"The maximum amount of pension income an ex-spouse can receive is 50 percent of the military retirement pay."
When a member of the military is in the process of getting a divorce, several concerns become apparent. The Uniformed Services Former Spouses’ Protection Act (USFSPA) addresses many of these concerns.
The USFSPA authorizes (but does not require) State courts to divide military retired pay as a marital asset or as community property in a divorce proceeding.
It also provides a mechanism for a former spouse to enforce retired pay as property awarded by direct payments from a military member’s retired pay. It’s important to note that retired pay as property payments are prospective only and that retired pay debts cannot be collected under this act.
A previous article discussed the importance of protecting a military member’s Survivor Benefits Plan (SBP) during divorce proceedings, but pension also becomes a discussion point. The maximum amount of pension income an ex-spouse can receive is 50 percent of the military retirement pay.
There are three methods in calculating an ex-spouse’s share of pension: net present value, deferred distribution, or reserve jurisdiction.
- Net present value commonly occurs if a military member or their ex-spouse wants a buyout up front.
- Deferred distribution refers to a shared amount calculated at divorce. However, the receipt is deferred until the retirement of the military member.
- Reserved jurisdiction is the most common method, where the share an ex-spouse receives is calculated at the time of retirement.
The tough question
When custody is an issue, many military lawyers have to ask their clients a tough question during divorce proceedings: What is the most important to you? Is it the kids, the pension or the spousal support?
Depending on deployment status and the amount of children, this question can make or break a military divorce. From the perspective of a member of the military, deployment status can prevent sole or primary custody and limit visitation status, causing child support payments to rise.
Housing can often present an issue. If a member of the military no longer has primary custody of his/her children, then the children no longer qualify for military housing, causing the ex-spouse and children to seek housing off-post.
In addition, rent, car payments, utilities, food, and child care also can arise, causing one party to file a motion for a court order to state how they spend their bills during their separation period.
Divorce is not a decision made lightly, and many couples attempt to reach an amicable resolution to their problems through various programs like counseling. However, for some branches, specific programs just are not available.
The Army has programs to improve one’s marriage, but none for those facing a divorce, according to a May 2016 article in Army Magazine. With the amount of soldiers getting divorced each year holding at 3 percent, the need for a program isn’t always pressing.
Right to benefits
Military couples face questions regarding their ex-spouses’ right to benefits.
If an ex-spouse was to retain his or her full benefits, he or she would have to fall under what is referred to as the 20/20/20 rule. This rule entails that the member of the military would have had to serve 20 years, the marriage would have had to last 20 years and the marriage and military service would have had to overlap by 20 years.
There also is a 20/20/15 rule, which entails an overlap of the marriage and military service by 15 years. This would mean that the ex-spouse would be given authorized military medical care for the duration of a year.
Commanding officers often act as arbiters in hearing cases and are interested in the soldier’s fulfillment of his or her obligations, dependents, remaining professional, and the soldier’s individual health.
Support services in the U.S. Army, such as Military OneSource, Army Community Services, and the area chaplain, are encouraged for those in need.
Without a formal agreement in a military divorce, the soldier becomes responsible in paying the Basic Allowance for Housing Differential, which is the difference between allowance for housing with dependents and without.
Living overseas also creates problems for military families going through a divorce, as divorce laws vary from country to country.
Additionally, the Defense Finance and Accounting Service will not honor orders from foreign courts, creating complicated issues for codependents and the future of spousal assets. Contacting an attorney from the state of legal residency is the best course of action, allowing the filing to happen in the U.S.
Throughout the procedure, military members and their spouses simply seek what they feel they are entitled to and utilize the legal resources necessary, in order to get it. The importance of understanding the parameters of what is and isn’t legally obligated during a military divorce will give comfort and peace of mind to the men and women who fight for our country.
Dan Pearce is an Online Editor for Lexicon, focusing on subjects related to the legal services of customers, Cordell & Cordell and Cordell Planning Partners. He has written countless pieces on MensDivorce.com, detailing the plight of men and fathers going through the divorce experience, as well as the issues seniors and their families experience throughout the estate planning journey on ElderCareLaw.com. Mr. Pearce has managed websites and helped create content, such as the Men’s Divorce Newsletter and the YouTube series, “Men’s Divorce Countdown.” He also has been a contributor on both the Men’s Divorce Podcast and ElderTalk with TuckerAllen.
Mr. Pearce assisted in fostering a Cordell Planning Partners practice area specific for Veterans, as they deal with the intricacies of their benefits while planning for the future. He also helped create the Cordell Planning Partners Resource Guide and the Cordell Planning Partners Guide to Alternative Residence Options, specific for seniors with questions regarding their needs and living arrangements.