Did you know:
- According to DOD statistics, the sum of military retired pay payments for an O-5 (e.g. Army Lieutenant Colonel or Navy Commander) who retired in calendar year 2019 with 20 years active duty service will total more than $3.525 million during the servicemember’s actuarial lifetime (assuming 2.0% annual COLAs).
- The same calculation for an E-7 (e.g. Air Force Master Sergeant or Marine Corps Gunnery Sergeant) who retired in calendar year 2019 with 20 years active duty service will total more than $1.794 million.
- The amount of money at stake for a former spouse is even greater when considering the impact of the Survivor Benefit Plan (SBP) which, if available, provides a former spouse with income protection after the servicemember’s death.
- The formula Texas courts use to divide military retired pay in divorce differs depending on whether the servicemember is: (1) still serving on active duty; (2) already retired from active duty; (3) still serving in the Reserves or Guard; or, (4) already retired from the Reserves or Guard.
In divorce, a State court order CAN:
- Divide military retired pay in the divorce decree—but only to the extent the marriage overlapped military service.
- Order SBP “former spouse coverage,” if available, to provide income protection after the servicemember’s death.
- Divide the servicemember’s Thrift Savings Plan—but only to the extent of the marital share.
- Order a freeze on the servicemember’s Thrift Savings Plan, if warranted, to ensure the servicemember doesn’t make withdrawals or take out loans prior to the divorce being finalized.
- Divide any voluntary separation pay the servicemember may receive if—months or years after divorce—the servicemember opts to take a financial incentive to separate instead of serving through retirement.
- Consider the effect of any “VA offset” when dividing the sum total of all marital property (note: while a court cannot award a share of VA disability compensation, it has discretion to award a greater share of other marital assets to mitigate the effect).
In divorce, a State court order CANNOT:
- Divide the servicemember’s military retirement pay unless the court obtains jurisdiction by one of the methods prescribed in Federal law.
- Order the Defense Finance and Accounting Service (DFAS) to make direct payments to a former spouse of his or her share of military retired pay if the marriage overlapped less than 10 years of military service.
- Prohibit a servicemember from waiving a portion of military retired pay in order to receive an equal portion of VA disability compensation (i.e. the “VA offset”)—despite the fact that VA disability compensation cannot be divided in divorce.
- Order the military to provide a former spouse with access to military health care (i.e. TRICARE) or commissary and exchange privileges (note: a former spouse either does or does not qualify for these benefits according to criteria prescribed in Federal law).
For a more in-depth discussion of these and other subjects, please refer back to the 16 key issues in the table of contents by clicking on Military Divorce.