Military Pension Orders and Divorce

Posted on May 31, 2021 by Katie Carter

I still hear some version of the military ten year myth, even now. I’m not sure where it’s coming from, whether it’s military JAG attorneys, the military service members themselves, or something else. It seems unlikely to me that outreach groups for military services would be misinformed, but it’s entirely possible.

In a lot of ways, military divorce is no different than a civilian divorce. But, in other way, it is – or, at least, it’s its own unique animal. We classify military divorce separately because military divorces tend to have their own unique requirements – much like, say, a fire or police department might have its own unique requirements, or even Sentara generally would have its own requirements. But the difference is that we have a LOT more military divorces than we do divorces of Sentara employees, so it sort of becomes its own unique category.

Military divorces have some unique components – the pension, the thrift savings plan, the survivor benefit, the 20/20/20 or 20/20/15 classifications, etc. While you may not have worried too much about any one particular thing while you were happily married, now that you’re considering divorce, you really ought to start gathering information. Regardless of whether you understand something, you’re going to have to start making decisions about how that something will be divided – and the more informed you are, the better.
The military pension is an area where we always get a lot of questions. Under the new blended retirement system, or under the traditional retirement system, there are a lot of moving pieces.

The one thing, though, that I think that you should understand from the get-go is this:

Even if you’ve been married less than ten years, you have still earned some interest in his retirement!

Technically, you’ve earned 50% of what was earned while you were married – which isn’t the same as 50% overall. The shorter your marriage, the less your portion will be worth, but it’s still something. Other factors, too, like whether he stays in for more than twenty years, or whether, when he retires, he receives full or partial disability, could also impact what you receive.

Ten years only matters if you want to receive direct pay from DFAS after he retires!

Technically, the only reason it matters whether or not you’ve been married for ten years, is because you have to have been married for ten years (and those ten years have to overlap with his creditable military service) in order for DFAS to pay you directly.

We accomplish this by submitting a military pension order to the court, either along with your final decree or sometime thereafter. That then goes to DFAS, which registers your interest in his pension, and then it pays you directly once he retires, eliminating the possibility of him monkeying around with your money. The military pension order has to be received and accepted by DFAS within a year of the entry of the final decree of divorce in your case. (So the clock is ticking!)

If you haven’t been married for ten years (or those ten years just don’t quite overlap with his creditable military service), all is not lost. You still have your interest in his retirement, and, depending on what your agreement or court order says, you may still not have to rely on him to pay you your portion in a timely matter.

Ideally, your agreement or court order would specify that he has to set up an allotment to help you get your portion. If not, you will have to rely on him to direct pay you, which is annoying – but, at the same time, if he doesn’t, you can still show cause him (and potentially even get attorney’s fees, too)!

If you’re near to the ten year mark, you may want to drag it out and wait – especially if direct pay is your preference. In my opinion, an allotment is probably just as good, but it’s entirely up to you.

If he isn’t retired yet

If he isn’t retired yet, you won’t know an exact number you’ll receive each month as your portion of the military retirement. Your portion of the retirement will be determined at the point that he actually retires. So, what you’ll see, whether in your separation agreement or your court order, is an incomplete formula. We know how long you were married, but we don’t know how great a portion of his service that your marriage represents.

If you’re near to the ten year mark, you may want to drag it out and wait – especially if direct pay is your preference. In my opinion, an allotment is probably just as good, but it’s entirely up to you.

You may want to also look at whether you’re close to 20/20/20 or 20/20/15 status; if you can hang on just a little bit longer and get it, it may very well be worth it to you!

If he’s already retired from active duty

If he is already retired, we can figure it out exactly. Most things are a little bit easier if he’s already retired, but, obviously, you ultimately have no control over it.

It also means that there’s no sense dragging the divorce out, at least, not according to his military pension or your status. At the point that he’s retired, you either are 20/20/20, 20/20/15, married for ten years (with ten overlapping years during his creditable military service), or you’re not. That means you can move forward on your own schedule, without regard for meeting an arbitrary deadline.

There’s some real freedom in that!

What happens if I don’t have a military pension order?

The military pension order is just a document that basically records your interest in his retirement with DFAS, and allows them to pay you directly once he retires.

It doesn’t impact your right and entitlement to the military pension itself; only the court order or the separation agreement can do that.

If you were married for 10+ years (and those ten years overlapped his military service), and you DIDN’T file the military pension order within the one year time frame, it’s okay. Sometimes that happens. That just means you won’t be able to get direct pay, but it doesn’t mean that you’ve waived anything. He still has to pay you. Hopefully your agreement or court order has set up an allotment as a backup plan, but, if not, he still has to pay you!

Military pensions can be confusing, and there’s a lot of misinformation out there. You really should get your information directly from the source – a licensed, experienced Virginia divorce attorney who handles lots of military divorces! You can request a free copy of our military divorce book on our site, or give us a call at 757-425-5200 to set up an appointment.