Military Retirement Pay & Divorce

By Beverly Bird

Military divorces are a unique legal area with several federal considerations. When it comes to retirement benefits, however, Uncle Sam takes a step back and allows individual states to rule on dividing them in a divorce. The federal government is still involved, but it defers some decisions to state courts.

State Jurisdiction

Although military retirement pay originates from the federal government, the law considers it a marital asset. Therefore, it falls to state courts to apportion it in a divorce. To do this, the state must have jurisdiction over both spouses. The spouse who files the divorce complaint must attest in the complaint that she’s met her state’s residency requirements; this gives the state jurisdiction over her. The court achieves jurisdiction over the other spouse through process of service, when he’s officially given a copy of the divorce complaint. If he is serving in the military and is deployed overseas, he must generally consent to service. If he's retired, however, he would be served as a civilian. After service is completed and jurisdiction is accomplished, the laws of the state where the complaint was filed apply to all property distribution, including military retirement pay.

Impact of State Laws

When a state court divides a service member’s retirement pay in a divorce, some states require him to begin writing a check to his spouse each month for her share before he has retired. In these states, the non-military spouse’s benefits kick in when the service member is eligible to retire, not when he actually does. He may end up making payments before he begins receiving retirement pay.

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Child Support and Alimony

If a service member is already retired when he divorces, and if he is already receiving his retirement pay, state courts have the right to treat this as regular income for child support and alimony purposes. Child support may be payable through garnishment of retirement benefits, especially if the noncustodial parent falls behind in making payments.

Defense Finance and Accounting Service

Although the federal government doesn’t dictate how the court should apportion retirement pay, it might become involved with how the nonmilitary spouse receives that pay. With long-term marriages of 10 years or more, if the military spouse served during 10 of those years, the federal Defense Finance and Accounting Service will write the nonmilitary spouse a check each month for her portion of the service member’s retirement pay, if she requests it. Otherwise, the service member must take care of the payments himself.

Survivor Benefit Plan

A nonmilitary spouse may have the right to continue as beneficiary of a service member’s survivor benefit plan annuity after he’s retired. Normally, divorce would eliminate her as beneficiary if the service member named her as such before the final divorce decree. But if spouses agree in a divorce settlement that she should remain as beneficiary, or if a judge orders it, she can continue by changing her status from “spouse” to “former spouse.” The federal government will honor this.

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Disability in a Military Divorce

References

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Military couples cannot get divorced by military courts, so they must get their divorces in state courts. Since divorce laws vary between states, alimony may be awarded in one case but not in a similar case in another state. Alimony amounts may also vary according to each state’s laws, though federal law caps the amount a state court can take from a military member’s wages.

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