Many times, people who have served in the military are frustrated dividing their military retirement with their spouse. However, it’s a divisible asset when the parties divorce. The amount that is awarded will be determined by the time during the marriage that coincides with the military service. For instance, if you have military retirement but you didn’t get married until after you ended service, there will be no division of the retirement. I see this come up in second marriages, the military service may have taken place before the parties are married. Even if you are both using the existing military retirement for living expenses, it’s not going to be divisible. It all remains with the service member.
Clean Division: Marriages During Entire Military Service
When it’s the cleanest division is when the parties were married the entirety of the time in service. In long term marriages, this is often the case. For example, perhaps you have twenty or more years in service. If you do, if you were married throughout that time, your spouse would be entitled to 50% of the retirement as well as other benefits like the military ID card for access on base and Tricare. You also would be entitled to Survivor Benefit but it must have been elected. If it wasn’t elected then if you divorce you cannot go back and ask to receive it. Twenty years is the magic number to retain the benefits. Twenty years of marriage during the twenty years of service.
If you have been in the military for 15 years and married for ten of those years your spouse only receives the marital fraction and won’t receive one half of the benefit. If you’ve been married at least ten years, DEFAS will do the work for you and send the benefit directly to your ex-spouse. If you have not been married ten years, you will have to receive any portion of the retirement you receive directly from the servicemember.
Challenges in Dividing Military Retirement Assets
It can be tricky navigating the division of the retirement assets in the military. Especially if the service member is a reservist or went in and out of the military. I have had a case like this that has caused significant delay in getting the right calculation from DEFAS to perform the calculation. Made more complicated by working with opposing counsel who had no military experience. If you have a military divorce, it’s very important that you find an experienced lawyer who has done military divorces before. You don’t want to agree to something that’s inequitable because of a mistake by your attorney.
The Importance of Expert Legal Advice in Military Divorces
Last year my associate was hired by a man who had agreed to give his ex- wife all of his military retirement. When he came to us, he had realized the huge mistake he had made. But it was too late to rectify it. He thought this was easier than giving her an alimony award. However, when she remarried, he also thought it was going to end. No. It was a non-modifiable property settlement. We tried to help him by arguing it was intended as alimony but the Judge didn’t accept that and he was stuck with his poor agreement. It’s so important that you get the property settlement issues right because you cannot go back and change them later.
