General Guide to Virginia Military Divorce
If one or both spouses going through a divorce are retired or active servicemembers, there are certain Federal and state laws that must be followed. For example, there are certain rules applicable to a division of servicemember's military retirement, disability pay, survivor benefits plan, etc. These cases can be legally complex. It is important to discuss your case with an experienced attorney who can advise you of your rights and obligations. This guide provides you with some general information on some of the issues that come up in a military divorce case.
Military Retirement Division in Divorce
Under Federal law, specifically the Uniformed Services Former Spouses Protection Act (“USFSPA”), state courts in a divorce case have the authority to divide a servicemember's “disposable retired pay.” Disposable retired pay is defined under the USFSPA as gross retired pay minus: (a) recoupments or repayments to the federal government, (b) deductions from retired pay for court-martial fines or forfeitures, (c) disability pay benefits, and (d) Survivor Benefit Plan premiums.
Under USFSPA, the military retirement pay subject to a division is calculated based on the member's rank and years of service at the time the court order dividing military retired pay (typically the final order of divorce) is entered. In other words, the former spouse's share of the military retirement is “frozen” as of the date of the divorce. If the servicemember receives promotions or longevity pay increases after the divorce decree, the former spouse's share does not benefit from those increases.
The Defense Finance and Accounting Service (“DFAS”) can directly pay the former spouse his or her share of the member's military retirement pay if the marriage overlapped with 10 years or more of the member's military service (“10-year rule”). However, if the 10-year rule is not met, it does not mean that the former spouse will not be paid his or her share, instead, the servicemember will have to pay the former spouse the share directly. DFAS will not pay the former spouse in this case.
If the military retirement was earned during the marriage (before the final separation), the retirement is considered “marital property” and the former spouse will be awarded a portion (which is typically one-half) of the “marital share.” Marital share is determined based on a fraction, the numerator of which is the total number of months the parties were married (prior to separation) during the servicemember's creditable military service, divided by the total number of months of the member's creditable military service. When the servicemember is already retired at the time of separation, the former spouse's share of the military retired pay is easily determined based on the fraction mentioned above. However, the more complicated cases involve where the servicemember spouse has still not retired at the time of the spouse's separation. In these cases, the former spouse's share is frozen as of the date of the court order dividing the military retired pay (see the Federal Law paragraph above).
Military Disability Pay
A servicemember may receive one of two different types of disability pay: (1) military disability retired pay; and (2) VA disability compensation.
Military disability retired pay is available for servicemembers who are sufficiently disable (at least 30 percent) and who cannot perform their duties. VA disability compensation is meant to cover injuries that occurred while on active duty or which were made worse while on duty. VA disability does not look at how the injury affects the servicemember's ability to perform his or her military duties. Both Military disability retired pay and VA disability compensation are excluded from the USFSPA definition of disposable retired pay, and therefore these cannot be divided between spouses in a divorce case.
If a servicemember waives any portion of his or her military retired pay in exchange for VA disability, the amount waived is subtracted from the military retirement, which results in a reduction in or even complete elimination of former spouse's share of the military retirement. Therefore, the former spouse may lose out on hundreds or thousands dollars per month of servicemember's military retired pay. However, recent changes in the law allows a servicemember with 20 years of service and a service-connected disability rating of 50% or more to be eligible for full VA disability benefits and full military retirement pay (concurrent retirement and disability pay). In such a case the former spouse's share of the military retirement is not affected.
In the absence of concurrent retirement and disability pay, the former spouse may want to negotiate a Property Settlement Agreement that would account for the loss in former spouse's share of the servicemember's military retired pay. Until recently, some Virginia court took the position that even if the servicemember reduced the former spouse's share of the retired pay by collecting a portion of the military retirement in form of disability, that the servicemember will have to indemnify the former spouse for the reduction. However, in 2017, the United States Supreme Court in Howell v. Howell, 137 S. Ct. 1400 (2017) held that such indemnification orders are unconstitutional.
In light of Howell v. Howell, the parties may want to address this issue in a Property Settlement Agreement, such as ask for an additional award of spousal support to account for the disability payments received by the servicemember or ask for a reservation to seek spousal support in the future, if the servicemember has not yet retired and claimed disability, but may do so in the future.
Survivor Benefit Plan
Survivor benefit plan (SBP) is an annuity plan, which pays a monthly payment to the designated beneficiary or beneficiaries after the servicemember dies. SBP payments begin at the death of the servicemember and continues for the life of the surviving spouse or former spouse (if a SBP election was made for the former spouse) unless the spouse/former spouse remarries before age 55, in which case the payments terminate. If the surviving spouse/former spouse remarries after age 55, the payments will continue. In the event the SBP coverage is for a child or children, SBP payments continue until the child reaches age 18. However, if the child is unmarried and a full-time student, the payments continue until the age of 22.
The Defense Finance and Accounting Services (DFAS) automatically deducts the monthly premiums for SBP coverage from the servicemember's retirement pay. The payments are deducted “off the top,” before taxes, meaning the premiums are paid out of the servicemember's pre-tax income.
SBP payments to beneficiaries regularly increase in accordance with cost-of-living adjustments.
If the servicemember is required to provide SBP coverage for a former spouse after the divorce, DFAS must be notified of the election within one year of the entry of the divorce decree. To do this, you must submit DD Form 2656-10 along with a copy of the final decree and the settlement agreement, if applicable.
Generally, once SPB is elected, it cannot be changed or withdrawn. There is a limited exception where SBP coverage may be changed or withdrawn, but the covered spouse/former spouse must consent to it.
Whether you are the servicemember or the servicemember spouse, at Raheen Family Law we have the knowledge and the experience to assist you in your case. Contact us today to schedule a consultation.