Dividing military retirement pay


There are additional issues to consider when one or both parties are members of the United States military during a divorce.  Among the most common concerns is how to divide the servicemember’s retirement pay. 

This information is generally provided for information reasons only and is not intended to be substituted for legal advice as it is not tailored to specific situations, only general information.

How are military retirement benefits distributed during a divorce?

Retirement benefits are distributed by The Uniformed Services Former Spouses’ Protection Act (USFSPA), which allows disposable retired pay to be divided as martial property upon divorce.

How is military retirement pay distributed in Idaho?

Idaho is a community property state, meaning  that a spouse is entitled to a portion of the servivcemember’s retirement benefits at the time of the divorce.

How much of his/her retirement pay can be awarded to a military spouse?

The court can only divide the “marital portion” of the pension, that is, the portion that was earned during the marriage. The remaining portion, (earned before marriage or after divorce) is separate property. In addition, no more than half of the pension can, under most circumstances, be divided. Many states presume an equal division of all marital property, including retirement rights.

Other than this, there is no way of telling how much marital property will be awarded or how much of the pension will be granted to you.

What is disposable retirement pay?

Disposable retired pay is the total monthly pay to which a retired servicemember is entitled, less:

  1. Amounts owed to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay.
  2. Forfeitures of retired pay ordered by court-martial.
  3. Amounts of retired pay waived in order to receive compensation under Title 5 (federal civilian employment) or Title 38 (Department of Veterans Affairs) of the United States Code.
  4. The amount of the member’s retired pay under 10 U.S. Code Chapter 61 (Retirement or Separation for Physical Disability) computed using the percentage of the member’s disability on the date when the member was retired (or the date on which the member’s name was placed on the temporary disability retired list).
  5. Premiums paid as a result of an election under 10 U.S. Code Chapter 73 (Survivor Benefit Plan) to provide an annuity to a spouse or former spouse to whom payment of a portion of such member’s retired pay is being made pursuant to a court order.

Is there a maximum amount that I can receive?

 

The USFSPA limits retirement pension division awards to 50 percent of the net retired pay, regardless of whether the pay is awarded as child support, alimony, or marital property to be directly paid from the finance center. There are certain exceptions in the event of multiple court orders involving different spouses.

What can I do if my ex-spouse is ordered to pay more than the maximum allowable amount under the USFSPA?

If this happens, DFAS cannot help you. If there is no exception in USFSPA, then you will need to take action directly against your former spouse through the courts for amounts in excess of 50 percent of his disposable retired pay.

Can child support or spousal support be deducted from a former spouse’s retirement pay?

Yes. To get direct payment from DFAS for alimony or child support, there needs to be a court order requiring the payment of child support or alimony. The court order should state that the award is made as direct payment of retired pay. The court order and/or other documents served with the court order must identify the servicemember concerned and, if possible, state his/her Social Security Number

How do I receive payment of an awarded amount of military retirement pay?

The “10-year test” must be met to receive direct payment. The former spouse must have been married to the servicemember for at least of 10 years, during which the member performed at least 10 years of creditable service for retirement purposes. Further, there must get a court order specifically stating that the award shall be made as direct payment of retired pay. If these conditions are met, then you can get monthly checks from DFAS.

What happens to the awarded amount if I die?

Payment of a portion of military retired pay end upon death. Payments cannot be made to your estate, survivors or heirs.

What if my former spouse dies? Can I still continue to receive payments?

In the event the servicemember dies, the person receiving the award shall receive no further benefits unless the Survivor Benefit Plan (SBP) has been elected by the servicemember. Payments will continue if SBP coverage has been chosen (but not necessarily in the amount of payments under USFSPA). The court can order a spouse to provide SBP coverage for the former spouse.

Additional information can be found here.