Military Pension & Divorce

Hi everyone. It's Stephanie Brinkley, Brinkley Law Firm. And today I want to talk to you about divorce and military pension. Let's face it, your pension is your greatest asset. And second only to child issues, it is something that's worth discussing and protecting. However, we often get the same questions from our military service members on the issue of military pension. So let's discuss those questions today.

The first question we often get is, we haven't been married for 10 years so my spouse isn't entitled to a portion of a pension, right? Wrong. There's something called the 10/10 rule. If you've been in the service for 10 years and your marriage has overlapped for those 10 years, your spouse is entitled to a portion of your pension and it will be paid directly to them by DFAS. If the marriage has been less than 10 years, they're still entitled to a portion of your pension, however, you will have to pay them directly at the time of retirement.

The next question is, what if I just retire before I get my pension? Well, that depends. Some states say that a pension must be vested before a spouse can be entitled to a portion. South Carolina is not one of those states. In South Carolina it is not a requirement that your pension be vested before it becomes subject to division by the court. Therefore, trying to take that route is probably not a good strategy and you'll short yourself in the meat, in the process. Additionally, if you're thinking about taking voluntary separation incentive pay, that is also a form of early retirement and it will be subject to equitable distribution. So just keep that in the back of your mind.

However, take heart, because the good news is the clock will stop running on your spouse's interest in your pension at the time the divorce decree is entered. So what that means is stay in the military, you're probably going to get promotions. Your pension is likewise going to increase over time, but your former spouse will not benefit from those increases because their portion of your retirement is determined at the time of the divorce.

The final question we receive has to do with pension and VA disability pay. If at the time of divorce, you're scheduled to receive a pension coupled with VA disability payments, it is true that the disability payments cannot be allocated as part of the spouse's pension portion. That is true. However, after the divorce decree is entered, if you decide to increase your disability payments and reduce the pension that you'll receive. In other words, you receive the same amount but it's divided up differently and you want to do this as a way to avoid paying money to your former spouse it probably won't work. And the reason is the court will step in at that point in time, if petitioned, and require you to pay the difference between what the spouse was expecting to receive and what they are receiving at the time of retirement.

All right, the bottom line is don't try to outsmart Uncle Sam or Lady Justice, it never ends well. Your military pension is your biggest asset, aside from your children, and it's worth fighting for and considering creative ways to honor your family commitments and protect your future. And only if you work with an attorney who appreciates the nuances of military benefits, coupled with family law, will you ensure that you have come up with a strategy that best protects your future and gives you hope for the days that are coming.

If you are interested in learning more about how family law can impact your military benefits, and you're a service member, please call our office for a consultation. We always offer a discounted consultation fee for our service members because of our gratitude for all that you've done for us. So again, call our office or go online to our website and schedule a consultation. We'd love to be a part of your legal strategy.