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What should you know about military retirement benefits during divorce?

On Behalf of | Jan 26, 2024 | Divorce

Divorce can be complex, often especially when it involves dividing military retirement benefits. In Louisiana, property division is typically guided by the principles of community property, but there are specific nuances to consider when it comes to military retirement.

Military retirement payment division can vary depending on several factors, including the length of the marriage and the service member’s time in the military. Federal and state laws alike govern the division of these benefits.

Understanding the Uniformed Services Former Spouses’ Protection Act (USFSPA)

The Uniformed Services Former Spouses’ Protection Act (USFSPA) is a federal law that governs how military retirement benefits are treated in a divorce. Under the USFSPA, military retirement pay can be treated as property rather than income, which can be divided into marital assets. The Act allows up to 50% of a service member’s retired pay to be awarded to the former spouse.

Calculating the division of retirement pay

In Louisiana, which follows community property laws, the division of military retirement pay is generally based on the length of the marriage and its overlap with the service member’s military service. The portion of the retirement pay considered community property is usually calculated by dividing the years of marriage during military service by the total years of service.

For instance, if a couple was married for 10 years during a 20-year military career, the spouse may be entitled to 25% of the retirement pay. That’s half of the 50% earned during the marriage.

Impact of the 10/10 rule

An important aspect to consider is the 10/10 rule. This rule states that for a former spouse to receive direct payment of a portion of the military retirement from the Defense Finance and Accounting Service (DFAS), these terms must all be present:

  • Marriage lasted 10 years or longer
  • Military service lasted 10 years or longer
  • Both overlapped for 10 years or longer

If this standard isn’t met, the former spouse may still be entitled to a portion of the retirement pay, but the payments must be arranged privately between the ex-spouses in question.

Military divorces, even when they involve retired individuals, are complex matters. Seeking guidance for every aspect of a divorce can help to ensure that all options can be suitably explored and a plan developed based on the best interests of those involved.