A military pension requires special handling in a divorce. It is different from a normal pension or retirement account, which is a pool of money that the account holder can draw from. A military pension is more accurately called “retired pay,” which is the term used by the Department of Defense. Each year, a retired service member receives a payment from the government in an amount based on years of service. When the member dies, the payments stop. Unlike a 401(k) or regular pension, there is no account to pass on to heirs.
If a service member gets divorced, their retired pay is considered marital property and will be subject to division. In other words, under New York law, the member’s spouse is entitled to a portion of the retired pay.
One myth about military pensions/retired pay is that it will be divided only if the marriage lasted at least 10 years. That is simply not true. Courts can award a spouse a share of the retired pay even in marriages that lasted only a few months. The 10-year rule relates only to a spouse’s ability to be paid directly from the government. Another myth is that if the marriage did last 10 years, then the non-service member spouse is automatically entitled to half the retired pay. That is not true either. The Former Spouses Protection Act says that retired pay gets divided according to the laws of the state where the divorce happens. In New York, that means the court will seek to divide all marital property, including retired pay, according to the system of equitable distribution. The distribution must be fair but need not be equal.
The amount of retired pay a member receives can and does vary. There are four different military retirement plans and they each provide different amounts. Whichever retirement plan the service member has, the divorce court can divide the retired pay. The money gets included in the couple’s overall assets and is divided like the rest of the couple’s marital property. If the marriage was 10 years or longer, then the non-member spouse will be paid directly by the government. If the marriage was shorter, then the service member spouse will need to make the payments.
The military pension issue can be a challenge for couples to navigate in a divorce. At the Law Offices of Randy S. Margulis in Buffalo, New York, we are ready to help you. Call our office at 716-886-9600 or contact us online to speak to a lawyer today.
As a Buffalo divorce lawyer for 28 years, I have devoted myself to solving the problems that affect families throughout the Buffalo metropolitan area and Western New York. As a family law attorney, I make it my goal to create a partnership of trust with my clients. People put their trust in me to handle cases that can potentially have a long-lasting impact on not only their lives, but the lives of their family as well.
Alexandra M. Rockwood is a Senior Associate Attorney with the Law Offices of Randy S. Margulis & Associates and has been with the firm since early 2020. She primarily practices in the areas of matrimonial and family law, including divorce, child custody, and child support. Alexandra is a practicing matrimonial and family law attorney as…