Military Divorce: Dividing Children, Pay and Pensions
“Figure out what is the most important thing to you. Is it the kids, the pension or the spousal support?”
That’s how Raleigh, North Carolina divorce lawyer Mark Sullivan says he begins initial meetings with service members or their spouses who come to him to discuss getting divorced.
“Those are the three things people always want to know about: How will property and a military pension be divided and will someone have to pay child or spousal support and how much.”
Money and children are the big issues in any divorce and the military lifestyle of frequent moves and long deployments make these issues even more pronounced in military divorces. Military couples often have young children and, because of the lifestyle, the non-military spouse often has been unemployed or underemployed, which might mean that the service member is responsible for spousal support after the divorce.
Stephanie W. is a 36-year-old Army wife living at Fort Bragg, North Carolina. She is in the early stages of divorcing her active-duty-soldier husband after she caught him cheating on her last year. They have two young children and Stephanie has not pursued a college degree or a career of her own because she has moved around and stayed home with the children in order to support her husband’s Army career.
“I want to make sure I know all of my rights and what I’m entitled to,” Stephanie said. “I didn’t go to school because he needed me to be a stay-at-home mom so he could deploy and attend military schools.”
In Stephanie’s situation child custody is not likely to be an issue. Her husband’s job in the Army requires that he deploy often so he is not likely to seek sole or primary custody of the children. In fact, she plans to ask for a larger than customary amount of child support because his frequent deployments will mean that he is not able to have the children for regular visitation either, placing a larger share of the childcare burden on her.
Mary Commander, a Norfolk, Virginia divorce lawyer who handles many military divorces, said that frequent deployments can also affect the ability of a service member to get full custody of the children. Judges, she said, will look at what is in the best interest of the children and may decide that the children are better off living with the parent who is not likely to deploy.
“It’s a factor,” Commander said. “Lately it has been coming up more and more, even with National Guard and Reservists now.”
Stephanie and her husband live in military housing and do not own any real estate, so they will not have to squabble over who gets the house. However, she will have to find off-post housing for herself and the kids, as they will no longer qualify for the housing unit they currently occupy.
She and her husband have already discussed child and spousal support and he has also agreed to give her extra money to help with car payments and daycare costs so that she can finish college and go to work.
“He recognizes that I have sacrificed a lot for him,” she said. “He’s going to be strapped for cash when we divorce because he’s doing this to us,” she said. “I’m not the one walking away from him.”
In the meantime, while Stephanie and her husband wait for their divorce to be final, they will probably file a motion asking for a court order that says how they will pay their bills during the separation period. These orders typically are designed to be temporary and cover issues such as how they will pay for rent, cars, utilities and food for both spouses during the legal separation, Commander said.
Dividing the Pension
Stephanie said her husband plans to retire from the Army and they have discussed how they will divide his pension and retirement money. He has told her that he will give her the contents of his Roth IRA and Thrift Savings Plan if she agrees to not go after a portion of his military retirement pension.
"It’s not a ton of money but it does give me some kind of cushion,” she said. “At least he recognizes that I haven’t been able to pay into a retirement account of my own because I haven’t been working because I was supporting his career.”
Service members who retire after at least 20 years of active service are compensated with a retirement pension for the rest of their lives. Since 1982, when the Uniformed Services Former Spouses Protection Act (USFSPA) was passed, military pensions have been treated as marital property that can be divided in a divorce. While many people are aware that spouses are entitled to half of the pension if they were married to the service member for 10 years, few realize that the division of the pension is actually negotiable.
“Usually the spouse gets half of the marital portion [of the pension] if the dates of marriage and service overlap,” Commander said, explaining that an overlap occurs when the spouse was married to the service member for at least half of the years that he was serving. However, the spouse can ask for half of the pension even if they were married for less time and the service member can ask for a smaller division of the pension even if they were married for longer than 10 years.
The USFSPA allows state courts to grant up to half of a service member’s retirement pension to his ex-wife during divorce proceedings but that is simply the most that the finance center will take out of the retiree’s pay. The court may decide to award more and, if it does, it becomes the responsibility of the retiree to pay that money directly to his ex. Also, if the marriage did not last at least 10 years the finance center will not make direct payment to the retiree’s ex. If the court awards a share of the pension to an ex who was not married to the retiree for at least 10 years, then the retiree will have to make those payments himself.
“Spouses can try to get a share of the pension even if they were only married for one day,” Commander said.
Commander said that spouses who were married long enough for there to be a service overlap will usually only agree to a smaller percentage of the pension in exchange for something else of value.
“In the past a lot of women have exchanged retirement benefits for houses – but not my clients,” Commander said. “I have always thought that was stupid, especially with the housing market like it is now.”
Sullivan said that he once worked on a divorce case in which a mid-career Army Major’s pension was valued at $500,000. He said that both the service member and the spouse should be aware of the actual value of the pension.
Commander said that she has had active duty clients who got out of the military after 19 years, one year shy of the 20 years required to draw a pension, so their ex would not be able to draw retirement benefits. She said other clients have intentionally lost rank or gotten in trouble in order to reduce the amount the ex would be able to collect in benefits.
“If you’re going to be that dumb and hateful, you can’t be stopped,” Commander said.
Marsha Thole is a Lieutenant Colonel in the Air Force Reserves and she co-authored a book called Divorce and the Military II (available for purchase here). http://www.americanretirees.org She said she often advises spouses who are divorcing service members to ask for a specific deadline for applying for retirement benefits to be written into the divorce decree.
“The spouse can’t get retiree pay until the retiree applies for it,” Thole said, “so the spouse should include time frames in the divorce decree stipulating when the retiree will apply for benefits.”
Thole said she has heard of instances where a military retiree was eligible to draw retirement benefits but refused to apply for them because he didn’t want his ex wife to begin collecting benefits, as well.
“Some adults are two tacos short of a plate,” Thole said. “I’ve talked to guys who say, ‘I don’t want her to get a penny, no matter what!’”
Sullivan said that spouses of service members should also remember the Survivor’s Benefit Plan, or SBP, when discussing the divorce. A former spouse can get a share of the pension in the divorce but if she does not get a share of the SBP then she will no longer receive pension payments if the service member dies before she does. He said she can ask that the service member be required to pay into the SBP in order for her to continue receiving pension payments if he dies before she does.
“Too many attorneys have eyes only on the pension division,” Sullivan said, “but the SBP is not a pension. It’s a contract for an annuity that replaces the pension if he dies.”
Stephanie is also asking that her husband leave her and their children as the beneficiaries of his SGLI (Service Members Group Life Insurance) policy. She wants him to stipulate that, in the event that he is killed, $100,000 of the policy will go to Stephanie immediately and that the remaining money be divided evenly and deposited into trust accounts for their kids.
“I want it that way so that even if he gets remarried the SGLI would go to me and our kids,” Stephanie said. “I want to protect my family. If he dies I’m going to need the money for the kids because I won’t be getting child support anymore.”
There are many other issues that make military divorces different than civilian divorces. Nearly every military divorce will have unique circumstances for which there are a myriad of state laws and military policies and someone considering divorce is best advised to hire a good, knowledgeable, lawyer early in the process.
“The area of military family law is narrow, unique and oftentimes illogical,” said Sullivan. “The biggest mistakes I see people make are not getting their own lawyer or getting a lawyer who doesn’t understand military issues.”
There are many pamphlets with useful information on military legal issues available from the North Carolina State Bar Association. These can be downloaded for free here.