 years. This is the “20/20/20” rule.

An experienced military divorce lawyer can help

This brief overview of dividing military retirement benefits does not necessarily account for individual needs for service members and their spouses going through divorce. Many aspects of a military divorce require special consideration, retirement and other benefits being only one of them.

For help in navigating a military divorce, contact the experienced attorneys at the Cody Law Firm to discuss your specific legal needs and goals.

Keywords: Military divorce, retirement pay, property division.

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