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 time of divorce.  
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 be 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.
 

Anthony Spratley
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Experienced Divorce, Child Custody, Domestic Violence and Estate Planning Lawyer Serving ABQ and Beyond
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