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Military Pension and Survivor Benefit Plans

Posted by attorney April Townsend
Filed under: Lawsuits and disputes

A spouse is entitled to their share of the military pension no matter how insignificant. Many parties will be deterred from seeking a share of their spouse's pension because of the 10 year rule. The 10 year rules provides that the parties must have been married for 10 years and the service-member must have accumulated 10 years of service before the Defense Finance and Accounting Service (DFAS) will pay a service-member's spouse their portion of the pension directly. However, as hinted at above, this does not mean that the pension is not divisible if the 10 year rule isn't met. The spouse will still be entitled to their share of the pension based on the length of the marriage; the only difference is that the service-member will be responsible for paying the spouse instead of DFAS. This may make it harder for a spouse to enforce the court-ordered division of the pension, but should not deter a spouse from seeking their fair share.

A court will order division of military pension if it has jurisdiction over the service-member. Jurisdiction can be obtained via residence, domicile or consent. The only portion of a service-member's pension, or military retired pay, that can be divided is the "disposable retired pay." The disposable retired pay is the total monthly amount received less certain deductions. The highest percentage a spouse can recieve of the military retired pay is 50%. The spouse will stop receiving their share of the military retired pay when the servicemember dies.

The military also gives the option to participate in a Survivor Benefit Plan. The plan requires the service-member to pay a certain premium to be enrolled in the plan. The Survivor Benefit Plan (SBP) will allow the spouse to continue to receive retired pay following the death of the service-member. The spouse will be entitled to receive up to 55% of the retired pay formerly received by the retiree. To ensure that the spouse of a service-member will receive their share of the SBP as a former spouse, you must complete a "deemed election" specifying that the spouse will be named as a former spouse under the SBP within one year of the dissolution of the marriage.

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