Pension is considered one of the assets that should be divided in a military marriage. However, unlike other support decisions that are controlled and calculated by the military, the pension is divided in accordance with the laws of the state in which the divorce has been filed. If the spouse has already retired, then the division of pension is quite simple as it is divided just like any of the other financial assets belonging to the couple. However, if the retirement of the spouse in the military is still a long way off, then there are two ways that the pension can be divided.
The first method of division of the military pension is by agreeing on the terms of division at the time of the divorce then waiting for the spouse to retire. In some cases of military divorce, the court may even choose to wait for the retirement of the spouse before making a decision on the division of the pension. In such cases, the court may issue what is known as a ‘wait and see’ order.
Waiting to see what happens in the future may sound tempting since the spouse may be due for promotion in rank or pay grade. However, spouses will incur a greater cost in legal fees as they will have to engage legal assistance in the future when the spouse has retired. It also means that you will have to meet and engage with your ex-spouse in the future. This may be something that you would like to avoid all together.
If you have been married for at least 10 years and the military spouse has served in the army for 10 years while you were married you may qualify for the 10/10 rule. In such a case, the military will be responsible for paying your share of the pension directly to you. You will therefore have no issues even if you choose to wait. However, if you do not qualify for direct payment of pension from the military you will be relying on your spouse to make the payments directly to you. This may cause many issues later. It would therefore be advisable to take the second method of pension payment.
The second method for the payment of pension is known as a lump sum payment. In this method of payment, the amount payable to the non-military spouse is calculated by an actuary or any other such financial expert. You can then be awarded the amount as a lump sum upon the divorce even if the spouse is yet to retire.
The decision to award the spouse with a lump sum rests with the court and largely depends on the laws of the state you have filed your divorce in. It is important to have professional legal assistance throughout the divorce. Military divorces are more complex than civil divorce especially when it comes to the division of assets such as pension and other benefits. A good lawyer will ensure that you’re rights are considered throughout the process.
Michael Hammer specializes in divorce for military personnel and is based in Austin, Texas.