Military service members and spouses contemplating divorce want to know how much of the military pension will be split in the process. In New Jersey, as elsewhere, the former spouse of a military service member may be entitled to a certain portion of the military retiree’s pension.
As a general rule, spouses in a divorce proceeding are entitled to an equitable distribution of the marital assets. When it comes to a pension, it is the Court’s duty to determine what portion of the pension constitutes a “shared enterprise” and to divide that portion equitably. There is no simple calculation of a former spouse’s equitable share of a military pension but there are some basic considerations.
First, the distribution of military pensions to former spouses is governed by the Uniformed Services Former Spouses Protection Act (USFSPA). The USFSPA does not automatically entitle an ex-spouse to a service member’s retirement pay. However, it does allow State Courts to treat a military pension as a distributable asset in a divorce proceeding just like any civilian pension. Despite popular belief, there is no minimum time period a couple must have been married to distribute a pension but there are some limitations.
Ex-spouses awarded a portion of a military pension may receive direct payment from the Department of Finance and Accounting (DFAS) only if the couple was married for at least 10 years and the military retiree had 10 years of military service while married. Regardless, such direct payments from DFAS cannot exceed 50% of disposable retirement pay (or 65% if combined with garnishment for alimony and/or child support). In other words, an ex-spouse married less than 10 years may still be entitled to a share of the pension but DFAS will not pay them directly.
With these limitations in mind, a New Jersey Court will then apply a series of factors to determine what portion of the military pension is subject to equitable distribution. In doing so, a Court will typically determine the “coverture fraction” of the pension to which the non-military spouse is entitled.
By way of example, if a service member retires after 20 years and 12 of those years overlapped with the military member’s service time then the “coverture fraction” of the pension subject to equitable distribution would likely be 12 out of 20 years, i.e., 60%.
But the calculation does not end there. That 12/20 (60%) would then be further divided by a portion allocated to the non-military spouse as their equitable portion of the “shared enterprise.” For instance, a Court could determine that a non-military ex-spouse is entitled to 50% of the 12 out of 20 overlapping years the couple was married while the military spouse was serving. Thus, 50% of 12/20 (60%) would equal 30% of the total military pension in this example.
Ensuring that your right to a military pension is properly distributed in a divorce is extremely important. If you or your spouse is a member of the military and contemplating divorce, you should be represented by a matrimonial attorney who is familiar with the intricacies of military pensions and other military benefits that are affected in a divorce. Contact Kevin J. Murphy, Esq. at 856.428.8779 or firstname.lastname@example.org for a consultation.