In our last blog post, we began a series covering issues in military divorces. Our first post looked at VA Disability Benefits in the context of divorce. We discussed the unique nature of VA Disability Benefits, which are considered the separate property of the servicemember (and thus are not divisible by the court). However, we also noted that these benefits can be considered by the court when making a determination on child support or spousal support.
Today, we’ll discuss military retirement benefits, which are very similar to a pension plan from a private employer. These benefits typically provide a set amount of money per month that is paid to the retired servicemember based on their years of service, rank, and a number of other factors.
In contrast to VA Disability Benefits, Military Retirement Pay is considered community property income. This means that it can be divided by the court. This is an important distinction between these two types of benefits, and many people incorrectly assume that both VA Disability Benefits and Military Retirement Pay are both treated the same.
While Military Retirement Pay may be divided between the spouses by the court, it is important to note that there are restrictions on how this can be paid to the non-servicemember spouse. While the military can and does take alimony and child support directly out of a retired servicemember’s monthly retirement benefit, when the division of military retirement pay is a part of the overall property division, the military can only pay the ex-spouse directly where the servicemember was married for 10 years during which time he/she performed at least 10 years of service “creditable towards retirement eligibility.” In such cases, if the ex-spouse is awarded, for instance, 50% of the retired pay, the military is allowed to take that 50% out each month and pay it directly to the ex-spouse. However, in cases where the marriage did not last at least 10 years during which the servicemember performed at least 10 years of military service, the military cannot, by law, take that money directly out of the servicemember’s monthly retirement check. While the court can still order the servicemember to personally pay his ex-spouse 50% of the check once he/she receives it each month, the military by law cannot simply pay the ex-spouse directly.
Obviously, this creates confusion in many cases, as this benefit is an important asset in many divorces. As with all military issues in a divorce, it is important to consult an experienced attorney who can help guide you through this process.
If you have questions about this topic or any other legal topic, please give us a call at 214-236-2712.