By Angela Foy
Attorney, Cordell & Cordell
Clients of mine who are either active or retired military usually want to know if their ex-wife is entitled to half of their retirement benefits.
This is of great interest because in most divorces involving military service members, military retired pay is the largest asset subject to division.
So is it mandatory that she receives a portion of your retirement benefits?
In some states, including the state I practice in, the statutory presumption is that all marital property shall be divided equally between the two parties. The court can then adjust this division after considering a number of factors, including the length of the marriage, the age and physical and emotional health of the parties, or other factors the court determines to be relevant.
Marital property in Wisconsin is all assets and debts accumulated during the marriage or brought into the marriage by either party. The only excluded property is property that was inherited or gifted to only one of the parties.
The property does not even have to be in existence yet to be considered; property that is contingent or not vested is still marital property subject to division.
In most divorces involving military service members, military retired pay is the largest asset subject to division. The other spouse can waive any claim if her interest is offset with another asset.
Whether it should be divided, and if it should then how it should be divided, are all contingent on many factors, including your time of service and whether all of that time or part of that time was while you were married.
Another significant factor is whether support is needed for your spouse, in the form of maintenance, and her current and future earning capacity.
In addition to military retirement pay, you will also want to inquire about your Survivor Benefit Plan and your pension, if you have one through the Federal Employees Retirement System.
The Uniformed Services Former Spouses Protection Act (USFSPA, hereinafter “the Act”) was passed by Congress in 1982 to provide a State court with the authority to divide retired pay as marital property between spouses. The Act does not restrict the amount or percentage that the court may award to the former spouse.
However, the Defense Finance and Accounting Service (DFAS) will not directly pay the former spouse more than 50% of disposable retired pay. The military member would be responsible for paying anything over 50% if that is ordered.
As a military member, it is almost always to your advantage to specify the dollar amount. By using a dollar amount, the former spouse is not afforded a cost of living adjustment, so you would receive that portion added to your remaining portion of retired pay.
You should seek the help of an attorney to assist you in determining what exposure you may face for maintenance or family support and a financial advisor familiar with military retirement issues. Cordell & Cordell has attorneys that are licensed and located nationwide, and we would be happy to discuss your case with you.
Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.