Military Divorce: Misconception About Military Retired Pay Division

| Jun 8, 2020 | Military Divorce |

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A Massachusetts’ servicemember’s military retired pay can be a valuable asset in a divorce.

In 1982 Congress passed the Uniformed Services Former Spouse Protection Act, which allows state courts to treat disposable retired pay either as property solely of the member, or as property of the member and his spouse in accordance with the laws of the state court.

One of the popular misconceptions about military retired pay is that it is only divisible if the marriage lasted at least 10 years. A state court can award a share of the military retired pay to a former spouse of military member even though the marriage lasted less than a year.

However, in order for the Department of Defense to make direct payments of a military member’s retired pay to the former spouse, the former spouse must have been married to the military member for a period of at least 10 years, with at least 10 years of the marriage overlapping a period of military service creditable to retired pay.

Also, direct payments will not be made for division of retired pay in excess of 50 percent or 65 percent if alimony or child support is paid in addition to division of retired pay. Disability pay is not subject to division as property but it is subject to garnishment for alimony or child support.

One very important provision of the USFSPA is that in order for a state court to be allowed to divide member’s retired pay, the court must have jurisdiction over the member by:

— His/her residence, other than because of military assignment, in the territorial jurisdiction of the court;

— His/her domicile in the territorial jurisdiction of the court; or

— His/her consent to the jurisdiction of the court.

For example, if John Smith is stationed in Ohio, but claims Nebraska as his legal domicile and if his spouse files for divorce in Ohio, the court would not be allowed to divide John’s military retired pay unless John consents to the jurisdiction of the court.

In addition to a share of the military retired pay, the former spouse has a right to receive certain military benefits so long as he/she meets the criteria. As the benefits are statutory entitlements, they are automatic and not subject to negotiation or deviation by a Massachusetts divorce court and the member cannot confiscate the spouse’s ID card, or otherwise suspend the spouse’s military privileges.

Former spouses will retain all military benefits and privileges, including medical, commissary, military exchanges, if he or she was married to the member at least 20 years, the member had at least 20 years of creditable service, and there was at least a 20-year overlap between the marriage and the military service.

If you, a family member of a friend are military personnel and going through a Massachusetts divorce, it is in your best interests to seek the advice of an experienced military divorce attorney who understands the complexities attendant to them.

Family law attorney Renee Lazar has concentrated his practice in the area of family law for over 10 years. Her practice includes military divorces, child custody and support matters and the division of military retirement benefits.

Attorney Renee Lazar has helped many clients in Middlesex County and the surrounding areas including military clients at Hanscom Air Force Base.

Contact us online, or call our office at 978-844-4095 to schedule a FREE one hour no obligation consultation to answer any family law questions that you may have.

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