While the divorce process in general is the same for servicemembers and civilians, there are some unique challenges when one of both spouses serve. One of the more complicated parts of the military divorce process is determining how, and which, specific military benefits will be split or divided among the parties involved. For couples who have been married a long time, the most pressing concern is typically the military pension.
According to USAGov, there are a few different military pensions that one may be eligible for, including:
- Blended Retirement System: This retirement plan is for active duty servicemembers. If you qualify, the government will match the money you contribute into the plan by up to 4 percent. You will also receive money based on “an average of your highest 36 months of basic pay.”
- Legacy or High 36 Retirement System: This plan is also based on your highest three years of basic pay. However, the government will not match any of the contributions you put into the account. You must be an active duty servicemember to qualify for the legacy or high 36 retirement system.
- Retirement plan for reserve servicemembers: If you were in the Reserves, you will start getting your retirement pension when you turn 60 years old. However, depending on how long you served on active duty, you may be able to receive your pension sooner than 60.
- Retirement plan for servicemembers who have disabilities: If you are considered at least 30% disabled in any type of way and served in the military, you may qualify for this type of retirement plan.
- Pensions for survivors and veterans who have low income: Individuals who served in the military and have a low income may be eligible for a pension plan. This plan is for individuals who are veterans and those who did not retire from the military. However, if you did not retire from the military, you must have served in a war, never received a dishonorable discharge, and have a low income to qualify.
Is dividing military retirement plans different from civilian divorces?
Texas is one of nine community property states. This means any property obtained by a couple throughout their marriage, and any prior assets that have been commingled, can be equally divided between both spouses. This generally includes pensions – including military pensions – though the rules are a bit different.
One of the most important federal regulations established by Congress is the Uniformed Services Former Spouse Protection Act (USFSPA). This Act was put in place to address property and retirement division in military divorces. The USFSPA “requires the Secretary of the military department concerned to pay from the military pension subject to court order of the member or former member of a uniformed service to a spouse or former spouse the amount specified in a court’s final decree of divorce, dissolution, annulment, or legal separation.” In other words, the USFSPA gives Texas the permission to consider military retirement pay as marital property.
The pension is also subject to the 10.10 rule. Per the American Bar Association:
State law determines how and to what extent a military pension is a marital or community property asset divisible upon divorce. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), the 10/10 rule governs the method of payment. At least ten years of marriage overlapping at least ten years of military service is needed for direct payment from the retired pay center, usually the Defense Finance and Accounting Service (DFAS). If the marriage does not meet the requirements of this rule, then the spouse may obtain a division of retired pay but not a direct payment from the pay center.
In other words, you only get a direct payment if you meet the criteria of the 10/10 rule. There are a few other important differences when it comes to dividing military pensions as part of a divorce:
- The USFSP only applies to disposable retired pay – AKA, what’s left over after deductions have been made.
- You can be granted a portion of the pension no matter how long you were married. Married for one year, one decade, or three decades – in all these examples, you may be entitled to a share of the pension.
- If you were married for a long time while your spouse was in the service, you may be entitled to up to 50% of the pension.
- The “frozen benefit” rule may apply if you or your spouse is currently serving in the armed forces or the commissioned corps of the Public Health Service and the National Oceanic and Atmospheric Administration. The rule “requires that the military retired pay to be divided will be that attributable to the rank and years of service of the military member as of the date of divorce.”
- If the 10/10 conditions cannot be met – and if you’re on good terms with your soon-to-be-ex – you could set up an “allotment,” which is essentially a payroll deduction. This is not necessarily the best option as it’s subject to your spouse’s discretion, but it is an alternative that allows for direct payment.
This is very different compared to civilian divorces. In a civilian divorce, the spouses can file a Qualified Domestic Relations Order (QDRO) to split the retirement assets obtained during their marriage regardless of how long the marriage lasted.
How long will my ex-spouse receive pay from my pension after our divorce?
If the courts grant your ex-spouse part of your pension or retirement payment, they will be eligible to receive this pay until either of you pass away. Remarriage by either party does not affect payment.
Can you help me keep my full military pension?
At Grable Grimshaw PLLC, our goal is to help you keep what’s yours – and that includes your military pension. Our partners have extensive experience working with servicemembers who call Texas home, and are intimately familiar with the state and federal laws which regulate pension division. We can argue that you deserve your full pension, or help you negotiate an agreement where you keep your pension in exchange for other assets.
Military divorces can become complicated very quickly. However, the San Antonio divorce lawyers at Grable Grimshaw, PLLC are equipped with the knowledge and experience to help make this process less confusing and stress-free for you. Call our office or submit our contact form to schedule a case review to ensure that you receive the best outcome possible for your case.