Illinios Law Concerning Divorce & VA Pension

by Melanie Jo Triebel
Although a service member earns an individual pension, that pension is often considered a joint asset.

Although a service member earns an individual pension, that pension is often considered a joint asset.

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Pensions can be one of the most contentious issues in the division of property in a divorce. In addition, they are often one of the most misunderstood aspects of the marital estate. However, Illinois law -- in combination with federal law -- provides clear guidelines for dealing with VA pensions in the event of a divorce.

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Federal Law

Federal law permits a state court to treat a VA pension as a marital asset, and to divide that asset upon divorce. The federal government can also pay up to 50 percent of a military pension directly to a retired spouse, if so ordered by an Illinois court. Thus, Illinois courts are free to order the division of a VA pension in a divorce.

Illinois and VA Pensions

Illinois courts use VA pensions in a divorce in a couple of different ways. First, the portion of the VA pension that was earned during the marriage is treated as a marital asset, and that portion of its value will be apportioned or awarded in the divorce. The court will first let the divorcing spouses try to reach a property settlement themselves: if they fail to do so, the court will do so for them. Second, the court considers the VA pension as one source of income, which, together with other factors, figures into whether the court awards spousal or child support, and how much.

Division of VA Benefits in an Illinois Divorce

Illinois courts do not necessarily divide the marital estate, including VA benefits, equally between spouses. Instead, Illinois courts seek to divide property fairly, using "equitable distribution." Thus, the court will consider such factors as your age, your health, how long the marriage lasted, your income and employability, who will be caring for any minor children, and any other relevant factors. The court then divides the marital property, including the VA pension, in a way it deems fair.

Eligibility for Benefits Directly from the VA

A divorcing spouse may be entitled to receive her share of her spouse's VA pension directly from the government, if she satisfies the "ten-year-test." If the marriage lasted at least ten years, one spouse served in the military for at least ten years, and there were at least ten years where the two were married while one spouse served in the military, the test is satisfied. When the ten-year-test is satisfied, the ex-spouse is entitled to receive VA benefits directly. If not, her ex-spouse needs to pay her the portion of the VA benefits which she is awarded.