Congress May Change Division of Military Retirement Pay in Divorce

Written by Jonathan Breeden

October 10, 2016

Oklahoma senator Steve Russell introduced into Congress an amendment to the Uniform Services Former Spouse Protection Act, pertaining to the division of military retirement pay in divorce cases. The revision would require payments from military retirement accounts to be awarded based on the military member’s rank and years in service at the time of the divorce, rather than the rank and years of service at the time of the member’s retirement. If it passes, the revised law could be enacted in 2017; spouses would not be able to apply it retroactively.

Currently, the Former Spouse Protection Act does not automatically entitle former spouses to military retirement benefits, but it does allow military retirement pay to be considered property and allows the states to divide it according to their respective property division laws. North Carolina, for example, may divide property, including military retirement pay according to the equitable distribution law.

Stopping payment of benefits at the divorce level, rather than the retirement level could potentially lessen the amount awarded to spouses at the time of the divorce, although Senator Russell says he is really more concerned about ensuring military retirees are covered and protected after their years of service. Some military families support the changes, provided the military benefits are distributed according to the most current pay scales, as per the example provided in this article: “[I]f the service member retires as a colonel with 30 years of service — 14 years after the divorce when he was a major with 20 years of service — the payments to the former spouse should be based on the current pay table for a major with 20 years.”

Opposition to the Amendment

Senator Russell claims that his proposal has been met with resounding positive reactions, but not everyone thinks the rewrite is the best idea. Military families tend to relocate often and make many sacrifices because of a spouse’s career. Critics are concerned that former spouses will be left with little or nothing, especially because federal law allows for their retirement accounts to be divided in divorce as well. The American Academy of Matrimonial Lawyers Board of Governors has voiced its opposition as well, saying that the current federal regulations are the most effective at “doing equity in the greatest number of cases to everyone affected.”

Since the division of military assets is left up to states, there is no federal model, so states use their own formulas and can make decisions on a case-by-case basis, if necessary. Some who oppose the amendment say it will take away the states’ abilities to use their own laws, leaving everyone to follow the less-than-ideal federal model. This change could potentially cause some issues since the division of assets in a divorce cannot always follow a “one size fits all” solution.

Contact a North Carolina Divorce Lawyer

A divorce involving a division of military retirement pay is a bit more complex than the typical case. If you are going through a divorce that involves splitting a military retirement account, you might benefit from contacting a North Carolina attorney who is experienced with these kinds of divorces. Attorney Jonathan Breeden of Breeden Law Offices has spent nearly two decades helping couples in the local divorce courts; he has the knowledge needed to successfully navigate a divorce including a division of military retirement pay. Find out what he can do for you by calling (919) 661-4970 today.


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