Division of retirement benefits in a military divorce

Division of retirement benefits in a military divorce

| Apr 29, 2021 | Firm News

Service members who are divorcing may find that the U.S. military regulations do not follow quite the same trajectory as a civilian divorce, and it may affect how the court divides their retirement benefits. 

This is primarily due to the Uniformed Services Former Spouse Protection Act. 

Jurisdiction

Most people can divorce in Georgia after establishing residency by living in the state for six months. It is not a community property state; the courts attempt to divide marital property equitably between the spouses. (The pension is marital/community property in every state.) 

Service members stationed in Georgia can file for divorce here if that is favorable, but if another state is their legal domicile and they prefer to file there, that is an option, as well. The time and money it takes to travel back and forth may outweigh more beneficial divorce laws. 

Length of marriage

Some people believe that a spouse can only receive a portion of the military retirement benefits in the divorce if the marriage lasted 10 years or more. However, the length of the marriage actually does not affect the judge’s authority to award a portion of the benefits. 

The 10-year mark does have an effect, though. Before that mark, the service member makes the payments to the ex-spouse from his or her pay. After it — if at least some of it occurred during a period of service that contributed to the retirement pay — the Department of Defense makes direct payments to the ex-spouse. Other factors also apply to the amount and method of payment. 

More choices mean more decisions, so having an understanding of all the USFSPA provisions that apply is essential before negotiations or litigation.