What Is The 10/10 Rule
When dividing a military pension in a divorce, many people wrongfully believe that a non-military spouse can only receive retired pay if they were married to you for 10 years, with at least 10 years of service during that time. The 10/10 rule does not determine how much a former spouse may receive. Instead, it determines the source of that payment.
Specifically, if you were married for at least 10 years, and 10 years of that marriage were spent in creditable military service, then your ex will be paid directly through Defense Finance and Accounting Service . DFAS will start to make these payments after receiving a court order. Otherwise, you will pay your ex directly.
Child Custody And Visitation
Parents in the military know all too well the unfortunate reality of being away from their kids for significant periods of time. Frequent deployments, irregular schedules, and relocations can all impact child custody/conservatorship and visitation arrangements.
To deal with these unique challenges, its important for you and your spouse to develop custody plans that have built in provisions to deal with reassignments and deployment.
When parents are willing to cooperate, most divorce courts are open to creative custody and visitation schedules.
At Bourlon Law firm, we have extensive experience helping divorcing couples build family care plans to reach consensus. If for some reason the custody negotiations become acrimonious, we will vigorously advocate on your behalf in court.
What Are The Different Methods For Determining The Actuarial Valuation Of A Defined Benefit Pension Plan
In states governed by equitable distribution laws in a divorce, there are three commonly recognized methods for determining the actuarial present value of a defined benefit plan.
The Life Expectancy Method uses life expectancy tables to measure the employees projected lifespan, and the rate on A-Rated General Obligation Municipal Bonds as a discount rate.
The PBGC Actuarial and Mortality Tables Method uses the Group Annuity Mortality 83 Tables to measure the employees projected lifespan, and the interest rates published and used by the Pension Benefit Guaranty Corporation as discount rates.
The GATT Method uses the GAM 83 Mortality Tables to measure the employees projected lifespan, and the 30-Year Treasury Bond rate as a discount rate.
The IRC 417 Method uses the RP-2014 Mortality Tables to measure the employees projected lifespan, and Segment Rates as set forth in IRC 417
The differences in these methods stem from the tables used to measure the projected lifespan and the interest rates used to discount to present value.
All are accepted by courts of law but one method may be preferred over the others depending on your jurisdiction.
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Dividing Military Retired Pay
In most divorces, the marital home or family business is the most valuable asset in the marital estate. The most valuable asset in a Florida military divorce is usually a servicemembers right to military retired pay. Servicemembers and former spouses need to make sure that their attorney has the skills and knowledge to get it right. No one would want to go into surgery with a doctor who lacked experience or special training in performing the procedure. When it comes to dividing a military pension, mistakes can range from granting the parties an incorrect share of the retirement to causing the former spouse to lose the right altogether. You cannot afford to become another statistic on inexperienced family law attorneys getting it wrong on the military retirement.
The Uniformed Services Former Spouse Protection Act governs the division of a servicemembers military retired pay. The USFSPA does not itself grant any rights to a former spouse regarding the service members retired pay. The law instead permits state courts to treat disposable military retired pay as marital property and divide it in a divorce action. Disposable retired pay is defined as gross retired pay less authorized deductions.
Former Spouses Entitlement To Benefits
The USFSPA permits each state to apply its own standard family law principles to military pensions during divorce proceedings. Unlike some states, Virginia divorce laws allow its courts to divide military pensions between the two spouses. Virginia courts treat military pensions the same as civilian pension plans. Both are considered a marital asset and divided accordingly.
Virginia is an equitable distribution state, but that doesnt mean your former spouse automatically receives half your pension. Most courts will calculate a marital split based on a formula, which almost never equates to 50% of your retirement.
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How Do You Divide A Pension
Dividing a pension can be done by one of two methods one based on if your spouse is still employed by the employer sponsoring the pension benefit at the time of divorce and the other based on if your spouse has already retired and is receiving the pension benefit at the time of the divorce.
If your spouse is still employed at the time of divorce the court will determine the community portion of the pension benefit by applying a formula that divides the number of months married during employment by the number of months worked for the employer sponsoring the pension benefit at the time of divorce. This result is then multiplied by the value of the monthly pension benefit the employee spouse would receive as of the date of divorce, regardless of whether spouse is actually eligible to retire on that date.
If the spouse is already retired, the court will calculate the community portion of the pension benefit by dividing the number of months married during employment by the total number of months of employment.
What Is An Actuarial Pension Valuation
To be able to complete an immediate offset, you must know the current value of the pension that is involved as a marital asset.
The actuarial valuation determines what the current value is of a defined benefit pension for this purpose.
Keep in mind that the actuarial valuation is a pre-tax valuation. So be sure youre comparing apples to apples.
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What Is A Military Spouse Entitled To After Divorce
After divorce, the former spouse is entitled to the Continued Health Care Benefit Program , which is the Tricare version of COBRA for three years. And as long as the spouse remains unmarried and was also awarded a share of the military retirement or SBP, the former spouse may remain on CHCBP for life.
Division Of Property And Benefits
For both civilian and military divorces alike, property will be divided according to the community property model followed in Texas. Under this model, all assets and property acquired by either spouse during the entirety of the marriage is considered owned by the community created by the marriage, meaning that the spouses jointly own everything that is not considered separate property. Texas Family Code § 3.002. The only exception to the community property rule is if an asset or item is considered separate property, which means anything acquired by a spouse prior to the marriage, or acquired during the marriage by gift, inheritance or personal injury settlement or award. Texas Family Code § 3.001.
There is a special exception to the community property model for military divorces that involves the division of military retirement pay and military medical benefits.
The Uniformed Services Former Spouses Protection Act specifically protects a former military spouses rights after divorce to the service members retirement pay and provides the rules for eligibility. 10 U.S.C. § 1408. The USFSPA provides the 10/10 Rule, which outlines that a couple must be married for at least 10 years during which the service member performed at least 10 years of military service creditable towards the retirement eligibility in order for the non-service member spouse to be eligible to receive a portion of the military retirement pay in a divorce settlement.
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How Can I Make Sure The Plan Administrator Will Send Me My Share Of Retirement
In most cases, youll need a court order called Qualified Domestic Relations Order, or QDRO. A QDRO is an order signed by the judge, separate from your divorce decree, that directs your former spouses employer to divide the retirement benefits according to the decree. If you didnt get a QDRO when your decree was signed, Texas law allows you to go back to the court later to get your QDRO signed.
For more about QDROs, talk to a lawyer. Use TexasLawHelp’s Legal Help Finder tool to locate a lawyer.
Texas Divorce Pension Division
Your retirement assets will be an important factor in determining your quality of life as you get older. Because of this, you want only the best divorce lawyer representing you.
Austin divorce attorney Ben Carrasco is skilled at helping clients get their fair share of retirement assets. Give Ben a call today at 320-9126 or contact him online to schedule a consultation.
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Determining The Marital Share
The marital share amount of your military pension is determined by adding up the number of months you were married and serving in the military, then dividing this number by the total time you served in the military before separation. Then multiply that by .5, and youll have her marital share. If youre already retired when you get divorced, determining the marital share of your pension is fairly simple. However, if youre still on active duty, its impossible to determine the actual marital share, because the date of retirement establishes the dividing number in the equation.
Military Divorce: Rules For Dividing The Pension
A service member’s military retired pay can be a valuable asset in a divorce, legal separation or dissolution of marriage.
In 1982 Congress passed the Uniformed Services Former Spouse Protection Act, which allows state courts to treat disposable retired pay either as property solely of the member, or as property of the member and his spouse in accordance with the laws of the state court.
Contrary to popular belief, there is no “magic formula” contained in the act to determine the appropriate division of retired pay. A state court can divide retired pay in any way it chooses . All 50 states treat military pension as marital or community property.
One of the popular misconceptions about military retired pay is that it is only divisible if the marriage lasted at least 10 years. A state court can award a share of the military retired pay to a former spouse of military member even though the marriage lasted less than a year.
However, in order for the Department of Defense to make direct payments of a military member’s retired pay to the former spouse, the former spouse must have been married to the military member for a period of at least 10 years, with at least 10 years of the marriage overlapping a period of military service creditable to retired pay.
One very important provision of the USFSPA is that in order for a state court to be allowed to divide member’s retired pay, the court must have jurisdiction over the member by:
— His/her consent to the jurisdiction of the court.
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How Divorce Affects Dividing A Military Pension
When couples divorce, there are many aspects that must be handled by divorce attorneys to finalize this action and terminate the marriage. Some of the items might include common things, such as the division of marital property, child custody, and child support. When one of the partners in a marriage is or was in the military, divorce lawyers know that there is a need to discuss military pensions. Divorce can affect a military pension, so it is important for active-duty and retired service members to work with divorce law firms who are experienced in the division of military pensions to ensure this is properly handled for both parties involved in the divorce.
How Does California Divorce Law Treat Military Retirement
California is a community property state, which means that any asset acquired or earned during marriage is presumptively divided equally at the time of a divorce. Examples of assets include real property, bank accounts, vehicles, and retirement accounts, including military pensions. As such, military retirements are considered assets subject to division in a divorce. Unlike other states, there is no required length of marriage for a members spouse to be entitled to a portion of the members military benefits.
The military retirement system is a government-funded, defined benefit plan. Members contribute through their service, as opposed to through monetary contributions. They must complete at least 20 years of active duty service before they are eligible for retirement benefits. This is also referred to as being vested. Upon retirement, the member receives monthly compensation and is eligible for disability benefits and participating in a survivor annuity program. There are additional nonmonetary benefits, including ongoing exchange and commissary privileges and medical care. The overall amount of retirement pay depends on the amount of time served, basic pay at retirement, and annual cost of living adjustments . In general, military retirements have the potential to be an extremely valuable asset with lifetime benefits.
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Calculating Marital Share For Active Military
There are different methods of calculating what percentage of the pension to which ex-spouses are entitled. The document filed with the court will need to clearly state the formula used to derive the amount of payment. Again, the length of the marriage will come into play. One of the more common trends is to count the number of points accumulated in the marriage rather than months. This is especially true for spouses serving in the Reserves.
The three methods used to determine the amount of payment are:
Heres The Deal As A Military Divorce Lawyer I Wrote This Webpage For A Couple Of Reasons:
- The information on the web about military retirement divisions is too vague to be very helpful. The militarys DFAS website is a web of confusion
- It is very difficult to know if you are getting a family lawyer that actually understands how to divide military pensions this page should help you ask the right questions to get the right divorce attorney.
- You may be trying to get divorced without a lawyer, so you need to know what is involved with dividing your military retirement
- OR, perhaps your lawyer is charging you a lot to divide your pension, and you want to know why.
- OR, maybe you are a lawyer and you need to know how in the world to handle your military divorce case.
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What Is A Military Pension
A military pension is a retirement fund that military members receive after a minimum of 20 years of military service. It is different from most other types of pensions in that no borrowing is permitted, it cannot be “cashed out” early, and you don’t have to reach a certain age to receive it. Members who quality for military retirement start receiving it immediately after their retirement.
Common Question : When Will My Spouse Actually Get A Part Of My Military Pension
Your spouse does not receive a portion of the pension UNTIL you retire from the military. But, when you get divorced, the court will sign a document , which will order that a portion of your retirement is legally assigned to your spouse, individually. If you have been married at least 10 years and in the service for 10 years, your spouse can receive payments from the Military directly.
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I Am A Military Member On Active Duty And Have Been Served With Divorce Papers I Have No Time To Attend To The Matter Because Of My Military Duties What Can I Do
The Servicemembers Civil Relief Act may provide some protection. The servicemember should first request a stay of the proceedings, and he or she may make additional stay requests later on. An application for an additional stay may be made at the time of the original request or later. If the court refuses to grant an additional stay, then the court must appoint counsel to represent the servicemember in the action or proceeding. The servicemember should confer with appointed counsel to discuss additional options.
If You Were In The Military For 10 Years And Only Married For The Last 5 Years Your Spouse Would Not Have Any Right To The First 5 Years Of Military Pension Credit
IF the service member is still active duty at the time of divorce, the following formula is used on your divorce documents
IT IS THEREFORE ORDERED that Former Spouse have judgment against and recover from Servicemember, on Servicemembers retirement from the United States Air Force, the amount of disposable retired pay calculated as follows: 50 percent the percentage of the community interest awarded to the spouse) multiplied by 56 percent multiplied by 50 percent multiplied by 8038 divided by Servicemembers monthly gross retired pay at retirement multiplied by Servicemembers monthly disposable retired pay at retirement.
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The Usfspa And Why Dividing Retirement Plans Is Different For Military Members And Spouses
While military divorces follow the state property division laws, federal regulations also apply during property and asset division. The Uniformed Services Former Spouse Protection Act was enacted by Congress to address dividing retirement benefits in military divorces and authorize direct payment of military pay to the former spouse.
The USFSPA allows Texas to treat military disposable retired pay as marital property, meaning that it can be divided during divorce. Disposable military retired pay is a servicemembers monthly retired pay minus any qualified deductions.
Not all former military spouses are entitled to receive this pay. There are eligibility requirements former military spouses must meet in order to receive military retired pay. Federal laws will not divide and distribute any military members retirement to the spouse unless they have been married for 10 years or longer while the member performed 10 years of creditable military service. Court-ordered payments for child support or spousal support do not require a specific length of marriage to receive payment awards.
The USFSPA also permits former spouses to be designated as a Survivor Benefit Plan beneficiary to receive a Survivor Benefit Plan annuity in the event of a retirees death. Regulations impose that a former spouse must elect former spouse coverage with the appropriate military finance center within one year of the divorce being finalized to receive any possible benefits.