Couples who divorce must divide marital assets, which can include retirement benefits. However, when one or both spouses served in the military, the marital estate can include military retirement benefits. When you or your spouse has military retirement benefits, knowing how federal law and state divorce laws treat those benefits can help you protect your financial interests. An experienced attorney can review the facts of your case to ascertain your right to military retirement benefits in divorce.
How Military Retirement Benefits Are Treated in Divorce
Like civilian retirement benefits such as pensions, 401(k)s, and IRAs, military retirement benefits can qualify as a marital asset when a veteran earned all or a part of those military retirement benefits during their marriage. Thus, when a couple with veteran spouses gets divorced, a spouse’s military retirement benefits may become part of the property division process in divorce if those benefits qualify as a marital asset. However, the division of military retirement benefits depends not only on state divorce law but also on federal law – specifically, the Uniformed Services Former Spouses’ Protection Act.
The 10/10 Rule: Direct Payment Eligibility
Under federal law, the military can make direct payments of a spouse’s marital share of a veteran’s military retirement benefits under certain circumstances. Specifically, the 10/10 rule permits direct deposits to a spouse awarded a share of their other spouse’s military benefits if the couple’s marriage lasted for at least ten years and the veteran served in the military for at least ten years during the marriage. The 10/10 rules do not govern whether a state court can divide a veteran’s military retirement benefit in divorce, only whether the federal government can make direct deposits to a spouse awarded a share of a military retirement benefit in divorce. When a couple’s marriage does not meet the 10/10 rule, the couple must arrange for the veteran spouse to pay the other spouse their share of the retirement benefit directly.
Calculating the Spouse’s Share
Courts may use various formulas to determine a spouse’s share of the other spouse’s military retirement benefit. These formulas typically account for the number of months that the couple’s marriage overlapped with the other spouse’s military service, the total number of months the other spouse served in the military, the marital share of the total disposable retired pay, and the percentage awarded to a spouse under equitable factors (in equitable distribution states) or the spouse’s equal half of the marital share (in community property states).
Sometimes, couples may negotiate offsets or trade-offs of other marital assets equivalent in value to a spouse’s share of the military retirement benefit, such as real estate, stocks, or cash, to avoid dividing a veteran’s military retirement pay.
Survivor Benefit Plan (SBP) Considerations
In certain circumstances, couples must consider the applicability of the Survivor Benefit Plan, which continues benefits to a spouse if a servicemember dies first. Under the SBP, divorce terminates a former spouse’s coverage. However, if authorized in the divorce decree, a former spouse can secure continued SBP coverage through the filing a deemed election form within one year of the date of the final divorce decree. A couple’s divorce decree may require a military retiree to make such an election. However, electing coverage for a former spouse precludes coverage of a retiree’s new spouse.
Contact a Military Benefits Attorney Today
When a couple where one or both spouses served in the military decides to divorce, their divorce proceedings may involve determining each spouse’s respective rights to military retirement benefits. Contact Patriots Law Group today for a confidential consultation with a military family law attorney to learn more about what happens to your or your spouse’s military retirement benefits if you get divorced.