Almost all divorces that include marital assets are complicated, but military divorces can be more complicated than most. There are federal laws that pertain to military divorces that aren’t applicable to divorcing civilians. Military families who are stationed in or who are residents of New York need to understand the ramifications of these laws and how they apply to their specific situation.
The Uniform Services Former Spouse’s Protection Act (USFSPA) grants state courts the right to treat military retirement pay as marital property that can be equitably divided based on several factors. Although it is a common misconception, the USFSPA does not mandate that military pay be given to a spouse. Ultimately, a judge will make the decision if and how much military retirement is given to a spouse. The final decision will depend on a lot of factors, including other assets and prevailing state laws.
While military pay is considered marital property for purposes of a divorce, not necessarily all of it is included. There is a formula for determining what percentage of military retirement is included in marital property. The fraction is based on the number of months a service member served before and after marriage as well as the total number of months served. For members who are retired, the formula can be applied and the percentage calculated. If a military service member is still on active duty, it isn’t possible to calculate the percentage until retirement.
Division of benefits is complicated in the best of cases and even more so for military families. A lawyer with experience in military divorce may be able to provide guidance in the division of assets, including military retirement pay as well as other issues that arise when military families divorce.
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