How is military retirement pay divided in divorce? Military retirement pay is considered marital property and is divided based on how long the marriage lasted during military service. In Washington, the division must be done “justly and equitably” and is often split 50/50.
However, exact calculations vary based on your circumstances. If you are going through a divorce and are unsure of what you may be entitled to, a Seattle divorce lawyer may be able to help.
Military Retirement Pay is Considered Marital Property in Divorce
Military retirement pay is generally treated as marital property, at least in part, during a divorce. This means that the portion of military retirement earned during the marriage is typically subject to division, but the portion earned before marriage or after separation is considered separate property.
Military retirement pay can be divided in a divorce, as it is treated similarly to a 401(k), with it split along just and equitable lines between the two parties, regardless of who contributed to the account.
There are exceptions where this pay may not be split, but they are rare. The most common reason would be if military retirement were included in a prenuptial agreement. The details outlined in the agreement could supersede any legal rights typically given to military spouses. If a prenup is an avenue you are considering, a Seattle prenuptial and postnuptial lawyer can guide you through the process.
Federal Law Allows But Does Not Require Division of Military Retirement Pay
Federal law allows state courts to divide military retirement pay, but it does not require them to do so. The Uniformed Services Former Spouses’ Protection Act (USFSPA) permits state courts to treat disposable military retired pay as marital property. Additionally, it gives states discretion to decide whether and how to divide it.
However, federal law does mandate the 10/10 rule. This means that if a military couple was married for 10 years that overlaps with 10 years of service, the spouse is entitled to automatic payments directly deposited into their account.
In other words, federal law opens the door to splitting military retirement pay in divorce, but state divorce law determines the final amount each party is entitled to, which in Washington is generally 50%.
Only the Marital Portion of Military Retirement Pay is Divided
In Washington, only the portion of retirement accrued during marriage would be taken into account when considering military retirement divorce. This protects the retirement that you accrued before and after marriage.
For example, if a service member served 20 years and was married for 10 of those years, generally only half of the retirement may be considered marital, and that marital portion is then divided between the spouses. Washington is a community property state per RCW 26.16.030. Generally, property, including military retirement, is split along just and equitable lines, and situations may vary on a case-by-case basis.
This allows the service member to keep 100% of what they earned before they were married or after they divorced. It is important to note that even if the divorce occurs while the service member is still on active duty, the spouse is generally still entitled to a portion of the service member’s retirement pay.
Military Retirement Pay is Divided as Disposable Retired Pay Only
Only disposable military retirement pay may be divided in a divorce. Disposable retirement pay generally excludes disability pay and certain survivor benefit premiums. Disposable pay may also exclude some debt.
This limitation can significantly affect how much a former spouse ultimately receives, especially if the service member later elects disability benefits, as such benefits are not considered disposable pay and are not included in divisible military retirement pay.
Dividing assets can often lead to disagreements, which can escalate. Working with a Seattle high-conflict divorce attorney can help reduce stress when divorce proceedings are no longer amicable and require a more aggressive approach.
Disability Benefits are Not Divisible as Military Retirement Pay
VA disability compensation is not divisible as marital property. As discussed, if a service member waives a portion of retirement pay to receive disability benefits, that waived amount cannot be divided, and the former spouse’s share of retirement may be reduced.
While there are strict requirements to obtain disability pay, a qualified servicemember can waive retirement benefits for disability pay at any time, even after a divorce is finalized. This tactic is often used to bypass paying a former spouse what they are entitled to during a divorce proceeding.
This issue is a frequent source of post-divorce disputes and highlights the importance of careful planning and precise divorce language. It is often in a spouse’s best interest to secure other assets, such as property, to avoid losing out if the retirement plan changes in a military pension divorce.
How to Protect Military Retirement in Divorce
Dividing military retirement pay in a divorce requires a properly drafted court order. It must include all necessary details, or it risks not being upheld down the road. The order must:
- Clearly identify the parties
- Specify the formula or percentage awarded
- Comply with all federal and state regulations
- Be submitted correctly to the Defense Finance Accounting Service (DFAS)
To protect your retirement, it is essential that you document everything clearly in great detail. Only certain types of retirement qualify for division, so you must clearly outline what portions of your retirement fall under disability versus disposable pay. Working with a knowledgeable military divorce lawyer may be able to help determine what you actually owe.
Why Understanding the Military Retirement Division in Divorce Matters
Military retirement pay is often one of the most valuable assets in a military divorce. How it is divided can affect long-term financial security, both spouses’ retirement planning, and post-divorce stability.
Retirement division does not happen automatically; it must be specifically outlined in the divorce documents to be considered and paid out appropriately. Mistakes or misunderstandings can have consequences that last for decades.
Divorce is never easy, but it can be manageable. Working with an attorney who understands how military retirement pay is divided in divorce is essential to ensuring that both parties receive a fair and equitable division of assets after separation.
Hiring the Right Attorney Makes All the Difference
At Dellino Family Law, we understand the stress that you are under. Divorce is not a process that anyone wants to go through.
When dividing assets, our team is here to fight on your behalf and ensure you receive everything you are entitled to. Call today to discuss military retirement pay and divorce, and begin moving on with your life.
