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Military Divorce

General

Do I need an attorney who is experienced in military divorce?

Yes. Military pension division and allocation of the Survivor Benefit Plan (SBP)—the survivor annuity associated with the military pension—is extremely complex. Additionally, your attorney should be familiar with what unique benefits exist for the military retiree, how to divide them in an equitable manner, and what protections are available for the former spouse after the divorce.

Is there a federal law that governs how military retirement benefits are to be divided?

No. There is not a federal statute that states how to divide military retirement benefits. The federal statute which allows military pension division is the Uniformed Services Former Spouses’ Protection Act (USFSPA), but it does not govern how to divide a military pension. It simply allows for the division of military pensions by state courts, leaving the rules up to each state.

Is there a federal law that governs how the SBP is to be divided?

There is federal law that allows for the award of SBP but there is no automatic entitlement to the SBP.

How much does the SBP cost?

The SBP premium costs approximately 6.5% of the selected base amount for active-duty personnel and approximately 10% for reserve/guard personnel.

How is the SBP premium paid?

The Defense Finance and Accounting Service (DFAS) deducts the SBP premium from retired pay.

Who pays for the SBP premium?

It depends. The default under federal law is that the SBP premiums are deducted “off the top” from gross retired pay, which means that the retiree and the former spouse share the payments in the same proportion as they share the underlying pension.

How much is the SBP annuity?

The SBP annuity is 55% of the selected base amount, which can range from $300 a month up to the full retired pay of the servicemember.

Neither party made a timely election for former spouse SBP coverage… now what?

Based on numerous equity factors, most likely, the only potential remedy is an application to the appropriate Board for Correction of Military Records.

I need a military divorce expert. Can you provide assistance to my local attorney as co-counsel and/or testify as an expert witness if necessary?

Yes. We have three attorneys in our office who are well-versed in military divorce— Brentley Tanner, Ashley L. Oldham, and Kaitlin S. Kober. They have experience with family law cases including military divorce cases in over 26 counties in North Carolina as well as experience in military divorce consulting on federal laws nationwide and internationally.

I am perplexed by all of the rules regarding military retirements. Should I consider hiring an attorney who has specialized knowledge in military pension division?

Our attorneys have considerable experience in preparing military pension division orders that will be honored by DFAS. In addition, with the different rules for military pension division and SBP, each client’s case needs a specific and specialized attention to detail to ensure compliance with requirements under federal law.

Servicemember/Retiree

Does my non-military spouse get half of my military pension?

Generally, this happens only if the marriage was during the entire military career. Otherwise, the spouse or former spouse typically gets half of the marital/community share (that is, the share acquired during the marriage).

A lawsuit was filed against me, and I’m deploying. What can I do to ensure no critical deadlines are missed?

The Servicemembers Civil Relief Act allows the delay of a civil case or administrative hearing for 90 days or longer if certain conditions in the federal statute are met.

Can a family member utilize my custody/visitation time while I am deployed?

Generally, visitation may be available to family members while a servicemember is deployed. However, the specifics depend on the facts of each case.

Spouse/Former Spouse

How long must I be married to be entitled to medical benefits?

For full medical benefits, you must be married at least 20 years, the other party must have served at least 20 years in the military, and there must be an overlap of at least 20 years between the two. Such coverage is usually called “20-20-20” coverage. There may also be temporary coverages available for former spouses who do not meet the 20-20-20 criteria.

Am I entitled to a share of my spouse's military pension?

No. There is no automatic entitlement to military retired pay under federal law.

Is VA disability compensation divisible as property?

No. However, VA disability compensation is includable as income for child support and alimony/maintenance purposes.

What effect does VA disability compensation have on pension division?

When a retiree has a VA disability rating of 50% or greater, there is typically no reduction in disposable retired pay, but there are exceptions. When a retiree has a VA disability rating of less than 50%, there is a dollar-for-dollar reduction in military retired pay.

Is there any way I can lose the SBP?

Yes. If a timely election for former-spouse coverage is not made, the SBP is lost absent an application to the appropriate Board for Correction of Military Records. Additionally, if a former spouse remarries before age 55, former spouse SBP coverage is suspended. Coverage may be restored if that marriage is annulled or ends in divorce or death. SBP may also be lost if the divorce decree does not specifically require an election for former spouse SBP coverage.

Can the court in the state I live in divide the military pension?

It depends. The court will have jurisdiction to divide the military pension if at least one of the following factors are met: (1) if the servicemember/retiree is domiciled in the state where the court is located, (2) if the servicemember/retiree consents to the court’s jurisdiction, and/or (3) if the servicemember/retiree lives in the state where the court is located for reasons other than military assignment.

Do I need a QDRO?

A QDRO divides private pension plans. The proper order to divide a military pension is called a Military Pension Division Order (MPDO).

How do I contact Parker Bryan’s military divorce attorneys?

You can call the office at 919-833-3115 and set up a consultation with our experienced military divorce attorneys. You may also visit our website at www.parkerbryanfamilylaw.com and visit each attorney’s biographical page for instructions on how to coordinate an initial consultation.