Military Pension Division in New York Divorce Cases
Provided by HG.org
One of the major issues involved in a divorce case is the division of the coupleís assets and debts. For many couples, a major asset is their retirement fund or pension. In some cases, these assets are subject to division in a divorce case. While this process is complicated enough on its own, there are additional complications when the couple involves a service member.
These individuals often have additional concerns related to their particular situation. Additionally, special rules apply to these pensions and the division of assets when a service member is involved. It is important for individuals to talk to an experienced divorce lawyer when they are going through a divorce and a military pension is involved.
Military Pension Basics
Service members are entitled to a pension after retiring if they have provided 20 years of military service or otherwise acquired a sufficient number of points if they are enrolled in the National Guard or reserves. This pension has a fixed value and provides relief to retired service members from leaving the military. It is paid until the service member dies.
According to the Uniformed Services Former Spouse Protection Act, military pensions can be divided for child support, spousal support or the division of property. However, the law does not require it; it simply allows it. Each state has the power to divide military pensions according to their own state laws.
A military pension can represent a valuable asset of the marital estate. Even if retirement is many years away, it has a potentially large future value and should be factored into current divorces. If a spouse does not factor in a military pension, he or she could lose a significant amount of value that he or she could have a right to receive. A spouse may choose to forego a portion of the military pension in order to receive a higher present value of property.
Length of Marriage
While there is a common misconception that a spouse must be married for at least ten years to have a right to his or her spouseís military pension, this is not correct. Instead, the Uniformed Services Former Spouse Protection Act says that if a marriage lasted for 10 or more years during which time the military spouse served at least ten years and the pension is being divided as part of a property settlement, then the non-military spouse can receive his or her share of the pension payments directly from the Defense Financing and Accounting Services. However, this does not directly impact whether a spouse is entitled to future pension payments, only the manner in which he or she will be paid.
It is important for spouses to understand the portion of the pension pay that is valid for division. Disability benefits are not subject to division. Disabled service members can ask for disability benefits in exchange for the equivalent amount of retirement pay, thereby waiving a portion of their pension amount. This also affects the non-military spouse since he or she can waive a portion that the spouse may have been able to receive.
Support Issues Involved in Military Divorces
Another area that is unique to military divorces when compared to civilian divorces is support. Military laws and guidelines provide commanders with the ability to impose pressure on military members who are refusing to pay court-ordered child support or spousal support. Even if commanders do not actually garnish the military memberís pay or require them to pay this support directly, the commander can use military law to punish the military member. Potential penalties in this context may include lowering the service memberís rank, reducing or eliminating leaving time, imposing loss of liberty or cutting pay. Many military members will not want to face consequences of this nature and will instead choose to pay the required support.
Contact a New York Divorce Lawyer for Assistance
If you are a service member or are divorcing a service member, it is important that you contact a New York divorce lawyer who has experience in military divorces. It is important that you understand what military benefits you are eligible for and how a divorce can impact these rights. A divorce lawyer can represent you at each stage in the process. He or she can draw up a settlement agreement for your spouse and his or her lawyer to review. He or she can also represent your position in court in case you do not agree on the terms of your divorce or how a military pension should be divided.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.