The following information is general in nature. It is not legal advice and should not be relied on by the reader. If you want specific legal advice for your specific situation, please call our firm to discuss your specific situation in California.
Divorces for military personnel have the same process as divorces for non-military personnel. However, if you are in the military or a military spouse, there are some additional factors that can affect your divorce. For example, the process may take longer if either of you is on active duty in a remote area or have a permanent station overseas. There are some states that have relaxed the residency requirements for active duty service personnel who want to file for divorce in the state he or she is stationed. Military couples should also be knowledgeable about the role of the Uniformed Services Former Spouses’ Protection Act. The USFSPA provides a federal statute for the military, guiding them to accept state statutes concerning various issues such as child support, spousal support, and military retirement pay and pension. While states have always had the authority to treat retirement and pension plans just like any other marital asset, the USFSPA permits the states to classify military retired pay as property, as opposed to income.
Military Retirement Pay and Pension
Direct retirement payments are made through the Defense Finance and Accounting Service. For the military to provide direct retirement payments to an ex-spouse, the couple must have been married 10 years overlapping with 10 years of service. For example, if you were married for 15 years, and one spouse was in the military for 8 of those 15 years of marriage, the other spouse would not be entitled to a direct payment from DFAS. If you were married for 12 years, and one spouse was in the military for 11 of those 12 years, the other spouse would be entitled to a direct payment from DFAS. Depending upon the state’s date of division, the amount of time you have been married may be judged by different criteria.
Not qualifying for the DFAS direct pay does not mean you are ineligible to a portion of the payment. To receive your portion, the criteria would need to be included as part of the divorce settlement agreement. Keep in mind that the award of military retired pay may be in addition to child support, and alimony or maintenance. The maximum amount of pension income an ex-spouse can receive is 50% of the military retirement pay. Once the order is filed with DFAS, it will take 90 days for the direct payments to begin if the ex-spouse is already receiving his or her pension. In the situation of active military members, the payments will begin 90 days after the newly retired member becomes entitled to receive their first payment. If child support is being taken from the pension, the maximum combined amount that can be deducted is 65% of the disposable retirement pay.
Calculating the Marital Share for Active Members
There are different methods of calculating what percentage of the pension to which ex-spouses are entitled. The document filed with the court will need to clearly state the formula used to derive the amount of payment. Again, the length of the marriage will come into play. One of the more common trends is to count the amount of points accumulated in the marriage rather than months. This is especially true for spouses serving in the Reserves. The three methods used to determine amount of payment are the Net Present Value (if you want a buyout), a Deferred Distribution (a share amount is calculated at divorce, but the receipt of the funds is deferred until the service member retires), or chosen Reserved Jurisdiction Calculation (The share the ex-spouse receives is calculated at retirement). The marital share can be negotiated in good faith in mediation.
Thrift Savings Plan
The thrift savings plan is treated the same as a 401(k). There are specific requirements that must be met by the court order that differ from a civilian retirement plan division order. For a complete brochure on information on divorce orders and your TSP, please see their website.
Survivor Benefits Plan
Many spouses think that if they were the beneficiary of the Survivor Benefit Plan Survivor while married, they will remain so upon divorce. This is not true, and SBP is a mutually exclusive benefit that must be addressed in the divorce settlement. For more on SBP and former spouses, please see the Military.com Survivor Benefit Plan section.
Base privileges such as commissary, exchange, and theater privileges depend on what is known as the “20/20/20 Rule.” The three requirements are as follows: First, you were married to your former spouse for at least 20 years. Second, your ex-spouse was in the military for at least 20 years. Third, your marriage overlapped the time in service by at least 20 years. If all three of these apply you are entitled to full base privileges unless you remarry.
TRICARE eligibility also is determined by the 20/20/20 rule. If you qualify under the rule above, you may be eligible for TRICARE unless you remarry. If you don’t qualify under the 20/20/20 rule, TRICARE has transitional coverage available under the 20/20/15 rule if you meet the following three requirements. First, you were married to your former spouse for at least 20 years. Second, your ex-spouse was in the military for at least 20 years. Third, your marriage overlapped the time in service by at least 15 years. If you qualify under this rule, you may be eligible for TRICARE for up to 12 months after the divorce, unless you remarry.
Divorce Options San Diego is a full-service divorce and mediation firm. We can take care of all aspects of your divorce, community property settlement, parenting plan, healthcare, savings plans, base privileges, survivor benefits, written settlement agreement, relocation, and all other issues that are important to you.
For more information on military divorce, please review all relevant websites, or contact our firm at 619.550.6807.