Divorce Rules for Dividing a Military Pension

By Debbie Gregory.

Without question, divorce is traumatic for any family. The division of assets is handled differently in every divorce case, and also depends on the law of the state where the divorce case is pending. A service member’s military pension/retired pay can be a valuable asset in a divorce, legal separation or dissolution of marriage.

In 1982 Congress passed the Uniformed Services Former Spouse Protection Act, which allows state courts to treat disposable retired pay either as property solely of the member, or as property of the member and his spouse in accordance with the laws of the state court. But there is no concrete rule in the act to determine the appropriate division of retired pay.

A state court can divide retired pay in any way it chooses (subject to the laws of that state). All 50 states treat military pension as marital or community property. And the state court can award a share of the military retired pay to a former spouse of military member, regardless of the length of the union.

With that said, the Department of Defense can only make direct payments of a military member’s retired pay to the former spouse if the former spouse was married to the military member for a period of at least 10 years, with at least 10 years of the marriage overlapping a period of military service creditable to retired pay.

Additionally, the DoD cannot make direct payments if the division of retired pay is in excess of 50 percent, or 65 percent if alimony or child support is paid in addition to division of retired pay.

While disability pay is not subject to division as property, it is subject to garnishment for alimony or child support.

Before a court can grant a divorce to military members or spouses, it must have “jurisdiction” or the authority to hear the case. For civilians, jurisdiction is generally the place where the person lives. However, for military personnel, jurisdiction may be the place where the person holds legal residence, even if the service member is stationed somewhere else.

If the marriage lasted at least 20 years and the service member had at least 20 years of creditable service, and there was at least a 20-year overlap between the marriage and the military service, the former spouse is allowed to retain all military benefits and privileges, including medical, commissary, military exchanges.

Military Connection salutes and proudly serves veterans and service members in the Army, Navy, Air Force, Marines, Coast Guard, Guard and Reserve,  and their families.