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Can you claim some of your spouse’s military pension in divorce?

On Behalf of | Aug 10, 2021 | Divorce

For many people, military service is a stepping stone to specific benefits like assistance paying for college or the development of job skills. However, other people view the military as a career. Their parents may have served before them, or they may simply want the stability that comes from a long-term government job.

If you married a military service member, you probably made a lot of sacrifices throughout your marriage to support their career. You may have had to put your own career development aside because you had to stay home to care for the children or could only keep a job for a year or two before you had to move to a new state or even another country.

The chances are good you have nowhere near the retirement savings your spouse does or the option to fund your own pension. Can you make a claim against your spouse’s pension when you divorce?

The Virginia family courts decide how to divide your assets

Despite what a surprising number of people believe, it is not military rules but rather state law that dictates how you divide your marital property. If you file for divorce while living in Virginia, then Virginia state laws will guide the property division process.

Family law judges in Virginia should try to equitably or fairly divide assets owned jointly by spouses. Employment benefits, including retirement savings and pensions, are often part of the marital estate. You can potentially ask for a fair and reasonable share of your spouse’s pension. Whether you negotiate your own settlement or litigate, it is likely that you have a right to at least some of the pension’s value.

When does the 10/10 rule come into play?

One of the reasons there is so much confusion around the division of military pensions and divorce is a misunderstanding of the 10/10 Rule. People think that they have to have been married for 10 years to claim any portion of the pension. However, the rule does not have to do with the division of the pension but rather who makes a payment to the non-military spouse.

If you have stayed married for at least 10 years and your spouse has worked as an active duty military service member for at least 10 years of your marriage, then the Defense Finance and Accounting Service may distribute your share of the pension to you directly. Otherwise, your court order will likely have to include instructions for your spouse to handle the distribution of the pension.

Navigating a military divorce with high assets often requires knowledge of both civilian and military procedures so that you can protect yourself as the spouse of a service member.

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