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Divorce and the division of military pensions - II

In our last family law post, our blog began discussing how the division of a military pension often emerges as one of the most contentious issues in any military divorce. We also started discussing how any such division will be governed by the Uniformed Services Former Spouses' Protection Act.

To recap, the USFSPA, passed by Congress back in the early 80s, dictates the following:

  • Military disposable retired pay -- i.e., the monthly pension payment to which a servicemember is entitled -- can be treated as marital property subject to division in a divorce.
  • Civilian spouses may receive their share of any military disposable retired pay awarded by a divorce court via direct payments from the Defense Finance and Accounting Service or another retired pay center.

Two questions that naturally arise from this discussion are how much of the military spouse's pension is actually subject to division and when exactly a civilian spouse can expect to start receiving their share of the pension payments.

Regarding the first question, the USFSPA sets forth two conditions:

  • Only the marital portion of the pension, meaning that which was accrued during the course of the marriage, is subject to division.
  • No more than 50 percent of the pension is subject to division.

While this may sound shocking, it's actually in keeping with the property division laws of most states (including Arkansas), which call for both a distinction between separate and martial property, and an equitable distribution of the latter.  

Regarding the second question, the simple answer is that the majority of states say there is really no way to expedite the pension payments. In other words, a spouse will essentially have to wait until their former spouse retires before they start receiving their money.

As evidenced by the forgoing, military divorce -- particularly as it relates to property division -- can prove to be exceedingly complex. As such, those with questions, concerns or a desire to move forward should strongly consider speaking with an experienced legal professional.

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