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What you should know about the USFSPA and how it affects divorce

Military and civilian divorces share common ground that includes child support, child custody, alimony, property division and other aspects of marital dissolution. However, marriages ending where one spouse is serving in a branch of the military present unique and significant complexities.

The length of a marriage during a military career determines eligibility for various benefits. Although some states have special provisions, jurisdiction becomes a factor when frequent moves make meeting residency requirements difficult.

One of the more distinct differences in these marital dissolutions involves the Uniformed Services Former Spouses’ Protection Act.

The USFSPA applies to all military divorces after June 25, 1981. It governs how state courts divide retirement benefits as part of divorce agreements. Retired pay is computed based on the rank of the servicemember spouse at the time of retirement, not when a divorce is finalized.

Military personnel who delay ending their career to protect pensions should know that eligibility for retirement could be the determining factor, not the act of retirement itself.

To qualify for pension division, the military spouse must serve 20 years of creditable service. The marriage has to last at least ten years where the servicemember performed at least 10 years of creditable service.

In divorce proceedings, military pensions are not considered income. They are assets that are subject to 50 percent division. Because of that, alimony and child support amounts are determined separately. Nonmilitary spouses do not have to prove a “need” for the money, nor do these benefits stop once they remarry. Also, pensions can be preserved by trading other marital assets, such as a marital home.

A “do-it-yourself” approach may be unwise. The challenges that come with a military divorce necessitate the help of an attorney experienced in this complex area of family law.

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