Military Divorce Myths and Truths
In a military divorce, dividing martial property can be challenging. In 1981, the U.S. Supreme Court ruled that states did not have jurisdiction to divide a military retirement. McCarty v. McCarty, 453 U.S. 210 (1981). Although state courts do not have jurisdiction to divide military pensions, the parties to the divorce are able to include the military pension in the parties’ divorce. There are 10 myths relating to the division of military property, the myths are as follows:
- To divide a military pension, the parties must have been married for 10 years during the members service in the military.
Answer: False, even if you have been married for less than 10 years you are still eligible to receive a portion of the service members retirement however, you would not be eligible to receive payments directly from the Defense Accounting Service (DFAS) - If the military spouse marries before age 55 his/her right to receive the member’s pension terminates indefinitely.
Answer: False, if a military spouse remarries prior to 55 his/her rights to receive benefits terminates, however if he/she gets divorced from his/her second spouse he/she are eligible to resume his/her spousal benefits. - If the military member remarries, the spouse’s rights with respect to the members pension and or survivor benefits terminates.
Answer: False, once a former military spouse becomes eligible to receive benefits, remarriage by the service member does not affect the former spouse’s benefits. - If the military member elects to receive survivor benefits, the former spouse must make monthly payments directly to DFAS.
Answer: False, although a former spouse may be required to make the monthly payments for the survivor benefits, DFAS automatically deducts the premium for the survivor benefits directly from the military member’s retirement check. - If the member is disabled, the divorcing spouse does not have a right to receive a portion of the member’s pension.
Answer: False, even if the military member has a disability a former spouse is still eligible to receive a marital portion of the military member’s retirement. - In the case of a divorce, the military spouse does not have the right to a cost-of-living increase.
Answer: False, a military spouse is entitled to costs of living increases on his/her marital portion of the service member’s retirement and or survivor benefits. - If the military member is already retired, his pension cannot be considered divisible marital property.
False, if a military member is in pay status, he/she may still be required to pay his/her former Answer: spouse his/her marital portion of his/her military retirement. - The formula relating to dividing a military pension is like the formula used by the state in which the parties divorce.
Answer: False, the formula for dividing a military member’s retirement is unique in that the portion is determined as follows: ½ Total number of years in the service divided by total number of years married and total number of years of military service. - Pursuant to the Soldiers and Sailor’s act of 1945, an active-duty member is not subject to personal jurisdiction of a state court.
Answer: It Depends one important provision of the Uniform Services Former Spouse’s Protection Act) (USFSPA) is that for a state court to be allowed to divide member’s retired pay, the court must have jurisdiction over the member by: - If the military member is a reservist, his retirement is not subject to division in a divorce.
Answer: False: Although the reservist’s retirement is calculated differently, it is still divisible as part of marital property in a divorce.
Additional resources regarding division of military property and divorce
https://www.military.com
https://www.military.com/benefits/survivor-benefits/surviving-family-benefits.html#:
https://www.americanbar.org/groups/family_law/publications/family-advocate/2019/summer/divorcing-military-spouse/
https://www.dfas.mil/RetiredMilitary/provide/rcsbp/eligiblebeneficiaries/
https://www.survivedivorce.com/military-divorce
https://www.dfas.mil/RetiredMilitary/survivors/Grey-Area-Reservist-Survivor-Starting-your-SBP/
https://www.militaryonesource.mil/family-relationships/relationships/relationship-challenges-and-divorce/rights-and-benefits-of-divorced-spouses-in-the-military/\
https://www.military.com/spouse/relationships/military-divorce/military-divorce-rules-for-dividing-thepension.html#:~:text=Contrary%20to%20popular%20belief%2C%20there%20is%20no%20%22magic,treat%20military%20pension%20as%20marital%20or%20community%20property.
https://www.nclamp.gov/media/489374/RC-pt2.pdf
If you are in the process of getting a divorce and you are either a military member or spouse, the law office of Lynndolyn Mitchell is exceptionally qualified to assist you with your military divorce or separation.
