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Quick Start Guide to Division of Military Pensions

By Attorney Jandi Keum

Are you a military servicemember, veteran, or military spouse? In a dissolution of marriage that involves military-related retired pay, there are special rules that are different from the division of civilian retirement accounts.

General Misconceptions
  1. My military pension is separate property. This is incorrect. All 50 states, including Colorado, treat military pension as marital or community property. This means that military pension is part of the assets to be considered for equitable distribution of property in a divorce action. However, any portion earned before the marriage is separate property.
  2. My marriage lasted less than 10 years, so my military retired pay is not divisible. This is incorrect. A military pension may be divisible whether you were married for two months or twenty years. Retired pay is divisible regardless of length of marriage, but the DOD will make direct payments only if the marriage lasted at least 10 years during a spouse’s military service. An easy way to remember this rule is by thinking of it as the “10/10 requirement.”
  3. Since my military retired pay is divisible, the entire amount will be divisible. This is not necessarily accurate. The only portion of military retired pay that is divisible is the pay resulting from the length of the marriage that overlapped with qualifying military service. For example, Linda is an Air Force retiree who served for 20 years. All 20 years of her service qualify for military retired pay. Linda and John married five years after Linda began her military service. John is not in the military. This means that the Court will only consider 15 years’ worth of accrued military retired pay as part of the marital property to be divided, and John is not entitled to any part of the five years of accrued retired pay that resulted from the period of service BEFORE the marriage.
  4. I am still in the military, so there is no retired pay to consider for division of property. This is yet again incorrect. When a military servicemember is still in the service and his/her service period counts toward retired pay, this means that there is an accrual of prospective retired pay. In other words, the retired pay may or may not come to fruition depending on the future of the military spouse’s career in the service. In this type of scenario, the military retired pay is still considered a part of the marital property, but the non-military spouse will not receive any part of that pay unless and until the military spouse is entitled to receive it.
  5. My non-military former spouse is entitled to my Veterans Affairs (VA) Disability Compensation. This is incorrect, too. VA Disability Compensation, Combat-Related Special Compensation (CRSC), and most other military disability retired pay is not considered a part of military retirement for property division in a divorce. However, these types of compensations could still become a part of a divorce action, not as property settlement, but as compensation for child support or spousal maintenance (commonly known as alimony).

Here at Janko Law, you can expect attorneys with specialized knowledge in military divorce law to help you reach your transition goals. We are committed to pursuing settlement to preserve family relations to the maximum extent possible, however also zealously represent your interests in contested litigation if desired or necessary. We can also handle appeals if the event that the trial court errors in fact or law. Give us a call for a complimentary case assessment at 855-429-1281, or fill out our confidential online intake form at www.jankolaw.com.

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