Military Retirement Division in Divorce

When couples divorce, retirement plans are often divided, along with other property. For military pensions, the maximum amount of pension a former spouse can receive is 50%. More than one former spouse can receive a share of a retiree’s military pension, however the total can not be more than 50%. In order for a former spouse to receive direct payment of military retirement pay in a divorce from the Defense Finance Accounting Service, the couple must have been married for at least 10 years, and these years must have overlapped with 10 years of military service.

For example, if a couple was married for 14 years, but one spouse was only active in the military for 7 of those years, then the non-military spouse would not be eligible for direct military retirement pay because the overlap of the service was not at least ten years. If the overlap and service is less, then the retired spouse pays the former spouse directly.

The law only allows for the division of disposable military pay. Disposable retirement pay includes all retirement pay minus certain expenses such as Survivor Benefit Plan premiums and debts to the government. It also does not include a disability waiver of retirement pay. Retirees with a disability rating of less than 60%, may receive a portion of military retired pay as a nontaxable disability payment. 

This portion of a military retirement is not divisible. However a retiree with a disability rating of 60% or more is eligible to receive full retirement pay and their full portion of disability pay. In this case, there would be no offset and the full amount of retirement pay would be eligible for division. 

The calculation of military retirement pay for already retired members is simpler than calculations for those not yet retired. For those retired, the marital share is multiplied against disposable retired pay. To determine the marital share, it is necessary to divide the months of marriage that overlap military service by the total months of military service at the time of retirement. The former spouse is entitled to 50% of the marital share. 

A reserve retirement is based upon the a combination of active duty service days and active and inactive points earned in the reserves. A reserve pension is harder to calculate and requires a reserve retirement points statement for calculation. A reservist who has at least 20 years of qualifying service is eligible for retirement. However reservists do not receive retirement immediately upon retirement as do those who retire from active military service. A reservist will begin receiving retirement pay generally around age 60. The reserve component also has a Survivor Benefit Plan which must be elected within 90 days of eligibility to retire. Once the election is made, it is effectively irrevocable.

How can an attorney help with retirement division? A Colorado Springs divorce and family law attorney can guide you through Colorado Springs retirement division. This allows you to focus on moving forward to a better future rather than on spending your time trying to figure out the overly complex court system. Contact us at 719-344-5523, or complete our online form to set up a free thirty-minute informational consultation.