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Division of Military Benefits

by | Apr 13, 2023 | Divorce, Military Divorce

The Manely Firm recognizes that the stress that often accompanies a divorce may be compounded by the military lifestyle.  With frequent moves and long deployments, military divorces present unique challenges that we do not see in civilian divorces.   At The Manely Firm, we understand the intricacies of a military divorce.  Whether you are a military member fighting to keep what you have risked your life and sacrificed to build or a civilian spouse wanting an award of your fair share, The Manely Firm will fight to protect what is rightfully yours.  That starts with having an understanding of how military benefits are divided in the event of divorce.

The Former Spouses’ Protection Act authorizes divorce courts to treat military retirement benefits, such as: educational benefits afforded through the GI Bill, Military Pension, home purchase benefits afforded through the VA Bill, and Survivor Death Benefits, as marital property that is subject to equitable division upon divorce. This is true of both vested and unvested benefits. The court also has the authority to address other military privileges, such as Tricare Health Insurance and life insurance.

As with any other asset accumulated during the course of marriage, there is no formula to be applied to divide these assets.  The trial court has broad discretion when making an equitable division of retirement accounts and shall consider all the relevant facts and circumstances when deciding awards. In other words, “equitable” division does not always mean 50/50.  Equitable division means whatever the court determines if fair based on the totality of the relevant circumstances.  Those circumstances include, but are not limited to, the cause of the breakdown of the marriage, the length of the marriage, the respective monetary and non-monetary contributions brought to the marriage by the parties, as well as the discrepancy of incomes.

As with any other divorce, courts will also address the issues of alimony and child support in military divorces.  Alimony will be based on a wide range of factors, including, but not limited to, the payor’s ability to pay, the payor’s need for financial support after divorce, the length of the marriage, and the discrepancy of incomes of the parties.  Courts are granted a large amount of discretion when deciding if a request for alimony is either granted or denied.  Contrarily, courts are required to award child support in an amount calculated by law.  Although certain upward and downward deviations may apply, child support is largely based on the respective gross incomes of the parties.  An active or retired military members income is defined to include his military income, retirement pay, and pension. Although disability compensation is non-divisible, such compensation may be taken into consideration for child support and alimony payments.

The Former Spouses’ Protection Act establishes a payment mechanism where the federal government pays an eligible former spouse their share of the military member’s retirement pay directly, alimony and child support.  There is a process to have such payments directly withdrawn from the military member’s monthly check and paid directly to the spouse, the civil equivalent to an Income Deduction Order.  However, that mechanism only pertains to marriages that have lasted 10 years or more and those payments shall not exceed 50 percent of the military pay.

This is just a brief overview of the intricate aspects of a military divorce.  If your military family is on the path of divorce, whether you are the military member or spouse, you want to have an advocate that is well-versed in the combination of military requirements and the civilian court system. We are that advocate!