Dividing military retired pay and benefits in a divorce

| Nov 17, 2020 | Divorce

The Uniformed Services Former Spouse Protection Act authorizes state family courts to divide a military service member’s retired pay in a divorce. The division is done according to state law. North Carolina, like all other states, considers military retired pay to be marital property, which can be divided.

The state’s ability to divide retired pay depends on the jurisdiction. In general, North Carolina courts have jurisdiction when:

  • The service member lives in North Carolina, as opposed to being assigned here by the military
  • Although the service member doesn’t live in North Carolina, he or she claims official domicile in North Carolina
  • The service member consents to North Carolina’s jurisdiction

If the only connection the service member has to North Carolina is their military assignment, talk to your lawyer about establishing jurisdiction by consent.

Once jurisdiction is established in North Carolina, the courts divide military benefits based on our equitable distribution laws.

You may have heard that retired pay will not be divided unless you have been married for at least ten years and the service member has served for at least ten overlapping years. That is not true. State law allows these benefits to be divided even in marriages that lasted less than one year. However, if you have been married at least 10 years and your marriage overlaps with 10 years of military service for your spouse, you may be entitled to receive pension payments directly from the military rather than having to depend on your ex-spouse to pay you.

Other military benefits and privileges

The length of your marriage and its overlap with military service does affect other benefits. For example, you may be entitled to medical benefits, commissary benefits, and military exchanges if you were married for at least 20 years and there was at least a 20-year overlap with qualifying military service by yourself or your spouse. If there is less than 20 but at least 15 years of overlap, you may be entitled to only one year’s transitional medical benefits, which could be suspended if you remarry or have employer-sponsored healthcare. You may be entitled to other benefits but military retirement and benefits pay is complicated and requires a skilled lawyer to help you understand your legal rights in this area.

If you are interested in how your current pay and benefits are divided, talk to an attorney who is experienced in military divorces.