Couples that include a service member often have unique concerns to deal with when it comes to the law and their marriage. This is especially true in divorce. Our New York military divorce attorney wants you to be informed about what you’re potentially entitled to during a divorce from a service member.
Read below for more information.
The Basics of Military Pension Division
After 20 years of military service (or after earning the requisite amount of “points” if enrolled in the National Guard or the reserves), service members are entitled to a pension upon retirement. Also called “retired pay,” this pension has a fixed value and provides relief to retired service members from leaving the military until death.
Thanks to the Uniformed Services Former Spouse Protection Act, divorce courts are allowed to divide a military pension for the purposes of child support, spousal support, or property settlement. The USFSPA does not require division, but it does allow it. Each state is given the freedom to divide military pension according to that state’s divorce laws. Because it is not required, the law makes it vital for every spouse to seek a divorce attorney with military divorce experience.
If 100% of the pension goes to the service member, then the other spouse ought to be compensated for their share of the value of the pension.
Ultimately, a military pension is a high-value asset. Even if retirement is years (or decades) away, your spouse’s pension has to become part of the divorce agreement. Otherwise you’re leaving money on the table—money you may need to help raise your kids, to build or rebuild your career, to go back to school, or to ensure a fair divorce. It’s likely that if you don’t bring up the pension during divorce proceedings, you’ll never be able to address it again.
The 10-Year Military Divorce Myth
There’s no requirement or prerequisites for receiving a portion of your spouse’s military pay. Many people wrongfully believe that you have to have been married to your spouse for 10 years of their military service in order to receive pension benefits. This is not true.
What the USFSPA actually says is this: if your marriage overlapped with 10 years of your spouse’s military service, and their pension is being divided as part of a property settlement, then you are eligible to receive your share of the pension payments directly from the DFAS (the Defense Financing & Accounting Services).
This provision has nothing to do with your right to receive retired pay.
Military Pension & “Disposable Pay”
The USFSPA makes it clear that only disposable pay is up for division. In practical terms, that means pay that isn’t designated as disability benefits. Upon retirement, your spouse has the option to ask for disability benefits in exchange for an equivalent portion of their retired pay. They waive their right to a certain amount of the pension (thus waiving a portion of your entitlement as well).
Obviously, this process requires a great deal of accountability and integrity. If you feel that your spouse might be waiving more of their pension than they need in order to keep a larger portion of their benefits, you’ll need to consult a military divorce lawyer.
Have any more questions about military pension and divorce? Contact an experienced New York military divorce attorney—call Peter L. Cedeño & Associates, P.C. at (212) 235-1382 today.