The military lifestyle is hard on both the service member and their spouse. For some military couples, their relationships may ultimately end in divorce. When going through a divorce, many military families experience the same concerns and issues that civilian ones do. However, military couples must take other important factors into consideration, such as which state to file in, division of pension benefits, division of military benefits, and legal representation.
Which state do you file a military divorce in?
Filing for divorce may be complex for military families. A military member may file for divorce in the state in which they are stationed, the state in which he or she is a legal resident, or the state in which their spouse is a legal resident. Typically, the spouse filing for the divorce will file in the state where he or she lives.
How are military pensions divided in a divorce?
A military pension, also known as retirement pay, is provided through the Divorce Finance and Accounting Service (DFAS). For an ex-spouse to receive direct pension payments from the military, the couple must have been married for 10 years overlapping with 10 years of military service. If an ex-spouse does not qualify for direct pension payments, he or she may still be able to collect a portion of the funds. According to Military.com, to receive a portion, the pension must be included as part of the divorce settlement.
Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), divorce courts are allowed to divide a military pension for the purposes of child support, spousal support or property settlement in accordance with its state’s laws. The maximum amount of pension pay that an ex-spouse can receive is 50 percent. While the USFSPA does allow the division, it does not require it. For this reason, it is important to take into consideration how each state handles the division of military pensions. Military pensions are considered a high-value asset, so they must be included in a divorce agreement even if the service member’s retirement is years away.
How are military benefits divided in a divorce?
Military families should take the Thrift Savings Plan (TSP) and Survivor Benefit Plan (SBP) into consideration when going through a divorce. The TSP is a retirement savings plan, similar to a 401(k) or IRA, that service members have the option of contributing to during their active duty. A service member’s TSP can be divided between divorcing parties. The TSP can also be given to a party in exchange for another asset.
When a service member retires, he or she may be able to purchase a SBP as a death benefit. By establishing a SBP, the service member can designate a beneficiary to receive ongoing payments after he or she dies. Without SBP coverage, pension payments will stop after the service member passes away. When establishing a SBP, the service member can select a base amount. This amount can be as high as 100 percent of the pension or as low as $300. If the service member does not establish a base amount, the DFAS will deem it to be the full retired pay. The SBP will pay 55 percent of the base amount to the designated beneficiary. An SBP costs 6.5 percent of the base amount, which is deducted from the service member’s pension pay.
A divorce court can require SBP coverage. For a former spouse to receive SBP coverage upon divorce, the service member can send the proper documentation to the DFAS or the spouse can request the court direct a deemed election. In a deemed election, the court will require SBP coverage and will send a copy of the order to the DFAS. If the spouse seeks SBP coverage outside a divorce decree, he or she must send the proper documentation as well as a copy of the divorce decree and the order that grants SBP coverage.
For election by the service member, the deadline is one year from the divorce. For deemed election by the former spouse, the deadline is one year from the date of the order granting SBP coverage. Only one person can be designated as a beneficiary of a SBP, so the benefit cannot be divided between two individuals. A SBP benefit can be suspended if an ex-spouse remarries before age 55. However, the coverage can be reinstated if the marriage ends with death, divorce or annulment.
What kind of legal representation do you need for a military divorce?
Despite the fact that each branch of the military has legal assistance attorneys on most bases, a military lawyer cannot represent a service member in a divorce. Service members and their spouses should seek the guidance of an experienced New York divorce lawyer who can protect their rights and represent their interests in divorce proceedings.
The New York divorce lawyers at Blodnick, Fazio & Associates, PC have experience representing couples in divorces with complex financial issues. Our divorce lawyers handle all aspects of matrimonial and family law, including divorce, child custody, alternative dispute resolution, maintenance (alimony), child support, domestic violence issues, property division, pre- and post-nuptial agreements, and modifications of agreements made pursuant to the divorce. Our firm will work with you to determine what course of action is best for you when going through your divorce and protect both your legal and financial interests during the process. For more information or to schedule a consultation, contact our New York divorce law firm at (516) 280-7105.