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How Long Does a Former Spouse Receive Military Retirement?

A former spouse can receive a portion of a military retiree’s pension as long as the divorce decree or court order specifies it and meets certain legal requirements. In most cases, the payments continue until the former spouse’s death, but there are situations where payments can be terminated or modified, such as remarriage or changes in the retiree’s circumstances.

Understanding the Basics of Military Retirement Division

Dividing military retirement benefits in a divorce is a complex area governed by both federal and state laws. It’s not as simple as halving the retirement pay; many factors determine whether a former spouse is entitled to a share and, if so, how much. The Uniformed Services Former Spouses’ Protection Act (USFSPA) is the cornerstone federal law allowing state courts to treat military retirement pay as marital property subject to division in a divorce.

The 10/10 Rule: A Critical Factor

The 10/10 rule is a critical threshold. To directly receive payments from the Defense Finance and Accounting Service (DFAS), the former spouse must have been married to the service member for at least 10 years during which the service member performed at least 10 years of creditable service towards retirement. If this 10/10 rule isn’t met, the former spouse can still be awarded a portion of the retirement pay by a court, but receiving it directly requires extra legal steps to enforce the order against the retiree.

Disposable Retired Pay: The Divisible Pot

The amount divisible is generally the disposable retired pay. This isn’t the gross retirement pay. Instead, it is the gross pay less certain deductions, such as amounts waived to receive VA disability compensation. The divorce decree or court order must specifically state the method for calculating the former spouse’s share, whether it’s a fixed dollar amount, a percentage, or a formula based on years of service during the marriage.

State Laws Play a Crucial Role

While the USFSPA provides the federal framework, state laws govern the division of marital property. Some states are community property states, where marital assets are typically divided equally. Other states use equitable distribution, where assets are divided fairly, but not necessarily equally, based on various factors like the length of the marriage, each spouse’s contributions, and their future earning potential. The specific state where the divorce is finalized significantly impacts how military retirement benefits are divided.

Factors Affecting the Duration of Payments

Several factors can affect how long a former spouse receives military retirement payments:

The Divorce Decree: The most important document. It outlines the terms of the retirement division. Any ambiguities or omissions can lead to future legal battles. The document must adhere to USFSPA guidelines for direct payment.
Remarriage (Sometimes): In some cases, the divorce decree might state that the former spouse’s share of the retirement payments will terminate upon remarriage. However, this is not automatic. The decree must specifically include such a provision.
Death of the Retiree: Generally, the payments to the former spouse cease upon the retiree’s death, unless the divorce decree stipulates that a portion of the Survivor Benefit Plan (SBP) be paid to the former spouse. The SBP is a life insurance annuity that continues payments to the designated beneficiary after the retiree’s death.
Death of the Former Spouse: This is the clearest termination point. The payments cease upon the former spouse’s death, regardless of any other factors.
Modification of the Court Order: In some limited circumstances, a court order dividing military retirement can be modified. This is often very difficult to achieve and typically requires a significant change in circumstances.
Changes in the Retiree’s Pay: If the retiree’s disposable retired pay changes (due to disability offsets or other adjustments), the former spouse’s share might also change, depending on how the divorce decree is written.

Survivor Benefit Plan (SBP) Considerations

The Survivor Benefit Plan (SBP) is critical for ensuring continued financial support to the former spouse after the retiree’s death. If the retiree elects to provide SBP coverage to the former spouse, a portion of the retirement pay will continue to be paid to the former spouse for the remainder of their life, even after the retiree’s death. Obtaining SBP coverage is a significant factor that impacts the length of the payment and should be discussed during divorce proceedings.

Frequently Asked Questions (FAQs)

What happens if the military member remarries? The military member’s remarriage does not affect the former spouse’s entitlement to their portion of the retirement pay, as long as the divorce decree and the USFSPA requirements are met.
Can the former spouse receive more than 50% of the retirement pay? Under federal law, the maximum amount a former spouse can receive directly from DFAS is generally 50% of the disposable retired pay if there’s another court order for child support or alimony being paid. Without that, the max is 65%. State law can dictate a larger amount to the former spouse.
What if the divorce decree doesn’t mention military retirement? If the divorce decree is silent on the issue of military retirement, the former spouse typically loses the opportunity to claim a share of it later. It is crucial to address this during the divorce proceedings.
How is the cost-of-living adjustment (COLA) applied to the former spouse’s share? If the divorce decree awards the former spouse a percentage of the disposable retired pay, the COLAs are typically applied to that percentage, increasing the payment amount over time. If a fixed dollar amount is awarded, there may be no automatic adjustments.
What documentation is needed to receive direct payments from DFAS? The former spouse typically needs to provide DFAS with a certified copy of the divorce decree, a court order specifically addressing the division of military retirement, and documentation proving the marriage duration and the service member’s creditable years of service.
What happens if the retiree files for bankruptcy? Military retirement pay is generally protected from bankruptcy proceedings. Therefore, the former spouse’s right to receive their portion of the retirement pay is typically not affected.
Is there a time limit for filing a claim to receive retirement pay? While there’s no strict federal time limit, it’s crucial to act promptly after the divorce is finalized. Delays can create complications and potentially jeopardize the former spouse’s claim, especially if the retiree’s circumstances change.
Can a prenuptial agreement affect the division of military retirement? Yes, a valid prenuptial agreement can affect the division of military retirement, but the agreement must be carefully drafted and comply with applicable state laws. Courts often give significant weight to prenuptial agreements.
What happens if the military member is not yet retired at the time of the divorce? The divorce decree can still address the future division of retirement benefits. It can specify that the former spouse will receive a share when the military member eventually retires. The specifics, though, will depend on state law.
How does VA disability compensation affect the former spouse’s share? If the military member waives a portion of their retirement pay to receive VA disability compensation, it reduces the disposable retired pay, potentially decreasing the former spouse’s share, unless specifically addressed in the divorce decree.
If the retiree returns to active duty after retiring, does it affect payments? A return to active duty after retirement doesn’t automatically affect the former spouse’s payments. However, it might lead to adjustments in the disposable retired pay if the return to active duty alters the calculation of retirement benefits.
Are there any tax implications for the former spouse receiving military retirement pay? Yes, the payments received by the former spouse are generally considered taxable income and must be reported on their federal and state income tax returns. It’s advisable to consult with a tax professional for specific guidance.

Navigating the division of military retirement benefits requires a thorough understanding of both federal and state laws, along with careful attention to detail in the divorce decree. Seeking legal advice from an attorney experienced in military divorce is essential to protect your rights and ensure a fair outcome.