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Divorce and the Military

On Behalf of | Mar 29, 2012 | Military Family Law |

Often servicemembers or their spouses ask about “military divorce.” While there really isn’t something called a “military divorce,” there are many special considerations that need to be made during a divorce when one or both of the spouses are in the military.

When divorcing, some of those considerations are often the military retirement benefits of the servicemember; support of the servicemember’s dependents; continued access to commissary and exchange services; as well as access to healthcare.

Your attorney should also be aware of what affects the Servicemembers Civil Relief Act (“SCRA”) will have on their case.

Military Retirement and Divorce

In 1981 the United States Supreme Court ruled that state courts did not have the authority to order a division of a servicemember’s military retirement.

In response, Congress enacted the Uniformed Services Former Spouses Protection Act (the “USFSPA”). Contrary to a common misconception, the USFSPA does not mean that a servicemember’s spouse is automatically entitled to a share of the military retirement, nor does it require that spouses be married for any certain length of time.

However, the USFSPA did provide that state courts were permitted to treat military retirement the same as other types of retirement under that state’s law. Because state laws on the division of retirement benefits vary, it is important that you work with an attorney who is knowledgeable about military retirement and can help develop a strategy to protect your interests. It is important to know that while the USFSPA permits the divorce court to divide military retirement, there are some limitations. The court may only divide the servicemember’s disposable retired pay. In addition, while the USFPA prohibits the division of retired pay that has been waived in order to receive disability pay there are many complex rules which affect whether or not the spouse of the retired servicemember may continue to receive a full share of the retirement even when the servicemember is collecting disability.

In the divorce, you should also discuss with your attorney the Survivor Benefit Plan (“SBP”) and Thrift Savings Plan (“TSP”) benefits. Other benefits may be available to the spouse, based upon whether they meet the “10/10,” “20/20/15,” or the 20/20/20” rules.

Like any divorce, each case is different. We invite you to call Attorney Scott Scholl today to schedule a time to discuss the unique needs of you and your family.