Military man and partner are distressed.


Military divorce presents its own set of unique challenges for service members.  One of those challenges is when a service member begins receiving or will receive military disability.  Military disability when earned during the marriage is presumptively community property.  However, because it will be considered separate property upon divorce, it may have an effect on the ex-spouse's marital interest in military retirement.  Here are three important concepts on military retirement:

1. Is military retirement accumulated during the marriage community property? 

Yes, it is. The disposable income is what becomes divisible at the time of divorce. Any overlap period of military service and marriage becomes divisible at the time of divorce. A common misconception is that retired pay is only divisible as community property if the marriage lasted more than 10 years. This is incorrect, no matter how long the marriage lasted, both spouses are entitled to the retirement pay. 


2.  My non-military spouse and I were not married for ten years - she is not entitled to my military retirement.  

See #1 above. Also, the 10 (ten) year rule applies only as far as the ex-spouse securing retirement plan payments through the Defense Finance and Accounting Service (DFAS).  If the marriage between the ex-spouse and service member was less than ten years, then the portion of the retirement plan the ex-spouse is entitled to is that amount only.  The service member must determine how the ex-spouse will be paid, either by check or bank transfer until the ex-spouse's community interest is secured.


3.  Is my ex-spouse entitled to my military disability payments?  

The short answer is no. It can also affect what an ex-spouse will receive from the "normal" military retirement if the service member receives disability.  For example, if a service member received $1,000.00 in military disability and his monthly military retirement is $1,000.00, the ex-spouse would be entitled to zero compensation. Usually, a well-crafted agreement can be reached where some amount of retirement funds are paid to the ex-spouse. 

If you are a current or former service member, or their spouse in Albuquerque or anywhere else in New Mexico looking to file for divorce, our experienced divorce attorneys can assist you during the process. An attorney like Anthony Spratley can be a huge asset to you during your divorce, due to his extensive knowledge and experience with family law and military divorce. While many law firms claim to be experienced with military divorce, few have actual veterans representing you. Having an attorney on your side who understands your situation and knows how to get you the best outcome can be a game-changer. Schedule an appointment to speak with an attorney by contacting us at (505)317- 4455 or chat with someone online today!

Anthony Spratley
Connect with me
Experienced Divorce, Child Custody, and Guardianship Lawyer Serving Albuquerque and Beyond
Post A Comment