Retired Military Divorce - Division of Pension

Understanding a Retired Military Divorce

We've seen in earlier articles how certain aspects of Military divorce such as medical insurance via tricare and Survivor Benefit Plans (SBPs) work. However, let's take a look at fundamentals and understand how military retirement pay is divided during a divorce from the ground up.

Like any regular divorce, courts can order one spouse to pay the other a certain amount either for Child Support, Property Division, or for alimony. When the paying spouse is in military service, such payments can be routed through the government. Specifically the Department of Defense (DoD). The Uniformed Services Former Spouses' Protection Act (USFSPA) defines how this enforcement takes place, and what the limitations and procedures are.

The relationship between the USFSPA and local state regulations is complex, with the former placing restrictions as to how much pay can be disbursed and laying down circustances when it cannot be paid at all. In order to make sure you don't go wrong, you must hire a Colorado Springs Military divorce attorney to lead you through it.

Splitting Retired Pay

Retired pay of a Service Member (SM) can be split only with a court order. The USFSPA doesn't have the authority to withhold anything without one. The court can order either a fixed amount, or specify a percentage of the pension to be split. In the latter case, only the disposable pay is taken into account for calculation purposes.

One very important aspect is the 10-10 rule. Unless there is an overlap of at least 10 years between the service of the SM and the marriage, the retired pay division cannot be enforced by the DoD if it's a property division.  This doesn't mean that the pay cannot be split. Only that the former spouse must make arrangments to get paid through the SM rather than automatically via the government.

Also, the court must have the proper jurisdiction in order to divide the retired pay. Without it, any orders regarding the pay cannot be enforced. Under the USFSPA, not more than 50% of an SM's pay can be disbursed. In case more is required under a section known as 42 U.S.C. 659 regarding garnishment for child support or alimony, it can never exceed 65% under any circumstances.

Hiring a Colorado Springs Military Divorce Attorney

The USFSPA is complex and the interaction with local state law make it doubly so. You can't handle a military divorce by yourself or you could be put at a terrible disadvantage. Our Clawson & Clawson attorneys know how to ensure that you don't get cheated out of your rights. Contact us for a free initial consultation.