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Essential Things to Remember Regarding Divorce and the Military Pension

The Armed Forces Retirement System provides generous pensions to its members after retirement. The retirement benefits are statutorily authorized under Section 10 of the U.S. Code. These pensions are funded by tax revenues without separate pension funds in trust. The benefits paid are in the nature of a defined benefit plan. However, the benefits do not vest until retirement with at least 20 years of creditable service ( for participants in the military reserves and National Guard, there is a different pension system, with retirement at age 60.). The Uniformed Services Former Spouses' Protection Act (USFSPA) (Public Law 97-252, 96 Stat. 730(1982)) was signed into law in 1982 to deal with military retirement benefits (including military reserves and National Guard) awarded to former spouses.

Award of Retirement Pay

Awards of military retirement pay to former spouses are based on the member's pay grade at the time of retirement, as opposed to the accrued benefits as of the date of divorce. This results because there is no formula to determine interim accrued benefits as there would be in an ERISA type defined benefit plan. Assumptions can be made regarding the member's pay grade at the date of divorce and an amount of an award determined. However, caution should be taken when using this method. Specific dollar amounts awarded to former spouses from retired pay are not subject to COLAs after retirement and do not get the benefits of any COLAs while the member remains on active duty. However, if the estimated dollar amount is restated as a percentage of the member's retirement benefits, then the award may be subject to COLAs subsequent to divorce, if COLAs are awarded.

Awards of military retirement pay stated as a percentage may do the following:

a. Provide for COLAs to former spouse while the member is still on active duty.
b. Provide for COLAs and increases in pay grade to former spouse while the member is still on active duty.
c. Or any combination of a. and b.
d. Provide that COLAs and increases in pay grade go to the Member while still on active duty.
e. Provide for COLAs to former spouse after date of divorce only.

  • Federal law considers military retirement pay as marital property but states don't handle it the same way.
  • A state court order is not enough to establish your benefits.
  • You have only one year after the divorce to claim your share.
  • Military retired pay awarded to former spouses may be subject to cost-of-living-allowances (COLAs).
  • If you remarry before you're 55, you lose the benefits.
  • Benefits may be restored if your new marriage ends in death or divorce.
  • According to federal law, divorce spouses are not entitled to the service member's disability pay.
  • If you have been married at least 10 years and the spouse has the required amount of creditable service, the former spouse may be entitled to receive retirement pay directly from the Defense and Accounting Service office (www.dfas.mil)
  • If you and your military spouse were married for 20 years or more then you are eligible for medical coverage. Your dependent children continue to receive coverage. Visit your regional TRICARE office, www.tricare.osd.mil, for info on eligibility.
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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.