Divorce can be a difficult and messy process regardless of a family’s circumstances. Still, there are certain scenarios that have a strong association with more difficult and complex divorces. Divorces that involve a military service member are often more challenging to navigate than civilian divorces.
People may have heard inaccurate information about what the process involves and what rules apply. They may have unrealistic expectations because of the misinformation that people share about military divorces. Benefits are often a key consideration in a military divorce scenario, and pensions are arguably the most valuable benefit that spouses may need to address.
Is a military pension at risk of division when a service member divorces?
State law guides property division
In some cases, spouses can reach their own settlement for property division matters. They agree on terms that they both recognize as fair and reasonable given the duration of the marriage and other key factors. If spouses cannot work out an amicable property division settlement, then they may need to litigate in family court. A judge decides how to divide their property in accordance with the state’s equitable distribution statute.
Typically, any pension benefits accrued during the marriage are part of the marital estate and theoretically subject to division when couples divorce. In some cases, they may agree to directly split the pension. Other times, they simply use the value of pension benefits to guide other major property division decision.
Military law can influence distribution
Some people mistakenly believe that military law governs asset division and determines whether a pension is divisible. As discussed above, state law actually determines how the courts divide the spouses’ property.
Military law only applies to the distribution of assets in accordance with the property division order. Under the 10/10 rule, the Defense Finance and Accounting Service (DFAS) can make direct pension payments to a non-military spouse in certain scenarios. If the service member had 10 years of qualifying service during the marriage and the marriage lasted 10 years or longer, then the non-serving spouse can receive direct pension payments from DFAS.
If the marriage was shorter than 10 years or if the service member spouse had fewer than 10 years of qualifying service during the marriage, then the spouses may need to establish an alternate arrangement for addressing the pension. Options include property division concessions and orders for alimony or spousal support.
Understanding how the courts handle key benefits can take much of the conflict out of an upcoming divorce. While military divorces are unique and challenging, they are often manageable once people understand the rules that apply.
