Divorce proceedings tend to be disruptive. Spouses may need to change their living arrangements to minimize conflict. They may need to adjust their schedules if they have minor children and must share parental responsibilities. Couples also have to work out solutions for dividing their shared property.
When one spouse serves in the military, they may be eligible for a military pension. That pension could represent a significant amount of money and could be the primary source of financial stability for the family when the service member eventually retires. The non-serving spouse may not have a pension or retirement savings of their own. Do they have the option of requesting a share of the military pension during a divorce?
Pensions are generally divisible
People sometimes expect military rules to govern divorce involving service members. However, it is state law, not military regulations, that determines how people split their property when they divorce. Most assets acquired during a marriage are subject to equitable distribution rules.
Pension benefits accrued during the marriage are typically part of the marital estate. In some cases, a portion of the pension may have predated the marriage. Spouses may need to review financial records carefully to determine how much of the pension is subject to division.
State law guides the actual division of the property, and there is an opportunity to use creative solutions rather than dividing every asset directly. In cases where pension division is the best option, military rules can play a role in the asset distribution process.
The 10/10 rule applies in cases where divorcing couples must divide a military pension. Under the 10/10 rule, the non-military spouse can receive direct pension distributions if the marriage lasted at least 10 years and the service member had 10 years of service during the marriage.
The Defense Finance and Accounting Service (DFAS) can make direct distributions to the non-military spouse if the 10-10 rule applies. If the marriage was shorter or the service member’s father did not have adequate qualifying service during the marriage, then they may need to arrange an alternate means of sharing the pension or integrating it into the overall property division settlement.
A military pension is often at risk of division when service members divorce. Discussing marital circumstances and assets with a skilled legal team can help those preparing for military divorce understand what they can expect.
