- posted: Jun. 25, 2023
When one of the divorcing spouses is attached to the military, his or her pension may be included in the marital assets that are subject to equitable distribution in Virginia. Although this division is carried out by a state court, federal law and rules apply.
The Uniformed Services Former Spouses’ Protection Act (USFSPA) protects a non-military spouse’s right to share in retirement benefits earned by their military spouse. The act authorizes local courts to divide retirement pay, including military pensions. It does not require that the pension be divided in any particular way, however. That is up to the court with jurisdiction over the divorce.
A court has jurisdiction over a military member’s divorce if one of these three conditions are met:
- The service member resides in the court’s territorial jurisdiction and is not in the jurisdiction for a military assignment.
- The service member is domiciled in the court’s territorial jurisdiction.
- If the service member consents to the court’s jurisdiction.
The court with jurisdiction has authority to apply the law of equitable distribution, which means dividing the pension fairly but not necessary equally. The court uses a number of factors to decide on equitable shares, including each spouse’s economic and noneconomic contributions to the marriage.
Once the court divides the pension, the non-military spouse may be entitled to receive his or her share directly from the Defense Finance Accounting Service under what is known as the 10/10 rule. This applies if the couple was married at least 10 years and if at least 10 years of the marriage overlapped with the military member’s service. However, the USFSPA limits the direct payment amount to 50 percent of the military spouse’s disposable retired pay, which is gross retirement pay minus certain deductions, such as VA disability pay. Any share awarded by the court in excess of that amount would have to be sought separately from the military spouse’s other assets.
Another method of distributing military pensions is for the court to award the full pension to the military spouse, giving the other spouse additional marital assets in exchange. This requires determining the pension’s present value and how much the military spouse will likely receive over his or her estimated lifetime. This method is often favored by non-military spouses who don’t meet the 10/10 rule for direct payment, since it allows for a full and final settlement of pension rights.
At Harding, Harding & Harding Attorneys at Law, our Virginia family law attorneys have years of experience representing military members and their families in divorce matters. We have offices Virginia Beach, Chesapeake, and Norfolk. Contact us online or call 757-499-2600 for a consultation.
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