A military divorce can be challenging for both the military member and the nonmilitary spouse. It can be even more complicated if both parties are military members. The division of the military pension and retirement bed benefits is one of the most significant matters in divorce settlements. There are basic rules to military pensions, however each state may interpret some rules differently. It is important to seek experienced legal counsel when it comes to military divorce.
In order to determine what is considered marital property one must understand the rules that pertain to military divorce.
The 20/20 Rule
This rule looks at the time of service and the time that the couple has been married and how much of that time overlaps. If a couple has been married 20 years and all 20 years of the marriage, the servicemember was on active duty, then the nonmilitary spouse may be entitled up to 50% of the military pension. Additionally the nonmilitary spouse will also continue to have access to healthcare and base/post privileges. If there are minor children involved they will also have access to military healthcare and privileges until age 18. Additionally the nonmilitary spouse will also be entitled to the military members Survivor Benefit Plan (SBP).
The 10/10 Rule
This rule applies to a couple who have been married at least 10 years and all 10 married years the military member was on active duty. If they were married 15 years, with 10 on active duty, this rule applies. There must be at least 10 years of military service overlapping the marriage. Under this rule the nonmilitary spouse is only entitled to limited healthcare or cobra for one year. There are no base/post privileges. Minor children will continue to have healthcare and privileges until age 18. If the marriage qualifies under this rule the nonmilitary spouse can have any portion of the service members retired pay be automatically deducted through the Defense Finance and Accounting Service (DFAS). SBP should be considered as part of the divorce decree however there is no mandate that the servicemember is required to have the ex-spouse be the recipient. this would be a point of negotiation.
Two Important Rules In Military Divorce
Two important rules, it can never be more than 50% of the service member’s pension for spousal support/maintenance. It can be up to 65% if child support is added. The child support portion would reduce, generally speaking, when children become of legal age. This may vary based on state rules.
Regardless of the years married, the easy way to calculate the marital portion of the pension is to take the total number of marriage years during which the military member was earning the pension, divided by the total years of military service. For example, if a spouse was married to a military member for 7 years during their 20 years of service, the marital portion would be 35%.
Survivor Benefit Plan
The SBP can only be assigned to one person. It cannot be split between an ex-spouse and a new spouse. The SBP is designed to replace the military pension should the military member pass away. The basic SBP is only 55% of the military members retirement pay. This is significant when it comes to planning for the ex-spouse and children. So in divorce settlements, it is important to determine what the nonmilitary spouse will be receiving. With 20/20 rule the nonmilitary spouse would be entitled to the SBP. The nonmilitary spouse may waive their right to this benefit in lieu of some other compensation. One alternative to the SBP is for the military member to take out a life insurance policy for the benefit of the nonmilitary spouse and family. This option comes with pros and cons that need to be weighed carefully. Once the SBP decision has been made is irrevocable..
Disability Compensation
If the military member retires with disability compensation, it may not be included as income in most cases. The disability compensation is for the military retiree only. It cannot be divided. It can only be paid to the retired servicemember. Some states do include this as part of their income to determine an overall distribution plan. Do not assume that any disability income will be considered in the calculations for spousal support. Many states will view the disability compensation as available for child support and therefore included in the overall calculations. One aspect of disability compensation is that it can change over time. It is not uncommon for retirees to seek and be awarded additional disability compensation. This may affect their retirement pay and should be examined closely before finalizing a divorce decree.
Reserve Pensions
Military Reserve members may receive a pension as compensation for reserve or National Guard duty. The calculations for this pension are complex and are based on a point system. The points earned each year determine whether there is enough points to qualify for a year of service. If the military member has active duty time, plus reserve time it can become a little easier to calculate total years of service. The servicemember can begin collecting their military pension at age 60.
Legal Counsel
It is important that both parties seek legal counsel that is experienced in military divorce. One question that should be considered of any attorney is how many military divorce cases they have facilitated. Many decisions made in military divorce are irrevocable. Both parties cannot afford to have inaccurate information that causes one party or the other to lose significant benefits.
Conclusion
There are over 1 million active-duty service members serving our country today. When a servicemember is contemplating divorce it is necessary to ensure he or she understands completely what are their benefits and compensation. In most cases, mediation can easily take care of both parties as long as their amicable. It is important for each party to have a team of experts to assist in the divorce process. A Certified Divorce Financial Analyst (CDFA) can assist in ensuring the financial portions are analyzed correctly. If mediation is not an option, then hiring an attorney will be essential. Keep in mind that attorneys are not financial experts like CDFAs nor are CDFAs attorneys. Build a team that will work for you and provide the resources and information necessary for you to make educated decisions that are going affect you the rest of your life.