Divorce & National Guard Retirement

by Doug O’Connell, Attorney at Law

Divorce in the military is a common occurrence. Multiple deployments and the stream of never-ending conflicts which national guardsmen and their families have to endure have taken a toll on the military family. When divorce is imminent, the parties must divide up the property in the estate and often, the military retirement is one of the most valuable assets in the community estate. Recognizing the value of the military retirement to the family unit, Congress provided the states authority to divide the military retired pay in divorce according to state law in 1982 by enacting the Uniformed Services Former Spouses’ Protection Act (USFSPA).

The USFSPA permits state courts to partition military retired pay in a divorce for pay periods after June 24, 1981. The portion of retired pay subject to division by the courts is called “disposable retired pay”. The USFSPA defines disposable retired pay as the total monthly retired pay less amounts waived to receive disability compensation and Survivor Benefit Plan premiums. Disposable retired pay may also include other less common deductions, but for the most part, the survivor benefit plan and disability compensation are the main “reducers” when calculating disposable retired pay.
Generally, a retired national guardsman becomes eligible to apply for a retired pay after he or she reaches the age of 60, and after the completion of 20 years of qualifying service under the point system. A “good year” for retirement purposes includes any year in which the servicemember accumulated at least 50 points.

Military retirements are often viewed as a windfall or leverage point in a divorce proceeding. In the case where a reserve component servicemember is seeking dissolution of marriage, he or she should be carefully informed about the potential division retired pay. Unfortunately, some attorneys mistakenly apply an automatic division of 50% of retirement benefits. If it is determined that a former spouse is to receive a portion of retired pay, the formula should consider the points accumulated only during the time the couple were married, as well as the rank of the military spouse at the time of divorce. Without these two considerations, servicemembers risk giving up retirement payments the former spouse may not otherwise be entitled by law.

Doug O’Connell is a retired Colonel who focuses on representing military service members, veterans, first responders and their family members. Call 512-547-7265 or email Doug@OConnellWest.com.