Dividing a Military Pension in Maryland Divorce

military pension divisionWhen you begin divorce proceedings in Maryland, you eventually must divide your assets with your spouse. For servicemen and women, dividing their military pensions is a complex process that is governed by federal law, military rules and state laws. Other factors to be considered include how long the couple was married, and for how many of those years the military spouse served in the military.

In addition to Maryland’s divorce laws, the Uniformed Services Former Spouses’ Protection Act (USFSPA) governs how the military spouse’s retirement benefits will be calculated and divided as a part of the divorce settlement.

What is the role of the USFSPA in military pension division?

Federal law does not provide an automatic right for the divorced spouse of a military member to receive any portion of the service member’s retirement pay regardless of how long the couple was married. The Uniformed Services Former Spouses’ Protection Act (USFSPA) was passed by Congress in 1982, authorizing states to divide military retired pay under certain conditions. Property division laws in the state where the divorce takes place will govern the amount of the award. The requirements of USFSPA also extends to alimony and child support.

While the state court will divide the military pension, it must abide by the USFSPA guidelines. Court orders that are enforceable under the USFSPA include:

  • Final divorce decrees
  • Annulment
  • Legal separation
  • Court-ordered property settlement agreements

Military retirement pay will be divided as a marital asset in an equitable division state and the award must be expressed as either a fixed dollar amount or a percentage of disposable retired pay (gross retired pay less allowable deductions).

How is military retirement pay divided?

A common method for calculating how a military pension will be divided is by using a “coverture fraction” which calculates the years of military service that coincided with the marriage divided by the total years of military service at the time of retirement in order to arrive at the “military portion” of the total asset. The nonmilitary spouse theoretically has a right to up to half of the marital portion.

For example, if the couple was married for a period of 18 years overlapping with the spouse’s military service and the military spouse had 20 years of service the equation will look like this: 18/20 = .90 or 90%, which represents the marital portion, half of which is 45%.

What is the 10/10 rule?

In order to receive their portion of a military retirement settlement directly from DFAS (Defense Finance and Accounting Service), which is the military’s payroll agency, the spouse must meet the military’s “10-10 rule,” which means that the marriage must have lasted for ten years that coincide with at least ten years of military service. If the 10-10 rule is not satisfied, then DFAS will not be involved in disbursing the nonmilitary spouse’s military retirement asset.

For spouses that meet the 10-10 rule, the court order is directed to DFAS as a “Military Retired Pay Division Order,” and it must be submitted in compliance with DFAS’s strict formatting requirements.

We have only touched on one aspect of the complicated topic of how a military pension might get divided in a Maryland divorce.  If you are a military service member who is contemplating divorce, or if you are married to a member of the military, you should consult with an experienced divorce attorney who is fully versed in the complexities of Maryland military divorce.

You are welcome to contact Cynthia H. Clark & Associates, LLC to schedule a consultation to discuss your divorce. We understand the complicated nature of military divorce. We will represent your interests and get you the settlement you deserve.

For Active Duty Military, Child Custody Can Be a Nightmare

military family law child custodyDivorce is never easy, but for the members of our armed services it can be particularly complex.  Military family law cases are handled in civilian courts, but present complicating factors including deployments, military pensions, and child custody. Active service members face unique challenges with child custody cases.

The service requirements of active duty members of the military often involve long deployments that result in long absences from the family unit. Civilian judges can be unsympathetic to duty requirements, instead seeing these absences as a lack of involvement in the lives of any children involved.

Additionally, laws vary from state to state. If the family has been transferred frequently, establishing a “home state” can be difficult, and courts may defer to another state.

To complicate matters further, each branch of service has different guidelines for how support can be allocated. If the ruling of the civilian court is not handled properly, payments will not be made. The civilian court’s ruling technically trumps military policy, which can result in additional paperwork, and therefore additional time on the process, as well.

The Uniform Law Commission

The Uniform Law Commission is a nonprofit association that:

“drafts uniform laws for the states to consider and enact. A uniform act is one that seeks to establish the same law on a subject among the various jurisdictions. When the term ‘uniform’ is used in the nation’s laws, it is highly likely that the ULC drafted the act.

“The ULC also promulgates ‘model’ acts. An act may be designated as ‘model’ if the act’s principal purposes can be substantially achieved even if the act is not adopted in its entirety by every state.”

The ULC has been promoting a model act since 2012 called the Deployed Parents Custody and Visitation Act. Under this act, past deployment and any possible deployments in the future cannot be used against a parent during a custody proceeding. To minimize the impact on children, imminent deployments may be considered.

So far, seven states have enacted the majority of the Deployed Parents Custody and Visitation Act. This year, legislation has been introduced in Minnesota, Arkansas, and South Carolina. We hope that our state, with such a large number of active service members, will ultimately see the light and enact legislation that will alleviate the burden of child custody hearings on our armed forces.

Divorce can be difficult; choosing the right attorney should not be. Cynthia H. Clark & Associates, LLC has successfully represented military couples throughout Maryland. Please contact the firm to reserve a consultation.