When a couple gets divorced, one of the main issues they must address is the division of property. Property consists of any assets the pair jointly owns, including retirement accounts. When one or both of the spouses in a divorce are military members, an important topic to consider is if and how pensions will be divided. Work with a skilled Montgomery County property division lawyer during your divorce for representation and legal advice.
What’s a Pension?
A pension is a retirement plan offered to individuals in certain careers like construction, teaching, nursing, law enforcement, and the military. A military pension is a government-funded monthly annuity. The most common retirement plan military servicemembers use is the Thrift Savings Plan. During the course of a military member’s career, they can contribute money to their pension out of each paycheck and the government will contribute as well.
Once the individual retires, they will begin receiving monthly pension checks. This money will come from the Thrift Savings Plan. The amount will be dependent on the number of years served as well as the highest basic pay received during that time.
Is the Spouse of a Military Member Entitled to the Pension?
Yes, the spouse of a military servicemember is entitled to a portion of their pension even after divorce. The USFSPA (Uniformed Services Former Spouse Protection Act) makes military retirement pay divisible property.
There is no minimum amount of time that the couple must be married before the non-military spouse can collect money from the pension. Depending on the circumstances of the relationship, a court can award the non-military spouse up to 50% of the retirement benefits.
How Are Military Pensions Divided During Divorce?
The way military pensions get divided during a divorce varies depending on the details of the relationship and each spouse’s financial situation. The pension will be treated like any other marital property. A court will consider all information about joint and separate assets and property, as well as each spouse’s earning capacity. They will then make a ruling, potentially awarding the non-military spouse up to half of the military spouse’s pension.
It is important to note that even though the court will dictate how much each spouse is entitled to, neither party will receive even a penny before the servicemember retires. Their ruling simply outlines how future payments will operate.
The 10/10 Rule
When the time does come that the military member retires and pension checks begin to be distributed, the way the money is received will depend on certain details of the marriage. According to the 10/10 rule, non-military spouses are entitled to receive their share of the pension in a separate check issued by the Defense Finance Accounting Service only if:
- The marriage lasted 10 years or longer, AND
- 10 years of the marriage coincided with the military spouse’s service.
If the marriage did not last 10 years or the military spouse did not serve 10 years during the marriage, the entirety of the pension check will be sent to the military spouse who will then be required to pay their ex.
Reach out to an experienced attorney for more information on your legal rights and options.