Military divorces can definitely be more complex when dealing with a veteran’s disability pay, military retired pay, or a spouse’s election to receive survivor’s benefits. We have compiled a list of terms are most often used, and questioned about, when dealing with a military pension or military retired pay. An experienced military divorce lawyer will be equipped to answer all of your questions in your military divorce case and also advise you on how to proceed when splitting the military retired pay, whether you are the service member or the spouse.
Jurisdiction
The civil court must have jurisdiction over the service member before it can order him or her to do anything. The court also needs jurisdiction over the service member in order to divide military retired pay. However, the service member can always waive or consent to the jurisdiction of any state court as well.
10/10 Rule
Under the Uniformed Services Former Spouses Protection Act (USFSPA), the length of marriage and length of military service must have overlapped by ten (10) years before the spouse can receive a portion of the service member’s military retired pay directly from the government.
Note: There are ways to craft a settlement agreement or divorce decree that give the spouse some or all of the military retired pay regardless of how long the couple was married.
Pension
Military retired pay is more like a pension than a retirement account. The service member does not pay or invest into the account. It is a benefit paid to the service member every month until he or she dies so long as the service member served in the military for a certain number of years.
Veteran’s Disability Payments
Depending on how disabled the service member is (based on a VA determination in percentage form), the monthly amount of military retired pay may be reduced by the amount of VA disability pay the service member is also receiving.
Disposable Military Retired Pay
The amount of military retired pay that is subject to division between the service member and spouse. This is the disposable amount, not the gross amount. If you start with the gross amount then subtract the simultaneous payment of VA disability benefits or the premium for the Survivor Benefits Plan, you arrive at what’s called the disposable military retired pay.
Death of Former Spouse
If the former spouse dies while the service member is still living, then his or her portion of the monthly military retired pay reverts back to the service member. The former spouse cannot designate a beneficiary or pass on his or her monthly payment from the retired pay to someone else in a will.
Death of Service Member
Upon the service member’s death, all military retirement benefits paid to both the service member and the former spouse will cease unless the former spouse put protections in place to receive a percentage of what he or she was receiving prior to the service member’s death; see SBP coverage below.
Death of Service Member
Upon the service member’s death, all military retirement benefits paid to both the service member and the former spouse will cease unless the former spouse put protections in place to receive a percentage of what he or she was receiving prior to the service member’s death; see SBP coverage below.
Survivor Benefits Plan (SBP)
This is an annuity intended for spouses or former spouses when a service member dies and military retired benefits would otherwise terminate. The service member must designate the former (spouse) as beneficiary of the Plan and pay a monthly premium for the spouse to have this SBP coverage. The SBP premium is deducted automatically from the service member’s monthly military retired pay.