Military Retirement Pay and Divorce

Posted on Jul 23, 2014 by Katie Carter

The Uniformed Services Former Spouses’ Protection Act was enacted in February of 1983 to help protect the rights of ex military spouses. Specifically, it provided authority for the state courts to treat disposable retired pay as marital property. Translation: the court can rule that whatever retirement money is earned during the marriage as a result of one spouse’s military service is divisible in divorce, but it doesn’t have to. Ultimately, the way military retirement is handled is up to the state.

There are some states that are more friendly to military families than others. Because Virginia, and specifically Hampton Roads, has such a heavy concentration of military families (I mean, obviously, we have Oceana, Norfolk Naval Base, the Yorktown Coast Guard Base, Langley Air Force Base, and many more!) we tend to put a lot of thought into how laws are put in place that affect military service members and their families. The federal Servicemembers Civil Relief Act (SCRA) allows us to “stay” (or delay) military court proceedings while a military service member is away on deployment, and the Virginia Military Parents Equal Protection Act prevents a parent’s military service from working against an active duty parent in a custody case. As far as how the law applies to military service members and their families, we’re pretty progressive.

Living in an area with such a tremendous number of active duty men and women instills a strong sense of patriotism in a person. Not only that, but people who spend any amount of time in our area go away with the feeling that defending our freedom isn’t some far away ideal, but something that people we know do every single day. We feel grateful and very aware that our freedom isn’t fee, and that there are hundreds of thousands of men and women out there working to protect us and our way of life every single day. Many of our family, friends, co-workers, and neighbors serve the country, whether active duty or reserves, and its just one of those aspects of day to day life that you feel constantly aware of.

Unfortunately, though, military divorce and custody cases are something that we see a lot of. In a lot of ways, military divorces are pretty dramatically different from civilian divorces, but in other ways they’re exactly the same. Divorce is one of those areas of law where the state retains almost all the control. Each state is responsible for determining how a divorce will be handled, which is why you hear so many different things. “Irreconcilable differences,” is a ground for divorce in a lot of states (like New York and California) where celebrities tend to get divorced, so a lot of us have heard of it. In Virginia, though, we don’t have “irreconcilable differences” at all; we have no fault divorce. That’s a small example, just made to illustrate the point that things are dramatically different from state to state.

There are a number of military specific laws that affect the way divorce (and other legal issues) is handled when it comes to military service members and their spouses. The Uniformed Services Former Spouses’ Protection Act is just one of those laws and, for once, it’s one that was passed that was designed to help the non-military service member. Of course, it’s a reality of life—if you live in an area where you have a tremendously high concentration of active duty military service members, you also live in an area where you have a tremendously high concentration of active duty spouses. Our laws protect the military service members because we have so many of them that their well being is a legitimate interest of the state. Similarly, because we have so many military former spouses, our laws have to adapt to take care of them, too. Of course, like I indicated earlier, the Uniformed Services Former Spouses’ Protection Act doesn’t actually require that Virginia divide military retirement this way automatically, and it doesn’t provide a specific formula by which the court must divide the military retired pay. It just gives the commonwealth the authority to divide military disposable retired pay, should the it choose to do so.

Fortunately for former military spouses (and living in Hampton Roads, we have a lot of them), Virginia DOES choose to do so. It is based on a formula where each party is legally entitled to take home 50% of the marital share. In Virginia, at least, military retirement is divided just like any other asset. It’s identified first, as either separate, marital, or hybrid, and then it’s divided appropriately based on its classification.

Separate, Marital, and Hybrid Assets in Virginia

It’s not a very shocking proposition. Though military service members rarely like to give up anything they’ve earned to their former spouses after divorce (and that’s not at all surprising), civilians have been doing it all along. The way the law sees it, whatever is earned, purchased, or accumulated during the marriage is marital property, and it belongs to both parties equally. Separate property, on the other hand, is property that was earned or acquired before married, or something that was inherited or gifted during the marriage by someone other than the other spouse. A gift of, for example, a car or a diamond ring or a sum of money from your parents (that wasn’t jointly given to the two of you), whether before or during your marriage, stays yours separately. A hybrid asset is some sort of combination of the two.

Retirement accounts are often hybrid. Just to be clear, let me go into a little bit more detail. Just because you share an interest in the asset (in this case, a retirement account) equally doesn’t mean that you both take home 50% of the value of the retirement at the end of the day. You have a 50% share in whatever was earned during the marriage, because that’s the marital share. So, if your husband worked at his job (whether a civilian job or a military job) before you were married, he retains a 100% interest in his own retirement during the time that he was single; he only starts to split the retirement with you 50/50 at the point that you married him. You only get 50% of the retirement earned during the marriage. That retirement account is a hybrid asset, because it’s part marital and part separate.

Why do I get part of his retirement?

Even though the retirement is technically earned by the spouse who did the working, the court views a marriage as a partnership. The assets of the partnership belong equally to both partners. In a marriage, you’re working together towards some common goals. You may be working separate jobs (or one of you may be staying at home), but you’re working together with a shared vision of the future for your family. Retirement is part of that vision.

Whether you worked yourself during that time or you stayed at home, the two of you worked together to earn whatever retirement money you have at the time of your divorce. The work that you did, professionally and at home, enabled your husband to go to work every day to earn what he earned. As a result, the marital share of whatever either of you earned will also be shared in divorce.

Bottom line: it’s property, and you earned part of it.

What do I need to do to protect my rights to his retirement?

As a former military spouse (or a soon to be former military spouse), you have certain rights. No matter what your husband says (or his friends or family), it is part yours because you earned it, even if you never even set foot on the base.
You have a right to the retirement, as long as you don’t sign anything that says you waive it. Be very, very careful. If you and your husband are talking about separating, don’t sign anything he gives you without reading it very carefully and, if you have any questions about it, having it reviewed by an attorney first. If you sign something waiving your right to his retirement, there’s no way to get it back.

Otherwise, whether your attorney is negotiating a separation agreement for you or you need a judge to help you divide the assets and liabilities of the marriage for you, you will get your marital share of the retirement, no extra work required.

He says I won’t get any of his retirement because we haven’t been married ten years!

This is a common misconception. I’m not entirely sure how exactly this nasty little rumor got started, but it really has spread like wildfire. I hear it all the time, and the most troublesome thing (to me) is that everyone I hear talking about it says it’s like it’s one of the ten commandments laid down by God to Moses. They say, solemnly, “Well, it hasn’t been ten years…” and everyone just seems to accept that it’s true. I don’t understand it!

Does that sound right to you? Civilian spouses don’t have to meet a certain threshold in terms of the number of years they’ve been married before they have a property right in each other’s retirement accounts. Why should it be that way for military spouses? It doesn’t make any sense at all. It’s totally arbitrary! I could go on and on, but I won’t belabor the point any more. It’s ridiculous and it sounds wrong because it is wrong. There is no such thing as the ten year rule.

Whether you’re military or civilian, from the first day of your marriage you’re earning a marital share of each other’s retirement accounts. (Not just retirement accounts, of course, but that’s just what we’re talking about in this article.) After day one, you don’t really have very much of an interest in his retirement, especially if you get divorced on day 1 and he goes on to serve for another twenty years afterwards, but you would, theoretically at least, have a teeny tiny little interest in his retirement after just one day.

As frustrating as I find it that people (women, especially) automatically believe these things and accept them as fact, I guess I do know where it comes from. When you receive a share of a military service member’s pension, unless you’ve been married for more then ten years, you don’t qualify to receive your share of the retirement directly from DFAS (you know, Defense Finance and Accounting Services, the company that pays him). If you’ve been married less than ten years, the only difference is that DFAS won’t send you a check for your share of the retirement. You’ll have to get your share directly from your husband. If you’ve been married more than ten years, the money is automatically divided by DFAS, and you each get your checks separately.

Of course, getting paid directly from DFAS is a lot easier than waiting for your husband to pay you, especially if he’s a difficult kind of guy. But the fact of the matter is that he still owes you the money, whether he takes a long time about it or not. The amount of property interest that you have in the retirement account is unchanged, but the method of payment is a little different in marriages that don’t meet that ten year threshold.

The Uniformed Services Former Spouses’ Protection Act exists to protect you. If you have any questions about the act, military pensions, or the laws regarding division of retirement assets in Virginia, you should talk to a licensed and experienced Virginia divorce and custody attorney with experience representing military spouses. To schedule a confidential consultation with one of our attorneys, feel free to give our office a call at (757) 425-5200.