Getting divorced from your spouse is never easy. Even in the most amicable of divorces, some areas of contention usually arise as the once happy couple attempts to separate their lives. However, when you throw military personnel into the mix, the complications can multiply. And one of the biggest questions that military personnel and their spouses ask during a divorce surrounds the division of military retirement benefits and pay. In this article, we will try to address the basics of how military retirement is divided in a divorce so that you will feel a bit more acquainted with the rules and less shocked when the time comes to crunch the numbers.
The USFSPA and Equitable Distribution
The Uniformed Services Former Spouse Protection Act (USFSPA) makes the task of dividing up military retirement a bit easier. Essentially, this is a federal act that gives the states the option of treating military retirement pay as marital property, as opposed to income. This is important because, in Tennessee, marital property is the only property that can be split in a divorce. So USFSPA makes it possible for a Tennessee judge to equitably distribute military pension amongst the spouses.
However, there is a mistaken assumption made by many that this means that exes will automatically get 50% of their ex-spouse’s retirement pay from the military. This is not true. Nothing in the USFSPA makes it mandatory for 1.) the non-military spouse to get part of the pension, (it makes it possible, not mandatory) or 2.) the split (if any) to be 50/50. Instead, the states are given the option of treating retirement pay as marital property, and then dividing it according equitable distribution rules and as the judge sees fit.
USFSPA and the 10/10 Rule
Many people mistake the meaning and intent behind this rule. This 10/10 rule does not dictate who may receive equitable distribution of assets or how much they should receive. Instead, it focuses on the procedure by which the payee spouse gets their money after the divorce is final.
According to the 10/10 rule, the couple must have been married for at least 10 years to qualify, and the service member must have been in active duty for at least 10 years. They do not have to be the exact same 10 year period, and some years can certainly overlap. But it is the fact that you’ve been married for over a decade – to a person who has served for over a decade – that gets you the benefit of the 10/10 rule. And what is that benefit?
It all has to do with how you get paid. Do you receive your money directly from the disbursement center? Or do you have to hope that your ex remembers to send the check each month?
Let’s use two examples to examine and illustrate this point:
Example One
Let’s say that John joined the military while he was single. Then he met Joanie and they got married 6 years later. Then, say they are married for 12 years, and during this time John stayed in the military.
So we’ve fulfilled the conditions of the 10/10 rule. John has been in the service for over 10 years, and John and Joanie have been married for over 10 years. This now means, if the judge orders any type of equitable distribution payment from John to Joanie, that Joanie will receive this money directly from the government – not from John. This is a welcome relief for some who fear that their ex will simply not write the check each month as ordered by the court. The rule essentially cuts out the middleman, and sends the ordered distributions directly to the payee spouse.
Example Two
Now let’s look at Tabitha and Danny. Tabitha enlisted 2 years before marrying Danny, and they stayed married for 9 years, during which time they got a divorce. In this case, we have Tabitha who has now served in the military for 11 years, so the first condition of the 10/10 rule is met. Then we have a 9 year marriage, which obviously does not meet the second condition of the rule.
Now, the judge may still award Danny a portion of the pension money that was earned during the marriage – but it will not go directly to Danny. Instead, each month the money will be sent directly to Tabitha, who must then write Danny a check and drop it in the mail. Danny is left hoping that she fulfills her obligation to send the money each month. This can lead to nagging phone calls wondering where the payment is, and all sorts of unpleasantness between the parties later down the road. It shouldn’t end up this way – but it could.
So it is safe to say that the 10/10 rule has nothing to do with what or how much gets distributed, but focuses on how the money gets paid.
A Deeper Look into Military Pension and How Equitable Distribution Works
First, it may be helpful to define “marital property” as opposed to non-marital property and see how this is reflected in the division of a military pension. Marital property is property that was either:
- Obtained during the marriage, or
- Increased in value during the marriage.
So how does this relate to military pensions? Suppose that Bob enlisted in the military 5 years before meeting and marrying Sally. Then say that they are married for 14 years and then get divorced.
In Tennessee, a judge can choose to consider the part of Bob’s pension that was obtained during the marriage – and any increase in value that occurred during the marriage – as marital property. There are somewhat complex equations that are used to reach the exact amount of Bob’s pension that Sally is entitled to upon Bob’s retirement from the military.
Judicial Discretion
It is good to keep in mind that even within the boundaries of these rules, judges are given a great deal of discretion in family law matters. The judge is there as a neutral third party, so to speak, and they may decide that a number of other routes may be preferred under certain circumstances. They must take all of the factors in a given case into consideration when making these determinations.
So while a judge can consider a portion of Bob’s pension as marital property, he also may choose not to. The judge, the spouse, or even their attorneys can come up with a better plan, depending on the circumstances.
For instance, say that there is a $300,000 house that the couple shared. Sally may choose to ask for the house free and clear and forfeit the pension benefits. This option may be suggested by anyone: the attorneys, Bob, Sally, or the judge. And if the judge sees this as a better solution in this particular case, then Sally will now own a house and Bob may get to keep all of his retirement pay. There are a million different possible scenarios, and judicial discretion is at the heart of all of them.
Questions about Military Divorce in Tennessee?
If you are going through a military divorce in Tennessee, we here at Batson Nolan PLC know you have many questions circulating through your head. To speak with an experienced attorney at our offices in Clarksville or Springfield in confidence, please call us or inquire online today.