Military disability and retirement benefits are the rewards for a career of putting your life on the line to defend the United States of America. If you were injured protecting this country, you deserve to receive military disability benefits. If you are going through divorce, are your benefits community property that can be divided? Can your ex-spouse take a huge chunk of your monthly benefit check? Understanding divorce and military benefits requires an experienced Washington divorce lawyer.
Military Retirement and Disability Benefits
The Uniformed Services Former Spouses Protection Act (USFSPA) permits, but does not require, states to treat a service member’s retirement benefits as property to be divided in accordance with state divorce laws. Depending on the state’s applicable laws, a former spouse may be entitled to a portion of a service member’s retirement benefits. This is true of Washington. As a general rule, Federal law prohibits states from awarding a former spouse over 50% of a service member’s disposable retirement benefits. Only the benefits earned while both in the service and while married will be considered Community Property and be available for division.
Divorce Issues with Disability and Retirement Benefits
Disability retired pay is not divisible or “disposable” under USFSPA. If a service member receives half of his retirement benefits in the form of disability pay and his former spouse is entitled to 50% of his disposable retirement pay, his former spouse will only receive 50% of the service member’s monthly retirement benefits, but not 50% of the disability pay. The amount of retirement funds available for division with a former spouse equals the service member’s full retirement benefits minus the portion designated as disability retirement benefits.
If a service member is disabled but able to continue service, or if a disability is discovered after the service member retires, the service member has the option of waiving a portion of his or her normal retirement benefits and having those benefits replaced with disability retirement benefits paid by the Department of Veteran’s Affairs. In this way the service member can reduce the amount of divisible retirement benefits while not reducing the total benefits received. The result is a smaller portion of benefits available to the former spouse.
In 2003, Congress passed legislation that will allow some service members to receive disability benefits without waiving any normal retirement benefits. The affected service members will keep their normal retirement benefits and have disability retirement benefits added to the total amount received. This legislation has been phased in until it is fully implemented in 2014. However, only those service members who have twenty or more years of qualifying service and a VA disability rating of 50% or greater will qualify. For those who qualify, obtaining VA-paid disability retirement benefits will not reduce their divisible retirement benefits (or how much is owed to a former spouse).
Disability retirement pay is counted as income for purposes of calculating child support and maintenance payments. Thus, even though a State court cannot order a service member to pay a portion of his or her disability retirement benefits to a former spouse, receiving a large disability retirement payment can increase the service member’s payment obligations via a higher child support and maintenance award.
Defense Finance and Accounting Service
Retirement and disability retirement benefits are paid to service members by the Defense Finance and Accounting Services (“DFAS”), which is the accounting firm for the Department of Defense. If a former spouse was married to a service member for ten or more years of the service member’s military service, the former spouse is entitled to receive his or her portion of the service member’s retirement benefits directly from DFAS. The former spouse must contact DFAS directly to initiate direct payment. If the former spouse was not married to the service member for ten years of military service, the former spouse must obtain his or her portion of the service member’s retirement directly from the service member.
A former spouse is not entitled to a service member’s retirement benefits until the service member actually retires, and federal law prohibits a court from forcing a service member to retire. A former spouse’s direct retirement payments from DFAS end with the death of the service member or the former spouse.
Keep Your Fair Share!
It may seem like you have to be a math whiz to properly calculate the affect of divorce on your military benefits. The information is lengthy and complex. While you may be tempted to dismiss it as to difficult to understand or bother with, it is really important to your future.
You deserve to keep the maximum amount of your benefits. You dedicated your life to military service to earn those benefits. Additionally, if you served as a military spouse/dependent, you need to maximize the benefits available to you. The attorneys of Divorce Lawyers For Military will aggressively fight for every penny you deserve. We will not allow your ex-spouse to take more than they are entitled to under the law.
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