A divorce in which at least one spouse is a military servicemember is like a civilian divorce in many ways. The divorcing spouses will have to make difficult decisions on many components of their shared life.
However, one often contested item that differs is the division of military pension benefits or retirement pay. When one spouse is a military servicemember, the question of whether the other spouse will receive a portion of your pension benefits can be complex and dependent on multiple unique factors.
Defining the Uniformed Services Former Spouses’ Protection Act
A federal statute, the Uniformed Services Former Spouses’ Protection Act (USFSPA) allows for the direct distribution of pension benefits to former spouses from the Department of Defense (DOD). It also enforces strict eligibility criteria, including:
- Length of the marriage. The marriage of the divorcing couple must have lasted at least 10 years.
- Length of overlapping military service. The marriage must have overlapped with at least a 10-year period of creditable military service.
- Percentage of retirement pay. The spouse may not receive direct payments from the DOD that exceed 50% of retirement pay.
When the state court awards the split of retirement benefits according to property division guidelines and the above criteria are met, the DOD may directly distribute a portion of pension benefits to the former spouse.
Jurisdiction can significantly affect the outcome
According to The Balance, you and your spouse may have options as to which state to file for divorce in. You may maintain legal residence in Texas but have resided in California for years with your family on military assignment. In another case, you may live in Texas on military assignment while you maintain legal residence in Florida and your spouse has moved back to their home state of Georgia.
Whatever your unique situation may involve, the laws of the state in which you file for divorce in will determine much of your key issues. When you file for divorce in Texas, state law will determine whether to split your pension benefits. Even when you and your spouse do not meet USFSPA’s strict eligibility requirements, Texas community property guidelines can order you to pay a portion of pension benefits directly to your spouse.
Determining the division of military pension benefits can be complicated. Consider discussing your situation with an attorney to learn what to expect.