Making the decision to divorce is often challenging but necessary. When you’re ready to file for divorce, you must consider all of the implications of doing so. Military retirement and divorce is one of the core areas of concern for many veterans and their spouses. What will happen to your benefits? Will you lose what you’ve worked for by providing your service to the country?
At The Law Office of Afsana Chowdhury, PLC, we aid military families going through a divorce. Our military retirement and divorce attorneys service Fairfax, VA, and the surrounding Northern Virginia area. Allow our team to help you protect your rights throughout this process.
Military Retirement and Divorce
Every divorce is complicated, and when one or both spouses are in the military, it can be more complex than a standard civilian divorce. All of the same challenges faced in divorce, such as splitting assets, managing child custody and support matters, and settling financial affairs, apply, as well as factors that are unique to active service members and veterans.
The complexity comes in the way of military benefits and how they are divided. After 20 years of service, military professionals reach eligibility for a defined benefit military pension. Federal law outlines what occurs when a military couple divorces. The pension is considered an asset in the divorce and is subject to property division as a result.
Various factors play a role here, including the length of the marriage and when you served (if there was overlap between the period you served and the period you were married). Depending on these factors, your spouse may be entitled to as much as half of your pension.
The Uniformed Services Former Spouses Protection Act is a federal law governing how military retirement pay is treated by states in divorce matters. The law allows the court to split the pension 50/50 based on the value of the pension at the time that retirement began. The frozen benefit rule requires that the former spouses’ benefits are frozen at the dissolving of the marriage. The amount they receive is then dependent on the time in service and the rank during the marriage.
However, this does not guarantee that there will be an even 50/50 split, but rather leaves the equitable division of property in the hands of the state court. That’s why it is critical to have an experienced military retirement and divorce attorney in Northern Virginia on your side if you are going through this process.
What Is the 10/10 Rule?
Federal law states that a former spouse may be able to apply for direct payment of retirement from the Defense Finance & Accounting Service (DFAS) if they meet the 10/10 rule. That means that if the spouse spent at least 10 years within the marriage and at least 10 of those years overlapped with credible military service, they may be eligible for this benefit.
However, that doesn’t mean that the former spouse cannot receive payment unless they were married for 10 years. It just means they will need to go through the court to obtain it rather than receiving a direct payment from the DFAS.
Even if you were married for less than a year, the former spouse may still be eligible for some form of pension payment. That’s why it is so important to have a divorce attorney in Northern Virginia with ample experience in military retirement and divorce.
Military Retirement Divorce Calculation
There is no specific hard-and-fast rule about how a military pension must be divided. Rather, the military retirement divorce calculation follows the same methods used for the division of all other assets held within the marriage.
The division of assets in a divorce is dependent on many factors, including when the asset was obtained. In the case of your pension, if you were not married during your military service but after, the former spouse may not qualify for a portion of those funds.
In nearly all divorces, the court aims for an equitable division of assets. However, that does not always mean a 50/50 split for pensions. It means that the entire picture is looked at in determining how to equitably and fairly divide those assets.
Did the Military Divorce Retirement Pension Rules Change?
Although there is a lot of misconception about military divorce retirement pension rules, there is no set formula for calculating how much a person receives. However, one update to these rules occurred most recently within the Uniformed Services Former Spouse Protection Act. Originally passed in 1982, it was updated in 2017 with the frozen benefits rule.
The frozen benefits rule means that the former spouse’s benefits are frozen on the date that the marriage dissolution occurs. Simply, they are not able to collect benefits if you continue to earn from the military – rather, they are limited to the assets in the pension based on the available value at the time of the divorce.
What Are the Retired Military Benefits for Spouses When Divorced?
When you meet with our Fairfax, VA, attorney to discuss military retirement and divorce, we’ll provide specifics about your situation. There is no federal law that requires that a former spouse receive any type of military retiree’s pay. They do allow for the pension to be divided as marital assets.
The former spouse can continue to receive some benefits, including commissary, health care, and exchange benefits in some situations. To qualify, the spouse must show that enough credible military service was provided during the marriage.
Hiring a Divorce Attorney Near You Who Is Experienced in Military Retirement and Divorce
If you are considering divorce, whether you are the veteran or the spouse of a veteran, you need a highly qualified attorney by your side to protect your rights and to fight for the compensation you’re owed. At The Law Office of Afsana Chowdhury, PLC, you will receive exceptional legal support and guidance throughout the process.
When you meet with our military benefits and divorce attorney in Fairfax, VA, you will receive comprehensive information about your rights. Our experience makes us highly qualified to help you with this complicated type of divorce. Contact us today for more insight.