Am I Entitled to Part of My Spouse’s Military Retirement or Disability Payments After Divorce?

Question from Keni, Am I Entitled to Part of My Spouse’s Military Retirement or Disability Payments After Divorce?

Answer from AI:

The division of military retirement and disability payments in a divorce can be a complex issue. The general rule is that military retirement pay can be divided as marital property, while disability pay is usually exempt. However, the specifics can vary based on several factors, including the length of the marriage, the overlap with the military service, and the laws of the state where the divorce is filed.

Military Retirement Pay

Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), military retirement pay can be divided between spouses during a divorce. The USFSPA allows state courts to treat “disposable retired pay” as marital property and divide it in a divorce decree.

However, the “10/10 Rule” applies in these cases. This rule states that for the Department of Defense to make direct payments of a retiree’s pay to the former spouse, the couple must have been married for at least 10 years overlapping with 10 years of service. If the marriage lasted less than 10 years, or did not overlap with 10 years of service, the non-military spouse may not be eligible for direct payments, although the court may still consider the retirement pay in the property division.

Military Disability Pay

Military disability pay is generally not considered marital property and is usually exempt from division in a divorce. This is based on federal law, specifically, the USFSPA, which excludes “disability payments” from the definition of “disposable retired pay”. However, when a service member waives a portion of their retirement pay to receive disability pay, it can affect the amount of retirement pay available to be divided.

State Laws and Professional Legal Advice

It’s important to note that divorce laws vary by state, and some states may have different rules for dividing military retirement and disability pay. Therefore, it’s crucial to consult with a legal professional who is familiar with the laws of your state and experienced in military divorce issues.

Resources

• The Defense Finance and Accounting Service provides information on the USFSPA and the division of military pay in a divorce.
• The Military OneSource website offers resources and support for military families going through a divorce.

In conclusion, while you may be entitled to a portion of your spouse’s military retirement pay, disability payments are typically exempt. However, the specifics can vary greatly based on individual circumstances and state laws. Therefore, it’s strongly recommended to seek professional legal advice.