Military Retirement in Virginia Divorce

Posted on Nov 13, 2017 by Katie Carter

There are things in divorce that are negotiating points, especially when it comes to the finer points.  A judge, it has to be said, isn’t going to be creative with the results in any particular case; it’s not personal, there just simply isn’t time.  If you want to be creative, and craft a solution that will work uniquely for your case and the particular issues raised by you and your husband, chances are pretty good that you’ll be happiest by negotiating a separation agreement.

There’s a lot to negotiate, from how to divide the personal property, to how to handle custody and visitation, and even spousal support.  There’s room for a wide range of solutions, and plenty of flexibility in the way things are allocated.

When it comes to military retirement, though – well, let’s face it – what’s the point of negotiating?

If your husband has served in the military, you have a marital interest in the pension.  Period, end of story.  Even if it was technically “his” job, you both earned it.   Your sacrifices made his military career possible, too, and the pension will be divided between the two of you according to your marital share.

What’s my marital share of the military retirement?

You don’t necessarily get 50% of the total value of the pension overall; you get 50% of the portion that was earned during the marriage. So, if he had 20 years in the military, and you were married to him all 20 of those years, you would receive 50% of his pension.  If, on the other hand, he had 20 years in the military, and you were married to him for only 10 of those years, your interest would be 25%. Of course, I chose nice, round, even numbers; chances are, your numbers aren’t so round and even.  But, regardless, it’s super easy to calculate your share of the military retirement.

Can I waive my share of the military retirement?

Yes, you could – if you signed an agreement waiving your share of the military retirement.  I don’t know why you’d do that (in fact, I’d advise you against it!) but you certainly could. For a lot of husbands, they’ll start with this—a first draft of a separation agreement that says that you agree to waive your interest in the retirement.  You don’t have to sign it; you’d be making a huge mistake if you did!  But, still, a lot of husbands like to dream big, even if their dreams are completely unrealistic.

The reality is that no judge would force you to give up your share of the military retirement.  You’ve earned it.  It’s a property right.  It’s something you can insist on.  If he says he won’t give it to you, you can tell him to take you right to court, because the judge will certainly give you your marital share of the retirement.  It’s not a negotiating point, like so many other things are.

Will your husband be angry?  Probably.  Will he yell and scream?  Maybe.  You know him better than I do.  I can tell you, from my years of representing women only in divorce and custody, that husbands often are pretty irked by this particular point.  They also offer plenty of things in an effort to get their wives to leave their military pensions alone.  But if you don’t like what he’s offering, you don’t have to accept an alternative.

A judge isn’t going to get creative; a judge isn’t going to force you to accept some other division.  A judge is going to divide out your marital share of the pension, if you end up in court, and that’s what you’ll get.  (So, honestly, chances are pretty good your husband won’t take you to court over the military retirement, because his attorney will advise him that it’s not a good use of his money, since the outcome will almost certainly be in your favor.)

What kind of alternative proposal might my husband make?

It’s reasonable to be prepared for a counter offer.  And maybe to even think about what kind of counteroffers you might be willing to accept. There’s no doubt that a military pension has pretty significant value, especially if you’re going to receive a sizable chunk of it.  But there are strings attached, too—like the fact that he’ll actually have to retire for you to receive it (and, if you’re young or his career is likely to be longer than 20 years, could be awhile), and the fact that he could die just a couple of years into his retirement and then –poof – it’s gone, unless you’ve elected for the survivor benefit. Do you want more money up front, or would you prefer a certain amount of money (especially if you’re not planning to elect to participate in the SBP)?

Those are probably reasonable goals.  It always makes me nervous to accept something different, because I don’t have a crystal ball.  Are you selling yourself short by accepting, say, an additional $50k from the sale of the house in exchange for reducing or eliminating your interest in the military retirement?  Who knows?  I guess it all depends, and, at the end of the day, it’s a personal decision.

You’re certainly free to entertain his counteroffers, if he makes them, but make sure you do the math.  If you accept that additional $50k from the sale of the house, how long would it take you receiving a share of his military pension to receive that amount of money?  Are you waiving too much of your interest?  It’s always going to be a mathematical calculation.  And, especially if he hasn’t retired yet, it may be hard to know exactly what he’ll receive.

What’s the military ten year myth?

The military ten year myth is that if you haven’t been married for ten years, you won’t receive any portion of his retirement.  That’s totally not true – although many military husbands like to say that it is.  (It’s an intimidation tactic!)   If you’ve been married for less than ten years, you still have an interest in his military retirement.  It’s smaller, of course, but you have an interest from day 1 of your marriage!

You receive 50% of what was earned during the period of your marriage that overlaps with his military service.  It doesn’t matter whether you were married for 1 year or 30, if it overlaps with his military service at all, you have an interest in his pension. The only thing that really matters as far as the duration of your marriage is concerned is that, if you’ve been married for less than ten years, you won’t qualify to receive your portion of the military retirement directly from DFAS.  Your husband will receive it, and then he’ll have to forward you on your portion – a pain, no doubt, but you still have the same interest, it’s just a question of how that interest is paid to you.

I don’t want to give up my marital interest in the military retirement.

Good for you!  Then don’t!  The court won’t make you, and even though it may make your soon to be ex husband pretty irked, there’s not a whole heck of a lot he can do about it.  Stand your ground, and don’t sign anything without making sure to have it reviewed by an attorney first. For more information about military divorce, request a copy of our super popular military divorce book, or give our office a call at (757)425-5200.