At Cove Family Law, I frequently work with military families navigating the complexities of divorce. One of the most challenging aspects of military divorce is understanding how retirement benefits and other military-specific assets are divided.
Military Divorce Basics: What Makes It Different
Military divorces involve all the standard elements of civilian divorces—division of property, child custody, and spousal support—but with additional layers of complexity. Military service members and their spouses have access to unique benefits, and the rules governing how these benefits are divided during divorce differ significantly from civilian divorces.
Whether you’re an active duty service member, a reservist, a National Guard member, or a military retiree, understanding these distinctions is crucial to protecting your interests and ensuring a fair settlement.
The Uniformed Services Former Spouses’ Protection Act (USFSPA)
The cornerstone of military retirement division is the Uniformed Services Former Spouses’ Protection Act (USFSPA). Enacted in 1982, this federal law allows state courts to treat military retirement pay as property that can be divided during divorce.
Key points about USFSPA:
- Does not automatically entitle former spouses to military retirement benefits
- Authorizes state courts to distribute military retirement as property according to state law
- Sets guidelines for the direct payment of a portion of a military member’s retirement to the former spouse
- Direct payments through DFAS (Defense Finance and Accounting Service) are only available if the marriage lasted at least 10 years, overlapping with at least 10 years of military service (the “10/10 rule”)
Division of Military Retirement Benefits
What Can Be Divided
Disposable Retired Pay: This is the retired service member’s gross retirement pay minus certain deductions. Generally, this is the primary asset subject to division.
Thrift Savings Plan (TSP): Similar to a 401(k), TSP contributions made during the marriage are typically considered marital property.
Survivor Benefit Plan (SBP): This insurance-like benefit can provide continuing income to a former spouse after the service member’s death. The court can order SBP coverage for a former spouse.
Important Time-of-Service Rules
The Frozen Benefit Rule (NDAA 2017)
The National Defense Authorization Act of 2017 significantly changed how military retirement is calculated in divorces. Under this “frozen benefit rule”:
- The service member’s retirement is now calculated based on their rank and years of service at the time of divorce, not at retirement
- This protects service members from having to share post-divorce promotions and additional years of service with former spouses
- This means retirement division is based on what the service member would have received if they had retired on the divorce date
The 20/20/20 Rule for Medical Benefits
For former spouses to retain full military medical benefits (TRICARE), they must meet the “20/20/20 rule”:
- The marriage lasted at least 20 years
- The service member performed at least 20 years of creditable service
- The marriage and military service overlapped for at least 20 years
If a former spouse meets the “20/20/15 rule” (15 years of overlap instead of 20), they may receive one year of transitional medical benefits.
Reserve and National Guard Considerations
For reservists and National Guard members, retirement division becomes even more complex:
- Retirement is based on points rather than straight years of service
- Points earned during the marriage are typically subject to division
- The “reserve retirement” often doesn’t begin until age 60, creating unique timing challenges
Getting Help With Your Military Divorce
At Cove Family Law, I understand that military divorces require specialized knowledge and approach. The division of military retirement and benefits can significantly impact your financial future, whether you’re a service member or spouse.
I have extensive experience helping both service members and military spouses navigate these complex waters. My goal is to ensure that your rights are protected and that military benefits are divided fairly and under applicable laws.
