Are Military Assets Divided in Divorce?

There are many misconceptions surrounding military divorces, and the spouses of military personnel may have several financial fears when considering divorce. Here, the family law attorneys at Rodier Family Law provide a general overview of divorce proceedings for military members and their spouses.

Congress passed the Uniform Services Former Spouse Protection Act (USFSPA) in 1982, which allows disposable retired military pension to be treated either as the sole property of the military member, or as joint property of the military member and their spouse, depending on the laws of their state court. Since the creation of this act, all 50 states now treat military pension as marital or community property, meaning that it can be divided however the court, military member and their spouse decide upon.

Although many believe that retired military pay only becomes marital property after a marriage has lasted at least ten years, this is not the case. A state court is able to award a portion of a military member’s retired pay to a spouse who has only been married to the military member less than a year. However, the Department of Defense will not make direct payments of the military member’s retired pay to a former spouse unless they were married for at least 10 years, with at least 10 years of the marriage overlapping with a period of military service that is creditable to the military member’s retired pay. Direct payment will also not be made if a former spouse is receiving more than 50% of the retired pay, as well as child support or alimony. In these instances, the military member would pay their former spouse directly.

Spouses who were married to military members for longer periods of time may be entitled to additional benefits upon divorce. If the marriage lasts for more than 20 years, the military member had at least 20 years of creditable service and there was at least a 20-year overlap between the marriage and service, the spouse will be entitled to all military benefits and privileges—this includes medical, commissary and military exchanges. Those who are married for at least 15 years, with 15 years of service overlap, will be entitled to one year of transitional medical benefits, which will be terminated if the spouse obtains employer-sponsored healthcare, or if they remarry.

It is important to note that the rules of the USFSPA can only apply if the state court has jurisdiction over the military member. Examples of jurisdiction include:

  • That their permanent residence—not their residence based on military assignment—is in the territorial jurisdiction of the court
  • That their domicile falls within the jurisdiction of the court
  • That they have given their consent to the court in question

So, if a spouse files for divorce in a state where the military member does not have permanent residence or a domicile, the military member must provide their consent to that court. Otherwise, the divorce will have to be filed with the court that presides over the jurisdiction where the military member lives permanently.

Military divorces can be much more complex than a traditional divorce, and as such retaining the help of an experienced family law attorney is critical. The attorneys at Rodier Family Law know that filing for divorce is a difficult and sensitive process—let us help make it a little easier. For more information about how we can help, contact us today.