How Military Retirement is Divided in Divorce
The largest, most important asset for many military families is the military retirement. Because of this fact, many husbands are eager to try to convince their wives that they have no share in the military retirement, or to try to encourage them to take some other asset in lieu of their share of the retirement.
The most common scenario I’ve seen is when husband offers to give wife the marital home in exchange for her giving up her share of the military retirement. Remember that the value of your home is not set in stone—the market fluctuates and, even though it’s looking stronger lately than it has in awhile, it’s probably not the best gamble in the world. His military retirement is probably more secure.
Specific entitlements vary by state, but in Virginia, you have a right to your marital share of the retirement. Your marital share is calculated from the date of marriage until your date of separation—not the date you actually get divorced. There’s a formula for calculating your specific marital share:
Number of years employed during the marriage
________________________________________ x 50% = marital share
Total number of years employed
Let’s say that you were married for 20 years, and your husband was in the military for all 20 of those years. Twenty divided by 20 is one, multiplied by 50% means that you get 50% of the military retirement. If you were married for 10 years, and your husband was in the military for twenty years, you get 25%.
Remember that this is assuming that Virginia will have jurisdiction to divide your military retirement. Each state handles division a little bit differently, so if your husband is claiming that another state has jurisdiction, you’ll want to check into how that handles property division in divorce. The Servicemembers Civil Relief Act (SCRA) allows military to live in one state and claim another as their legal residence.
States have been able to divide military retirement since 1982, when the Uniform Services Former Spouse Protection Act (USFSPA) was passed. Still, some states don’t allow division. Specifically, Arkansas, Indiana and Alabama consider unvested pensions as separate property, so if your husband is claiming that his legal residence is in one of these states, you may not be able to claim a portion of the retirement.