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A Word from Scott Shaw: Military Retirement Benefits and Divorce – Are You Really Getting 50%?

In legal terms, military retirement benefits are generally considered marital property. You may come across the mention of 10 years when researching what happens in a divorce. Whether you’ve been married 10 years or less, all the timeframe signifies is that the military will not automatically withhold a spouse’s share of a military retirement until after a couple has been married for 10 years.

But, after a divorce, if you think you’re entitled to 50% of the military retirement of your spouse, you may need to think again. 

Changes in the Law

Congress has continually redefined the portion of military retirement pay that can be considered marital property in a divorce. As an example, in one Supreme Court case, a husband elected to take a portion of his military retirement as disability instead, thus reducing his wife’s share of what 50% was considered to be at the time of divorce.

In 2016, Congress further decreased the amount of military retirement pay available to a spouse by redefining the term “disposable retired pay.” Now, Georgia courts are prevented from dividing any increase in military retirement pay that may occur post-divorce except for the amount attributable to cost of living increases.

What Do You Do Now? 

I have been the attorney for both military veterans and the spouses of military veterans. I have seen these nuanced issues arise often and have dealt with them for my clients as best as allowed under the relevant and current law. It’s not sufficient to simply state that military retirement pay will be divided 50/50 to protect the spouse in a divorce in the Georgia courts. This defeats the military spouse’s expectations of getting 50% of military retirement.

As the military spouse, instead of being awarded a share of the military pay, it may be better to get more of other assets or be awarded alimony. In those cases, whatever your military spouse does to reduce the amount of military retirement pay awarded to you in a divorce will not affect your ability to get paid.

The Other Side of the Coin

Of course, from the perspective of the military veteran, things look different.  From the military veterans perspective, it is correct to stress to the court that the portion of military retirement, such as disability income, or any increase in military pay resulting from a promotion in rank post-divorce, is not marital property and should be excluded in any equitable division of property.  It wouldn’t be proper for the court to offset other assets against the military pension, or to award alimony to make up for the military payment that is considered to be non-marital property by Federal law.

Military divorces have their own special rules and peculiarities. The award of a military pension in a divorce is perhaps the most important issue in a military divorce. This is why you should always have an experienced lawyer on your side. 

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