Unlike civilian divorces, military divorces can be quite complicated, and the reason why most spouses choose to get a divorce lawyer that specializes in military divorces.
One of the main questions the non-military spouse normally has is whether he or she will lose their military benefits if they get a divorce. The military spouse may wonder how much of his or her benefits the ex-spouse is entitled to and how to protect their assets. This includes benefits such as military retirement pay. Military retirement pension is one of the most valuable assets military spouses can accumulate during marriage, ranging anywhere from hundreds of thousands of dollars to over a million. So, let’s have a quick look at military retirement benefits, and how they can be affected by divorce.
Washington State Military Divorce Laws
State and federal laws, marriage duration during military service, documentation on divorce, and the capabilities of the divorce counsel all play a part in the outcome of military divorce settlements.Under federal law and Washington state law, military retirement pay can be a part of the marital or community property (assets) that are divided between former spouses upon divorce. And according to Washington state law, community property can be divided in a “just and equitable manner”.
What entitlement the civilian spouse gets depends on the length of marriage and length of service. A new law also takes into account the rank at which the military spouse was at during the period of the marriage and at divorce in calculating the benefit.
However, former spouses are not automatically entitled to their ex’s military retired pay. That must be awarded in a State court order as part of the divorce proceedings. That court order to divide retirement must meet extremely specific requirements. If not, the DFAS will not process it. It’s also important to note that the retirement benefits cannot be prescribed through Qualifying Domestic Relations Orders (QDRO). According to the Internal Revenue Code, section 401(a), military retirement is not a qualified pension and therefore, a QDRO is not needed, nor will it be sufficient.
So, if you’re considering divorce, you need to understand what you could be entitled to, how to access it, and why you need a military divorce lawyer to ensure you get the best representation possible.
Military retirement benefits by length of marriage
Yes, length of marriage does affect the military retirement benefit after divorce in terms of the value. But no matter the duration of the marriage, a court can divide and award military retirement benefits to a former spouse.
The longer the marriage, service period, and overlap of both, the more valuable the award for division of spousal retirement benefits. Here is a quick summary of how military retirement benefits may be awarded depending on the length of service and the marriage.
A court can award a share of the military retirement benefit to a former spouse even after just a brief marriage. However, for marriages of a few years at most, the share for a former spouse could be de minimis - too tiny or trivial to even merit consideration. One of the confusing issues, which causes person to think that short marriages are not entitled to benefits, is the access to direct DFAS military retirement payment. It is simply that once an ex-spouse meets the requirements of 10/10, they are eligible to apply to receive direct payment of military retirement benefits from DFAS. The 10/10 rule governs the method of payment.
In dividing military retirement on divorce, a domestic court needs jurisdiction (for e.g., Washington State) based on the member’s domicile or consent. Not that you need to be married for a minimum of 10 years to receive benefits.
In the case of a marriage that’s less than 10 years, the retiree will be the one responsible for sending payment monthly.
This refers to a minimum of 10 years of marriage to the service member, during which time the member served for at least 10 years. There should also be at least 10 years of overlapping military service creditable towards retirement eligibility.
When a spouse meets the 10/10 rule, if there is a divorce, the former spouse will receive their share of the retirement benefits paid directly from DFAS as opposed to through the ex-spouse.
20/20/20 benefits are statutory entitlements for 20 years of marriage that overlaps 20 years of service. When a spouse attains 20/20/20 benefit status, they are entitled to full benefits with an ID card.
Under the 20/20/20 rule, former spouses may also be entitled to other statutory benefits which are not subject to arrangement or negotiation on divorce. These include lifetime access to military exchange, commissary, and installation privileges. They are also eligible for TRICARE medical coverage. (This is reduced to one year only if the marriage fell under 20/20/15). The medical coverage also ends if the former spouse has medical coverage under an employer health plan or gets remarried.
Dividing the military retirement
Military retirement benefits only become due once the person actually retires and the ex-spouse remains un-remarried. The benefits end with the death of the retiree unless the conditions for a Survivor Benefit Plan are met.
The federal Uniformed Services Former Spouse Protection Act (USFSPA) lets state courts such as those in Washington State distribute military retirement benefits as property according to state rules. This means when a service person retires, their retirement benefits could be awarded as alimony (maintenance) based on divorce proceedings.
Under federal law, retirement pay is considered ‘disposable retired pay’ and falls under community property that can be divided on divorce. The right to these benefits is protected under the USFSPA.
Representation during military divorce
Getting a divorce in Washington State can be a confusing and complicated process. You have made sacrifices as the service member, or while your spouse has been active. However, when the marriage can no longer serve both of you, then it’s time to talk military divorce. Former military spouses could be eligible to retain certain benefits including military retirement benefits as outlined above. Or, they may have to pay more for others or lose some completely. Service members may pay more depending on the factors considered during the divorce (fault not being a major one).
In addition to that, certain circumstances can affect military retirement benefits. We already know that based on new regulations, the length of the marriage and the marital portion of the pension (i.e., what was earned during the marriage) are now part of the primary considerations when determining retirement benefits. Benefits are now based on the rank at divorce and not at retirement, which impacts the final value. Finally, the length of time left for the military spouse to retire as well as application for VA disability benefits can also pose a challenge to overcome when filing for divorce and agreeing to settlement terms. These are just a few of the reasons why a military retirement divorce lawyer is so important during the process.
Looking for an experienced military divorce attorney in Washington State?
Every divorce proceeding is unique and reaching a fair and equitable divorce settlement means hiring the right military divorce lawyer. It helps to have a knowledgeable and compassionate attorney.
Van Ackeren Law is one of the only firms that specializes primarily in military family law in Washington. So, schedule a one-hour consultation, and let’s discuss how divorce proceedings may affect your benefits and your best options based on your unique situation.