This is the next post in our series discussing special issues which often must be addressed during a military divorce taking place in Virginia. Our last post provided an overview of topics that we will be covering over our next several articles. In this post we will be discussing how a military pension is divided during the course of a divorce.
Divorced spouses of military members have a claim to one’s pension under the UFSPA
The Uniformed Former Spouses’ Protection Act (UFSPA) was passed by Congress in 1982. This act provided State Courts the power to treat military retired pay as marital property which would have to be divided during a divorce. Pension credits are a form of compensation and compensation earned, during a marriage, is traditionally considered marital property. Under this logic it was determined that all money which has been accumulated during the marriage, towards retirement, is part of the marriage’s property. Any credits which were earned towards pension prior to the marriage, or after the separation, is not considered marital property. During a Virginia divorce the civilian spouse may potentially be awarded up to half of the service member’s pension, but not more.
Property laws in Virginia call for “equitable distribution” of property. This does not necessarily mean an “equal” distribution of property. A Family Law Judge will consider a number of factors when deciding what constitutes an “equitable” division. The salary of both parties is considered and easily calculated, but non-monetary contributions to the marriage are also important when deciding what is equitable. These non-monetary contributions may include cleaning, repairs, making meals for the family, etc. The Courts may choose to divide pension money that is considered part of the marriage down the middle. If the Court does choose to divide the pension equally, then the military spouse may wish to give the civilian spouse something of “equitable value” in order to keep the full pension. The way in which a pension is divided often depends on the Judge, the negotiating powers of the attorneys, and the priorities of each party.
Virginia military members should discuss their priorities with their attorney during the divorce process
It is necessary for each party to have a list of priorities when it comes to dividing up property during a military divorce. Maintaining possession of the marital home is a key issue for some spouses. Maintaining full control over one’s pension is often a key issue for military members. Depending on the amount of money in question, your attorney may be able to negotiate a settlement that allows the military serving party to retain control of the entire pension. For former military spouses who wish to make a claim to their spouse’s pension, once the Court order is complete, your attorney may help you apply to receive direct payments from the Defense Account Finance Services.
If you are a military serviceman, or a military spouse, and are going through a divorce then it is important to contact an attorney who is knowledgeable about military issues. Contact our Virginia Beach law office today for a consultation. We also service Norfolk, Chesapeake, Portsmouth, Suffolk, Newport News, Hampton, Williamsburg, and Yorktown, as well as the surrounding counties of Northampton, Isle of Wight, York, and James City.