In military divorces, the division of military pension often becomes a battlefield for couples. If you currently serve in the armed forces or are retired from military service, the division of your military pension is often complex concern in your divorce settlement.
Although the Uniformed Services Former Spouse Protection Act (USFSPA) doesn’t give your former spouse any of your pension, it does allow state courts to divide this pension based on their own family laws. In Virginia, any military pension you earned while you were married is considered marital property and can be divided in one of several ways.
What Is Military Pension?
Military pension is similar to other kinds of retirement pay, but more complicated. After you’ve served 20 years in the military, you’re eligible for retirement benefits. Your total monthly allotment is based on several factors, which includes annual cost of living adjustments. Your gross amount can also be lowered after subtracting qualified deductions, or if you pursue disability benefits or pay premiums for your Survivor Benefit Plan (SBP).
Former Spouse’s Entitlement to Benefits
The USFSPA permits each state to apply its own standard family law principles to military pensions during divorce proceedings. Unlike some states, Virginia divorce laws allow its courts to divide military pensions between the two spouses. Virginia courts treat military pensions the same as civilian pension plans. Both are considered a marital asset and divided accordingly.
Virginia is an equitable distribution state, but that doesn’t mean your former spouse automatically receives half your pension. Most courts will calculate a marital split based on a formula, which almost never equates to 50% of your retirement.
What is the Marital Share?
The amount of money accrued in your pension plan from the day you get married until the date of your separation is considered the marital share. This is the amount your former spouse will receive a percentage of, and not the entire amount in your pension. Because Virginia is an equitable distribution state, each spouse is entitled to up to 50% of the marital share, not 50% of the pension. Your wife will never receive more than half of your military pension. This is how regular pensions are figured under Virginia pension laws as well, but division of military pensions gets much more complex.
Determining the Marital Share
The marital share amount of your military pension is determined by adding up the number of months you were married and serving in the military, then dividing this number by the total time you served in the military before separation. Then multiply that by .5, and you’ll have her marital share. If you’re already retired when you get divorced, determining the marital share of your pension is fairly simple. However, if you’re still on active duty, it’s impossible to determine the actual marital share, because the date of retirement establishes the dividing number in the equation.
Allocation of the Marital Share
Once you determine the marital share of your military pension, the most common method of dividing this amount is by a court-ordered percentage awarded to your former spouse. Another less common method of allocation is your former spouse receiving a specific dollar amount each month instead of a percentage. This amount doesn’t fluctuate, even if your monthly pension amount does.
If you want to skip making a monthly payment or your former spouse wants a lump sum, you can opt to determine the present-value of your pension. Then, your former spouse trades her share of your pension for property and/or money in an amount that’s approximately equal to the pension’s current value. This way, you keep your entire pension, while she only gets the property settlement.
Once you start receiving military retirement benefits, the Defense Finance and Accounting Services (DFAS) administers the disbursement of your funds. If your former spouse receives a portion of these funds and she satisfies the “10/10” requirement, then DFAS pays her share directly to her. To qualify for direct pay, 10 years of your military service must have coincided with 10 years of your marriage. If this qualification isn’t met, you must make arrangements to send her payments yourself. You’ll also have to file forms with DFAS to provide coverage for your former spouse under your SBP, if you want her payments to continue after your death. She may be forced to pay this upon agreement.
Hire Virginia Beach’s Top Military Divorce Attorneys
Virginia, and especially Hampton Roads and Virginia Beach, has a high population of military personnel. If you’re a servicemember and divorce is the only option for an unsalvageable marriage, military retirement plans have a completely unique set of rules. You need someone on your side who knows the many facets of military divorce, especially for a man. The Firm For Men understands the complexities of retired military pay and is dedicated to protecting servicemen’s rights in their divorce proceedings. Call us today at 757-383-9184 and let us protect your rights.