For many military spouses, the largest asset in the marital estate is the retirement pay of a service member. When the marriage of a service member falls apart, one of the major concerns of a non-military spouse in a military divorce will likely concern the division of this retirement pay.
Retirement Pay Reduced by Disability Pay
A military divorce can become more complicated when the service member subsequently chooses to receive Veterans Affairs (VA) disability benefits after entering into a settlement agreement. Under the current provisions of the United States Former Spouses Protection Act (USFSPA), state courts are allowed to treat disposable retired pay as either the service member’s property or as the marital assets of the spouses. Disposable retired pay is defined as the service member’s retired pay less any portion that the service member has waived in favor of disability benefits.
In one case, the military husband entered into an agreement dividing the marital assets including his retirement pay. Years after, the husband chose to receive disability benefits and waived the corresponding amount of retirement pay. The divorced couple found themselves in court over conflicting interpretations of the USFSPA provision. The service member claimed that his ex-wife’s share in the retirement pay must also be reduced.
Courts Can Compensate Spouse for Reduced Retirement Pay
The state courts having jurisdiction of the parties ruled in favor of the ex-wife saying that federal law allows state courts to compensate the non-military spouse for the reduction in the amounts due her as a result of his waiver of retirement pay. When asked to comment on the pending case before the Supreme Court, the Federal Government filed its brief recommending the same position of the state courts and further asked the US High Court to issue a uniform ruling for the guidance of state courts in resolving this frequently recurring issue.
Importance of Military Divorce Attorney
A divorce can be an emotionally challenging time, made more stressful by decisions that can have a significant impact on your future. If you are contemplating a military divorce or are facing one, it’s important to discuss all angles of your situation with an experienced military divorce attorney. Your lawyer can examine the details of your case, sort the legal issues, and recommend options that are available in your situation.
In Oklahoma, the Rick Dane Moore & Associates Law Firm has over 30 years of proven experience in military divorce and other related family law matters. Our firm’s personal approach starts from the moment you call us for advice. Call us today at (405) 366-0373 for a free 15-minute phone consultation and tell us about your situation.