Hartley Law Office, LLC

Hartley Law Office, LLC

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Retirement pay as a marital asset in military divorce

Marriage with a member of the U.S. Armed Forces is seldom easy. You have likely endured months apart while your spouse deployed, moves to unfamiliar places and silence following especially harrowing assignments. Perhaps your spouse's methods for coping with the stress of his or her military service became a wedge between you, and your marriage is beginning to deteriorate.

Whatever the reasons, if divorce is in your future, you are probably concerned and confused about your rights as a civilian spouse. This may be especially true in light of the recent U.S. Supreme Court decision concerning military retirement and divorce settlements.

Your right to benefits in a military divorce

As you may know, individual states determine how a couple will divide marital assets. This is true even in a military divorce. However, many states typically grant a civilian spouse half of the service member's retirement pay in consideration for the sacrifices civilians often make to accommodate the careers of their military spouses. If you and your spouse divorce, the court may entitle you to up to 50 percent when your spouse eventually begins to draw retirement.

However, the law protects a veteran's benefits for disability from division in divorce. In the event that your spouse applies for this benefit, you will have no claim to it. This has been a problem in many divorces because a service member may relinquish part of his or her retirement to accept disability benefits without incurring tax penalties. If your spouse does this, you may expect your share of your spouse's retirement pay to drop.

The Supreme Court decision favors service members

In the past, when a service member claimed disability and accepted a reduction in retirement pay, state divorce courts often required the service member to compensate the spouse for the cut in his or her share of the retirement granted in the divorce settlement. However, the recent court decision ruled that the states were wrong to do this. The service member should not have to use his or her disability pay to supplement the cut in a civilian spouse's settlement.

This is important for you to know before you begin negotiations for a fair division of assets. If there is a possibility that your military spouse will claim disability at some time in the future, and that disability will affect your share of the military retirement, you will certainly want to prepare for that. For example, you and your attorney may explore the option of seeking alimony, then consider having that alimony adjusted if your share of retirement benefits declines when your ex-spouse claims disability pay.

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