Many complex decisions must be made during a divorce, including dividing joint property. Military pensions can be divided during divorce because they use marital assets to fund the retirement plan. Continue reading and work with a York County, PA divorce attorney for more information on your rights and obligations.
How Are Military Pensions Divided in a Divorce?
The way that military pensions get divided in a divorce is governed by both federal and state laws. Under the Uniformed Services Former Spouse Protection Act (USFSPA), military retirement pay is considered divisible property. It can be treated like marital assets and distributed between spouses during a divorce.
During a divorce both spouses must present evidence of their financial and other assets, both jointly and separately owned. The property considered jointly owned will be divided equitably between the two parties depending on various factors. A court may award the non-military spouse up to 50% of the pension but the actual amount they decide on will vary depending on the specific circumstances of each spouse.
How Long Do I Have to Be Married to Get Part of the Pension?
There is no minimum amount of time that the marriage is required to last for a former spouse to be considered eligible to receive the pension. Whether the marriage lasted one year or thirty, the non-military spouse still has a claim to a portion of the retirement benefits.
How Will the Pension Be Distributed?
While the length of marriage doesn’t have any bearing on a spouse’s eligibility to receive the pension, it will affect how they are given the money. Once the military spouse retires, the government will start sending monthly pension checks through the DFAS (Defense Finance Accounting Service).
If the marriage lasted for at least 10 years and 10 or more of those years overlapped with the military member’s service, the non-military spouse is entitled to receive payment directly from the DFAS. Each spouse will be issued their own check. If the relationship does not meet those requirements, however, the total amount will be issued to the military spouse who will then be responsible for paying their ex the amount they are owed. This is referred to as the 10/10 rule.
What is the Frozen Benefit Rule?
The frozen benefit rule states that divorced spouses of military members are only entitled to up to 50% of the pension that the military spouse would have received at the rank they held during the marriage. In simpler terms, this means that whatever rank the military member was when they got divorced is the rank that the non-military spouse’s pension will be calculated.
A military pension is based on a percentage of the service member’s salary. If they retire while holding the rank of General, their pension will be significantly higher than if they retired as a Second Lieutenant. However, if Second Lieutenant is the highest rank they held while married to their ex, then their former spouse can only receive 50% of what the pension would be at that lower rank.
