What You Should Know About Military Retirement Pay

Divorce, Family Law

In a United States Supreme Court case, Hisquierdo v. Hisquierdo, the Court noted that federal employee deferred compensation benefits may be governed by federal law when applying conflicting state laws related to community property, so as to prevent “major damage” to “clear and substantial” federal interests.

However, under the Uniformed Services Former Spouses’ Protection Act (USFSPA), state courts have the explicit power to divide military retirement pay as community property. Under the USFSPA, state courts only have the authority to divide a service member’s “disposable retired pay” as defined within the Act.

If you’re planning to get separated and you’re worried about your retirement pay among other things, you should consult an experienced military divorce lawyer in San Diego to guide you through the process.

Domicile, residence, or consent

As a prerequisite to state court authority to divide the retirement pay, there must be proper domicile, residence, or consent at the time the pension is litigated. A member of the military must always have a “domicile” where they can be sued.

Typically, the domicile of a military member is the state they were domiciled in when they entered the military. Domicile is legally defined as a physical presence within a state with the intent to remain indefinitely. A residence is merely a place where the service member lives, regardless of their intent to stay in that place.

Also, a service member can consent to USFSPA jurisdiction even if they are not domiciled or don’t reside in the place they have been sued. If you’re not sure how this applies to your specific situation, a military divorce lawyer can help you.

Additional jurisdiction prerequisites

Even if there is jurisdiction based on domicile, residence, or consent, two other requirements must be satisfied under the USFSPA before payments may be ordered from a military pension. First, the parties must have been married for at least ten years. Second, at least ten years of service credit must have been earned towards retirement benefits during the marriage.

Disposable retired pay

Under the USFSPA, disposable retired pay is defined as the “net monthly amount payable to the military member after certain mandatory deductions.” These mandatory deductions include amounts owed by the member to the United States for overpayment of retired pay and recoupments from entitlement to retired pay, forfeitures ordered by a court-martial, amounts waived to receive disability compensation, the disability percentage of the member’s retired pay, and amounts deducted because of a Chapter 73 election to provide an annuity.

Disposable retired income does include any voluntary separation incentive (VSI) payments made at the early retirement of a service member. “Retainer pay” based on the number of years a member has served on active duty is treated as retired pay. Of this disposable retired pay after mandatory deductions, the court can only order a maximum of 50% payable for support or property division.

Community interest in retired pay

When calculating the community interest in retired pay, only the servicemember’s years on active duty are considered. To calculate the community interest, the total number of months the parties were married while the serving spouse was in the military is divided by the total number of months the serving spouse was in active-duty service. The right of a spouse to retirement pay is not transferable, assignable, or subject to inheritance.

Military survivor benefit plans

Under the USFSPA, a military member can designate their former spouse as a beneficiary of an annuity under the military member’s survivor benefit plan. Courts have the authority to order a military retiree to designate their former spouse as the beneficiary, to pay the premiums, and participate in the annuity plan.

After divorce, annuity benefits to a former spouse will only continue if the military member makes a new election within one year of the judgment of dissolution.

In instances where the judgment requires the military member to make the election, if the former spouse files a written request with the military within the one-year period from the time of judgment, the election will be deemed to have been made.

Where can you find a reliable military divorce lawyer in San Diego, CA & beyond?

Whether you or your spouse are service members, you likely want your divorce to be as painless as possible and any problems that may arise are handled with expertise and care.

Our experienced military divorce attorneys at JWB Family Law are at your disposal! We’ll answer all your questions, give you the necessary information, provide professional legal representation, and help you navigate this process. Get in touch with us and set up a free consultation today.

Categories

Connect With Us

            

Contact

San Diego Office
1620 Fifth Avenue, Suite 600
San Diego, CA 92101

Phone: 619.234.6123

Temecula Office
43537 Ridge Park Dr, Suite 100
Temecula, CA 92590
Phone: 951.297.3871

El Centro Office
300 S Imperial Ave, #10
El Centro, CA 92243
Phone: 760.460.4608

            

Domestic Violence Restraining Orders

A domestic violence restraining order is issued by the court and serves to protect someone from physical harm, continued mistreatment, or the threat of abuse. Such orders are often issued to family members or a member of the household. However, they can be filed...

Important Information on Child Custody

When it comes to family law, child custody is one of the most sensitive and emotionally charged issues. Deciding who will have legal and physical custody of a child can be challenging for everyone involved. It's a complicated process that requires careful...

What You Should Know About Military Retirement Pay

In a United States Supreme Court case, Hisquierdo v. Hisquierdo, the Court noted that federal employee deferred compensation benefits may be governed by federal law when applying conflicting state laws related to community property, so as to prevent “major damage” to...

The Link Between Domestic Violence and Child Custody

Domestic violence can include physical, verbal, emotional, sexual, and psychological actions. Other actions, such as threats or coercive behavior can also be considered domestic violence. Without a knowledgeable domestic violence attorney, it can sometimes be...

October Is Domestic Violence Awareness Month

In October of 1987, Domestic Violence Awareness Month was launched nationwide by the National Coalition for Domestic Violence to generate awareness for domestic violence issues and to connect individuals and organizations that work to combat domestic violence and to...

What Cat Ears Have to Do With Divorce

Quite a bit, as it turns out, and it has nothing to do with how you feel about felines. A study from researchers at the University of Washington shows divorce filings peak at two distinct times of the year – March and August....

FL-150 Forms – What you need to know

A frustrating but mandatory part of the divorce process in California is completing financial disclosure forms. One of these forms is the Income and Expense Declaration (FL-150), which requires both the Petitioner and Respondent to detail their earnings and spending. ...

Who gets inheritance money after a divorce?

Here are examples of community property and separate property:

Child custody schedule options and examples

When you are in a proceeding to decide how to share the custody and visitation of your children, many decisions must be made by you and the other parent on how you will co-parent your minor children. If you are unable to reach an agreement, the court will make a...

What’s worth fighting for in a divorce?

Here are examples of community property and separate property: