Ins and outs of retirement pay and divorce - Military Law, Military Law Advice, Ask a Lawyer - Army Times

Ins and outs of retirement pay and divorce

If you read my last column, I have probably already answered your questions about whether your spouse, or soon-to-be former spouse, is entitled to a percentage of your military retired pay and if so, what percentage that is. The next question is: When does he or she get it?

When former spouses receive their percentage of military retired pay is a question of state law, and there are two possible answers: upon eligibility for retirement (at your 20-years-of-service mark) or upon retirement (your actual retirement date, whether it be 20 years, 25 years, or 30 years of military service).

If your state is one where payment is made upon eligibility for retirement, it may impose an obligation on you to begin paying your former spouse’s share of retirement starting on the date that you become eligible for retirement (20 years), even though you intend to continue on active duty. Should this be the case for you, any accrual of a spousal interest in later advances in retirement pay, due to rank or time in service, is forfeited (which makes this the better of the two options for the service member).

If your state is one that is patient enough to wait until you actually retire and begin receiving benefits, which most states are, it leaves you with some control over the final disbursement and leaves your former spouse in the position of waiting for you to decide to retire before they have access to their property interest, i.e. their portion of your military retired pay.

So, what does that mean to you? As always, it depends on your particular situation. Assuming the determination has been made that your former spouse is entitled to a percentage of your military retired pay, the next question is: Are you on active duty? Followed by: Are you eligible for retirement, or have you already retired?

If you are still on active duty but eligible for retirement, it will depend on your state’s laws. If you are eligible for retirement, your state could order you to commence payments to your spouse even though you are not yet receiving your benefits. Will such an order make your life more difficult? Undoubtedly so, but if you were the one seeking the divorce, look on the bright side — you are a free agent. The majority of states, however, will not make you pay until you actually retire and you start receiving your monthly military retired pay.

Remember, every state is different and thus has different rules, regulations and requirements. You should check out your particular state’s policies. For additional information, check out Uniformed Services Former Spouses Protection Act at 10 U.S.C. Sections 1072, 1076, 1086, 1408, 1447, 1448, 1450, and 1451, as well as the relevant law in your state. Cornell University has an online version of the U.S. Code.

You should also be forewarned that your soon-to-be-former spouse may be entitled to additional benefits upon divorce. Specifically, he or she may be entitled to commissary and exchange privileges, and medical benefits. That depends on whether the spouse is still eligible to be listed in the Defense Enrollment Eligibility Reporting System database.

If you are looking for the latest information on divorce in the uniformed services, one source is the American Retirees Association. This site provides up-to-date information on pending amendments to the Uniformed Services Former Spouse Protection Act, as well as an analysis of the law.

I’d like to thank Nicole Helmer, my firm’s very knowledgeable divorce associate, for her help in preparing this article.

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The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

Mathew B. Tully is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (http://www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.

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