Along with child custody matters, military pensions are typically among the most important aspects of a divorce involving U.S. service members.
However, unlike the division of a pension or retirement account in a civilian divorce, the rules regarding post-service military pay and its division in a divorce are governed in large part by the Uniformed Services Former Spouse Protection Act, or USFSPA. There are exclusions, limitations and jurisdictional prerequisites and other important aspects.
If you are married to a service member and a divorce is an imminent possibility, here are several things you need to consider if your spouse is a service member who collects, or will collect, a length-of-service pension.
Is your service member spouse entitled to a length of service pension?
A length-of-service military pension is classified as a type of deferred compensation. Service members are only awarded a length-of-service pension if they have served at least 20 years in the military, or acquired necessary points in the reserves. They also must be honorably discharged to be eligible.
Are you entitled to receive a portion of the pension?
If your spouse meets the eligibility requirements for a length-of-service pension, under the USFSPA, you as a spouse are entitled to receive a portion of that pension. How much and when are determined by various factors such as the length of marriage, length of military service and agreements between you and your spouse regarding other marital assets.
Should you wait to address the pension post-divorce if retirement is not forthcoming?
No. Even if there are years before your spouse will retire from military service, you should address the military pension during your divorce proceedings, not after when your spouse retires. By raising the issue to the court right away, a court order can be put in place addressing such distribution, how much and when. Failing to get a court order during the divorce could bar you from collecting (or make it extremely difficult to obtain) a portion of your military spouse’s pension down the line.
In which court should the divorce be filed?
Given the often continuous relocation of military service members, figuring out the appropriate court to file your divorce can be tricky. The law allows a divorce involving a service member to be filed in the state where the military member is stationed, or where the spouse resides. When or if the time comes, it may be wise to discuss the matter with your spouse and come to an agreement together. This often reduces costs associated with your divorce.
Reinforcement to help with the process
The help of a knowledgeable military family law attorney who can answer the above questions in greater detail and offer guidance on the law cannot be stressed enough. The laws and procedures regarding military service members are complex. Your lawyer can make sure your interests are protected during the entire process.