Divorce is tough on everyone, whether you’re a civilian or in the military. If you’re a military member, it’s important to understand how divorce will impact your pay. There are unique laws and factors in a military divorce that can affect how you split your assets, including your pay and retirement pay.
This article helps answer some of your questions as you navigate divorce proceedings. Remember, divorce laws vary by state, so this is only general info and not legal advice. Always consult a lawyer for specific questions about your situation.
Key Points:
- There’s no set rule for dividing military pay after a divorce. It’s negotiable and decided by the courts at the state level. It can be settled as a fixed dollar amount or a percentage of your disposable retired pay.
- The USFSPA allows the Department of Defense (DoD) to enforce payment when court orders award a portion of a military member’s retired pay to a former spouse.
- Factors influencing pay division include the length of the marriage, state and federal laws, and each party’s financial situation.
Understanding the USFSPA
Before you start the divorce process, it’s important to understand The Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. 1408. This federal law, enacted on September 8, 1982, lets state courts distribute military retired pay to a former spouse.
The USFSPA doesn’t automatically award your ex a portion of your retired pay, though. Rather, it provides a method for enforcing payment through DFAS if a court orders a portion of retired pay to a former spouse. This allows the pay to come directly out of the servicemember’s paycheck rather than made manually by the servicemember. It also helps to enforce court-order child support or alimony.
However, it doesn’t decided if a former spouse recieves any portion of pay; that is still decide by state courts. So, this law is more about who pays the ex-spouse and not about if the ex-spouse gets paid.
Dividing Retirement Pay
Once you’ve served 20 years and are eligible for retirement pay, that pay can be treated as property not income and divided during a divorce. Contrary to some beliefs, the USFSPA doesn’t mandate a specific percentage of your retirement pay to go to your spouse. It’s negotiable, allowing for a fixed dollar amount or a percentage of your disposable retired pay, which courts decide during divorce hearings.
If the ex-spouse is awarded more than 50%, the USFSPA covers only 50%, and the servicemember must cover the rest. This means that the first 50% will be paid directly to the ex-spouse from DFAS, coming directly out of the servicemember’s paycheck. Servicemembers will never see that portion. However, the amount exceeding 50% needs to be paid manually from the servicemember’s own bank account.
Taxing Retirement Divisions
Since military retirement pay division payments are taxable, DFAS withholds taxes on these payments and sends an IRS Form 1099-R to the former spouse, who must include the payments in their gross income come tax season.
Jurisdiction in Divorce Proceedings
Jurisdiction in military divorces is usually based on the servicemember’s legal residence rather than where they’re stationed. Jurisdiction is crucial because state laws differ on asset division, child custody, and spousal support. The right jurisdiction ensures a fair and equitable resolution.
The 10/10 Rule
Many believe the 10/10 rule means spouses are ineligible for pay unless married for 10 years. This isn’t true. The 10/10 rule allows a former spouse to receive their court-ordered portion of retirement pay directly from DFAS if married for 10 years or more, during which the member performed at least 10 years of military service creditable towards retirement eligibility, so the 10/10 rule means 10 years of marriage that overlaps 10 years of creditable service toward military retirement. If these aren’t met, then the servicemember must pay the former spouse instead. The 10/10 rule only affects who sends a former military spouse a retirement check, not whether or not they’re eligible to receive one.
Again, years of marriage and service have no bearing on the amount a spouse can receive from retirement pay. That number is settled in the courts. For example, a civilian spouse can ask for half of the military spouse’s pension even if they were married for less than 10 years. They can also ask for less, even if they were married for over 10 years. Retirement pay is completely negotiable between the two parties in a divorce. Even if a spouse was married to a military member for 20 years, they might decide to ask for real estate ownership instead of pursuing a portion of their military spouse’s retirement pay.
Child Support Payments and Alimony
Each military branch has its own policies on child support and alimony, and a military commander has limited authority to enforce these payments without a court order. If a former military spouse has been granted court-ordered child support or alimony payments, the USFSPA ensures DFAS directly makes these payments. DFAS can garnish pay to meet these obligations.
Other Military Retirement Benefits During a Divorce
Spouses may also be entitled to other military retirement benefits outside of retirement pay. For example, the Military Thrift Savings Plan (TSP) is a divisible asset in divorce, just like civilian retirement accounts. A court order will specify the division, either as a percentage or a fixed amount. The order must comply with Federal Retirement Thrift Investment Board requirements.
Divorce can also impact other military benefits, including:
- Tricare health benefits
- DoD military card access
- Commissary and exchange shopping privileges
- Certain military discounts
You can learn more in our guide to military benefits for divorced spouses.
Military Disability Pay and Divorce
USFSPA excludes military disability pay from division in divorce since it compensates service-related injuries. However, disability pay can impact financial settlements by reducing available retirement pay. So, courts may consider disability pay when determining spousal support or alimony to ensure fair resource distribution, meaning military disability pay won’t be directly pulled from, but a portion may be awarded to the former spouse and paid through military retirement pay.
Learn how VA disability compensation affects military retirement pay.
Is CRDP or CRSC Divisible in Divorce?
The Concurrent Retirement and Disability Pay (CRDP) and Combat-Related Special Compensation (CRSC) programs allow eligible servicemembers to collect VA disability pay and military retirement pay at the same time. CRDP is subject to division in divorce, but CRSC is not.
However, both CRSC and CRDP can be garnished for child support payments.
Factors Influencing Military Retirement Pay Divisions
Several factors influence if and how military retirement pay is divided in divorce:
- Length of the marriage and overlap with military service
- State laws on property division and spousal support
- Financial circumstances of both parties
- Whether the servicemember receives military disability pay
Prenups
Prenuptial agreements can significantly impact the division of military retirement pay. A prenup can outline how assets, including retirement pay, will be divided. Courts generally uphold prenups if entered voluntarily and fairly. Legal advice is crucial when drafting and signing a prenup to ensure it protects your interests and complies with legal standards.
How Military Retirement Garnishment Works
Here’s a general process for dividing military retirement pay after a divorce:
- Consulting Legal Experts: Both parties typically consult attorneys specializing in military divorces to understand their rights and obligations.
- Determining Jurisdiction: Establish which state has jurisdiction based on legal residence and where the divorce is filed.
- Gathering Necessary Financial Information: Collect all financial details, including military retirement pay and benefits.
- Drafting the Divorce Decree: Create a draft specifying the division of military retirement pay, meeting DFAS requirements for direct payments.
- Court Approval & Submission to DFAS: Submit the decree for court approval. Then, send the necessary forms to DFAS for processing.
- Implementing Division: DFAS processes the order, and direct payments to the ex-spouse begin. This can take several months.
- Monitoring and Ongoing Adjustments: Monitor payments and stay informed about any changes. Revisit court orders if circumstances change.
It’s Important to Find a Specialized Divorce Lawyer
If you’re in the military and going through a divorce, find a lawyer who specializes in military divorces. They should have experience and a deep understanding of military divorce laws. Interview potential lawyers about their experience to ensure they can effectively represent you, and don’t hesitate to interview and consider multiple lawyers.
Try to Settle Outside of Court
Divorce can be tough, but if you can split amicably, you’ll have more flexibility in negotiations. Keeping things friendly helps everyone involved and gives you more say over your pay. A court order for payments or property division means you must comply or face garnishment.
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Lserr72 says
I was married to my ex for 16 years, who is now retired and remarried. I currently get 30% of his retirement. I have not re-married as of yet. If I do get remarried will I lose that 30% retirement pay I get?