Afsana Chowdhury | April 17, 2024 | Property Division
A military divorce has several unique issues not found in other divorce cases. While dividing retirement accounts and pensions in any divorce case can be complicated, doing so in a military divorce requires specialized knowledge of federal laws that apply to military pensions. In Virginia, federal and state laws apply to pensions and retirement accounts in a military divorce.
Can States Divide Military Retirement Pay During a Divorce?
Members of the armed services are governed by federal law. That includes their pay and benefits. The Uniformed Services Former Spouses Protection Act (USFSPA) is a federal law that addresses military retirement accounts during a divorce.
The USFSPA gives states the right to include military pensions as marital assets in a divorce. It allows state courts to divide a military member’s disposable retirement pay. That does not mean a spouse is automatically entitled to a portion of a military member’s retirement account. All it means is that Virginia property division laws apply to military retirement.
What Does Virginia Law Say About Military Pensions and Retired Pay?
Under Virginia Code §20-107.3, a military pension is marital property that is subject to property division during a divorce. Military pension (retired pay) is subject to equitable division.
Spouses can negotiate a property settlement agreement that includes a division of military retirement pay. However, if the spouses disagree on how to divide the military pension, the court will divide the pay based on equitable division. Therefore, the court will consider the same factors it uses to decide how to divide other marital property in a divorce.
Equitable does not mean equal. The judge divides marital assets based on what is fair. Factors the judge considers when deciding what would be a fair division of military pension include:
- The length of the marriage
- Applicable tax consequences
- Each spouse’s mental and physical health
- Whether one spouse was primarily at fault for causing the breakup of the marriage
- The degree to which each spouse contributed to the marital assets, including monetary and non-monetary contributions
- The nature of how the property was acquired and used
- Each spouse’s debts and liabilities
A judge may consider other factors when dividing marital assets in a military divorce. For example, the judge may consider each spouse’s separate assets and resources when dividing a military pension.
A spouse is not entitled to military disability pay. Military disability pay is not subject to property division in a divorce.
However, the spouses could negotiate a property settlement agreement wherein the military member agrees to pay the spouse an amount each month to make up for the lost retired pay if they become disabled. Otherwise, a spouse could ask the court to retain jurisdiction to order alimony should the servicemember become disabled.
A judge can also order a spouse to pay the costs of a Survivor Benefit Plan (SBP) during a divorce. The SBP pays a designated beneficiary a monthly amount after the servicemember’s death. Therefore, the judge could order your spouse to pay to maintain an SBP as part of the divorce settlement so that you would continue to receive income after your ex-spouse’s death.
What Is the 10/10 Rule and How Does It Apply To Dividing Military Pensions in Virginia?
The 10/10 Rule applies to an ex-spouse’s military retired pay. Many people misunderstand the 10/10 Rule. They believe their marriage must have lasted for ten years or longer for a military pension to be included in property division. However, that is not the case.
A state can divide military retired pay regardless of how long the spouses were married. The service member does not need to be in the service for a minimum of ten years for an ex-spouse to receive part of their military retired pay.
Instead, the 10/10 Rule refers to how the Defense Finance & Accounting Service (DFAS) will pay the ex-spouse. If your spouse was in the military for at least ten years and your marriage lasted for at least ten years, DFAS will make direct payments of retired pay to the former spouse. However, if those criteria are not met, DFAS does not make direct payments for retired pay.
Get Help With a Military Divorce at The Law Office of Afsana Chowdhury, PLC in Fairfax, VA
Military property division can be complex. Therefore, you need an attorney who has a thorough understanding of the laws that govern military divorces.
For more information, please contact an experienced military divorce lawyer at Law Office of Afsana Chowdhury, PLC to schedule an initial consultation today. Our law office is located in Fairfax, VA.
We proudly serve Fairfax, VA, and its surrounding areas
Law Office of Afsana Chowdhury
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