Am I Entitled To My Spouse’s Military Retirement If We Get Divorced?

Military Divorce Lawyer

With so many divorces in the military, it is necessary for laws to exist protecting the former spouses of Servicemembers. The most important of such laws is the Uniformed Services Former Spouses Protection Act (USFSPA), 10 U.S.C. 1408. Although divorce is a matter for civilian courts, the military legal system does recognize the protection offered by the USFSPA and works to inform Soldiers and spouses of the law’s importance.

The Uniformed Services Former Spouses Protection Act was enacted to protect former spouses, but it is important to understand that it does not automatically give a former spouse any right to a retired Servicemember’s pension. To collect under the USFSPA, a former spouse must have been awarded a portion of the Servicemember’s military retirement pay as property in their final divorce decree. The USFSPA allows the court to treat the military retirement pension just as it would a civilian pension plan.

In addition, a former spouse must meet the eligibility requirements as set forth by this act. There must be at least 10 years of marriage, with an overlap of 10 years of military service creditable towards retirement. This is called the 10/10 rule. There are also jurisdictional requirements over the Servicemember that must be met by the court issuing the decree. However, these guidelines and eligibility requirements do not apply to awards of child support or alimony under the act. The judge issuing the divorce decree may garnish military retirement pay to provide the former spouse with child support or alimony even if the former spouse does not meet the 10/10 rule requirements.

The amount of money the former spouse becomes entitled to will be determined by the judge rendering the final divorce decree. The maximum amount that can be paid to a former spouse is 50 percent of the Servicemember’s disposable retired pay (gross retired pay less allowable deductions, including VA disability pay). This 50 percent is not necessarily the maximum if additional pay is garnished from the retiree for alimony or child support. In the instances where additional alimony or child support is paid to the former spouse, the total amount may not exceed 65 percent of disposable retired pay.

Additional benefits are available to former spouses who meet the requirements of a longer marriage and a longer overlap of service by the Soldier. For example, a spouse who is married to a Soldier for at least 20 years at the time of the divorce, and the Servicemember has at least 20 years of creditable service, and there is an overlap of at least 20 years between the two, is eligible for benefits under the 20/20/20 rule. These benefits, in addition to possibly 50 percent of the retired pension, include full commissary and exchange privileges and full medical benefits under the TRICARE system. These benefits remain for the life of the former spouse, or the Servicemember, or until the former spouse remarries. While it is true that all of these benefits terminate upon a subsequent marriage by the former spouse, the commissary and exchange benefits will revive if the subsequent marriage of the former spouse terminates. The medical benefits would only revive if the new marriage is terminated by annulment.

It is important to understand the distinction of these yearly guidelines and how they relate to benefits for the former spouse. Under the 20/20/20 rule, an unmarried former spouse will be treated exactly the same as the retired military member, or as a spouse of a deceased military retiree.

Note: Only former spouses meeting the requirements of the 20/20/20 rule are awarded these full military benefits for the remainder of their unmarried lives.

If you or a loved one is concerned about what retirement and health insurance benefits are available to a military spouse contemplating divorce, please contact the legal professionals at Martinson & Beason, P.C. at 256-533-1667.