While some may argue that the military may not adequately pay its service members for their value to this country, the military does provide substantial health and retirement benefits to their service members. Therefore, in military divorces, the most valuable asset is usually the military pension.
The laws and issues concerning the equitable division of a military pensions can be confusing to some, because military pensions are different than standard pensions and are not subject to the Employee Retirement Income Security Act (ERISA). Therefore, it is important that clients are well informed by their lawyers in a military divorce proceeding to ensure a fair and equitable distribution of assets during a military divorce.
Documents. Before a fair and equitable division of a military pension can occur, it first must be determined what retirement benefits are available. The documents that can be used to determine this include a Leave and Earnings Statement (for active duty members), Retirement Points Statement (for Reserve and Guard members), Retiree Account Statement (for retirees), SBP election forms, retirement orders and discharge papers, as well as Officer or Enlisted Record Briefs.
The Laws. The division of military benefits is permitted by the Uniformed Services Former Spouses Protection Act. The Act allows states to divide military retirement pay, but leaves the specifics of how to do so up to individual states. Therefore, each state may divide military benefits differently. Your attorney should understand the state law, which will determine how military benefits may be distributed in a divorce.
Marriage & Service Time. In order for a former spouse to receive military pension payments directly, the amount of time the former spouse was married to the service member is important. There must be ten years of marriage overlapping ten years of military service for a former spouse to get pension payments directly following a divorce. However, even with an overlap of less than ten years, the former spouse is still eligible to claim a share of the retired pay, but they will not be able to receive such a payment directly. Rather, the retiree will have to make the payments to the former spouse.
20/20/20 Spouses. Most importantly, if there has been 20 years of marriage overlapping 20 years of military service, a former spouse who has not re-married may qualify for full medical benefits as a “20/20/20 spouse.”
Offsets of Disabilities. Certain types of disability compensation can reduce the retirement pay that is divisible with a former spouse. The primary types of disability payments are military disability retirement pay, VA disability compensation, and Combat-Related Special Compensation. Courts cannot divide veteran disability compensation with a former spouse, and only a small part of military disability retirement pay is subject to pension division. Therefore, disability payments in military divorces are a critical factor in determining what, if any retirement payments can be made to a former spouse.