FindLaw KnowledgeBasePublished: 2012-01-30
Determining marital property and dividing benefits can be difficult enough during a civilian divorce. Because of the complex issues and regulations, military divorces require proper documentation to ensure that both spouses are receiving the benefits to which they are entitled.
Military divorces follow Texas property division laws for civilian divorce. Texas is a “community property” state, which means that all property and debt acquired during marriage will be split by a court if the spouses cannot reach an agreement.
Under property division regulations, the court will order a division of real and personal property acquired during the time of marriage. The court will also confirm what is considered separate property during divorce proceedings if the spouses do not have a written agreement.
While military divorces follow the state property division laws, federal regulations also apply during property and asset division. The Uniformed Services Former Spouse Protection Act (USFSPA) was enacted by Congress to address dividing retirement benefits in military divorces and authorize direct payment of military pay to the former spouse.
The USFSPA allows Texas to treat military disposable retired pay as marital property, meaning that it can be divided during divorce. Disposable military retired pay is a servicemember’s monthly retired pay minus any qualified deductions.
Not all former military spouses are entitled to receive this pay. There are eligibility requirements former military spouses must meet in order to receive military retired pay. Federal laws will not divide and distribute any military member’s retirement to the spouse unless they have been married for 10 years or longer while the member performed 10 years of creditable military service. Court-ordered payments for child support or spousal support do not require a specific length of marriage to receive payment awards.
The USFSPA also permits former spouses to be designated as a Survivor Benefit Plan beneficiary to receive a Survivor Benefit Plan annuity in the event of a retiree’s death. Regulations impose that a former spouse must elect “former spouse coverage” with the appropriate military finance center within one year of the divorce being finalized to receive any possible benefits.
Military divorce can be complex and there are several other benefits that former military spouses may be entitled to. Dividing military retirement plans requires proper documentation and it is important to contact an experienced military divorce attorney to make sure your divorce decree is executed properly.