Dividing Military Pensions and Benefits
Most divorces are complicated by nature. Throw in the fact that one or more of the divorcing parties is a military service member, or has military benefits, and the divorce becomes really complicated.
Fortunately, the Uniform Service Former Spouses’ Protection Act (USFSPA)(i) addresses some military related issues such as service member’s military retirement pay, service member’s Survivor Benefit Plan (SBP), service member spouses’ access to commissary and exchange, and service member spouses’ access to healthcare benefits. It is important to note that the USFSPA does not automatically confer any of these benefits to a military service member’s spouse upon divorce. The USFSPA is guidelines that allow states to treat disposable military retired pay (more on this in a moment) benefits as marital property according to the state in which the divorce is filed.
A little note about jurisdiction: before starting any divorce action, you must know if the court in which you are planning to file for divorce has jurisdiction over your divorce case. If you are uncertain of your desired court’s jurisdiction over your divorce action, consult a good attorney first.
In the State of Utah military retirement benefits accrued in whole or in part during the marriage are divisible.(ii) This means that courts in Utah treat disposable military pensions just as they would any pension or retirement benefit from any other employer.
What is disposable vs. non-disposable military retired pay? For tax purposes, some military service members have the option of waiving a portion of their military retired pay in order to receive non-taxable Veteran’s Administration (“VA”) disability compensation. The gross amount of gross disposable retirement compensation that can be split in a divorce action is reduced.(iii) This can be a headache for courts when trying to divide military retirement pay. Before you try to exploit this potential option, consider that some courts will try to bring the divorcing parties to a financial position where they were before waiving military retirement pay. On the other hand, the courts may also look at a spouse’s waiving of military retirement pay as way of fraudulently attempting to avoid divorce decree obligations. In either case, it is very important to consult go good attorney before attempting to change the way you receive your military retirement pay and other benefits.
You can download a PDF version of the USFSPA manual by clicking this link or by going here: https://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA452505
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(i) 10 U.S.C. 1408: The Uniformed Services Former Spouses’ Protection Act (https://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA452505)
(ii) Utah Code § 30-3-5 and Green v. Green, 751 P.2d 827 (Utah Ct. App 1988)
(iii) See Mansell v. Mansell, 490 U.S. 581 (1989) (holding that former spouses cannot be awarded any portion of waived disability compensation)