First and foremost, get a good lawyer.
If you are a non-military spouse in a military divorce and you were married for many years, there is every chance you are entitled to a part of your ex-spouse's pension. The best way to ensure you get your fair share is to engage an experienced and successful military divorce lawyer.
In this article we are not considering child custody or alimony or even retention of such things as medical benefits. We are considering retirement pay, the pension paid to an ex-military person.
But remember a military divorce is, in many ways, exactly the same as a civilian divorce. It takes place in a civilian court and follows the rules of the state in which the case is heard. There are federal laws and military regulations which come into play and these can be explained by your lawyer. But military divorces are heard in state civilian courts.
But if the state court grants you a part of your ex-military spouse's pension, then those orders of the court form the basis for you to receive this money.
Unfortunately this is where the rules get a bit complicated and you would do well to get at least a rudimentary grasp of the facts. Again, having the right type of lawyer is your best option.
There is really only one thing which all states have in common when deciding on how much an ex-spouse will get from a retired military person's pension. The one common thing is the word 'fair'. In other words each state has their own rules and makes its decision according to the facts presented. Fair is what the court says is fair.
Now both spouses - military and non-military - need to know that retirement pay may be made up of different elements and that some elements are exempt from being shared. There's the basic pension made up from years of service (base pay) and then there's income earned from what can be called add-ons. Things like disability pay and survivor benefit premium. Federal law means that certain add-ons are not to be shared and so whatever amount the non-military spouse is awarded, if any, will come from the basic pension.
Retired pay is just that, pay given to an ex-military spouse after he or she has retired. The military cannot force a person to retire and the pension is not paid until the spouse has actually retired.
The court will decide how to split the pension considering a number of factors such as:
- How long has the couple been married
- How old is each spouse and what is the state of their health
- Why is the couple getting divorced
- Apart from the military pension, what other assets does the couple have to share
Generally speaking, the longer the marriage the less the non-military spouse will receive. This is because they have enjoyed a share of the military spouse's wage and benefits throughout the time they were married.
Fifty per cent is a rough guide as to how much of the pension the non-military spouse will receive but each case is unique and each judge in each court will weigh all the facts before making a decision.
There is a common misunderstanding that every non-military spouse will automatically receive a portion of their ex-spouse's pension based on a calculation involving the length of their marriage and the length of the military spouse's service. This is not true.
Courts are not required to fix a set amount when dividing a military pension. In some cases they may award nothing to the non-military spouse. As always, the best way to get the best result is to engage a lawyer who is active in handling military divorce cases. It goes without saying too that he or she must be good at their job.
One issue regarding the size of the pension a non-military spouse will receive is the length of the marriage. Courts usually regard a marriage as being ended once a divorce has been granted. Being separated does not affect the length of the marriage and both spouses should be aware that a lengthy separation may alter the court's ruling on the division of a military pension. A lengthy separation could make a marriage much longer.
The share allocated to a non-military spouse is obviously important and particularly to the two recipients. But the percentage split, if granted, is on a certain amount and that's the point. How much is that pension?
In 1986 legislators took into account that many military employees were retiring in their late 30s and early 40s having completed their 20 years of service. In many cases these now ex-military officers took other employment.
This could mean a delay in payment of a military pension but when it does become due, what has happened to the value of that payment due to inflation? Cost of living increases are factored into such pensions so that an amount is paid which reflects the move in contemporary costs.
There is a long list of factors to consider when dividing a military pension after divorce. Things such as:
- a medical opinion on the life expectancy of the military spouse
- what happens if and when the military spouse dies
- how to deal with the administrator of the pension fund
- interest rates and changes to interest rates
- what's the difference between the cost of living for pre-retirement and post-retirement
Sadly the issue of the division of military pensions seems to be getting more complex and more frequent. Once military pensions were excluded from the division of marital assets; not any more. Today they are an integral part of many military divorces.
Today the military pension is often front and center of many a divorce application and lawyers worth their salt work long and hard to learn all they can about the value of that pension, what it is truly worth and how their client can receive as healthy a share of the pension as possible.
Which brings us back to the point about hiring the right lawyer. The greater the value of the pension and the more complex the decision for the court to make means that only the right type of military divorce lawyer is good enough for your situation.
Here are additional resources you might be interested in:
What are the Effects of Military Pension and Divorce?
More information on Military Divorce
click here.
UK Military Divorce
Canada Military Divorce
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