Getting divorced is never easy. In addition to the emotional turmoil and conflict, various decisions must be made in terms of separating the lives of the couple. If one spouse was in the military, there are additional considerations regarding benefits and assets. It is important for both spouses to understand how military pensions may be divided during a divorce. For more information and to obtain skilled legal representation, reach out to a Suffolk County military divorce lawyer today.
What is a Military Pension?
After a servicemember retires from the military they may be entitled to a pension. A military pension is retirement pay that is given out each month as a paycheck from the government. Only individuals who have served for 20 or more years can receive pension checks after retiring from their career in the military. The amount you receive is generally based on a percentage of your highest basic pay and when you joined the military.
Is Military Retirement Pay Subject to Property Division?
During a divorce where one spouse served in the military, retirement pay is often a highly contested issue. The servicemember likely wants to keep the entirety of the funds to themselves while the spouse probably feels entitled to some of that money.
The issue is governed by the USFSPA (Uniformed Services Former Spouses Protection Act). This statute allows military pensions to be considered marital property and is therefore subject to asset distribution.
How Are Military Pensions Divided in a Divorce?
Like any other joint asset, military pensions are considered when dividing marital property. New York is an equitable distribution state, so property is divided fairly between a couple during a divorce. Assets may not be split equally but it will be equitable and based on both spouse’s personal and financial situation.
Federal law states that during a divorce, former spouses can be awarded up to 50% of the servicemember’s pension. The actual amount that will be awarded is up to the state court.
How Will the Pension Be Distributed?
Keep in mind that neither spouse will receive a dime of the pension until the servicemember retires. When they do retire, however, the non-military spouse can receive payments directly from the Defense Finance and Accounting Service or from their ex-spouse.
If the 10/10 rule is met, the government will pay the ex-spouse directly. The 10/10 rule applies when the couple was married for at least 10 years and overlapped with at least 10 years of the military member’s service.
Otherwise, the entirety of the retirement pay will be given to the retired military member who then is required by the court order to distribute funds to their former spouse.
If you have questions regarding your rights and responsibilities during a divorce as either a military member or spouse of a military member, do not hesitate to contact Peter V. Mandi & Associates, Inc. to speak with an experienced attorney and set up a free consultation today.
