Military Pensions are a world into themselves when it comes to divorce. In addition to dealing with the rest of your divorce, knowing how to tackle your or your spouses military pension is key to ensuring a fair and appropriate division of assets in a Rhode Island divorce. Below is a primer on the various issues.
The 10-10 Rule
The first thing to realize is that while the pension, or a portion of the pension, may be marital, and while the Rhode Island courts may order that a spouse has an entitlement to a share of it, the military may not distribute it. There is a rule we call the 10-10 rule: If there is a ten year overlap of military service and marriage, then the Federal Government will accept an order to divide the pension.
Example: Wife and Husband married for 9 years and Husband in military for 24 years. Pension is assignable, but the military will not divide. Husband will have to pay directly to Wife upon receiving pension.
Calculating Military Retirement Benefits
Here’s the short version of how our divorce lawyer calculates a spouses military pension benefits.
- Spouse Benefits = Total Benefits x Marital Share x %Split
- Total Benefits = (Base Pay Rate x Years of Service x 0.025)
- Marital Share = (Years Marriage & Military Overlap / Total Military Years)
- %Split = Whatever the court awards. For further examples we will assume 0.5, i.e. a 50/50 split.
If service member A is receiving a pay of $3,000 per month, has been in the military for 17 years, and marries for 11 of those years, and there is a 50/50 split, the calculation would look like this:
- Spouse Military Pension Benefits = ($3,000/mo x 17 x 0.025) x (11 / 17) x (0.5) = $412.50/month.
So, spouse would be entitled to a share of $412.50 per month by way of a direct pay from the military. Subject to the following, more complex, issues:
Cost of Living Adjustment
The end result of the calculation above is in present day percentages. The future payout would be adjusted for future cost of living adjustments, or COLA.
Defining “Base Pay Rate”
Base Pay Rate is what it says, which mean that when you look at a service members LES, look for “Base Pay Rate” and exclude all the other items like BAH and the like. Now, if the service member stays in the military, as time and promotions come and go, his or her base pay rate will increase, which would, according to the calculation above, alter the calculation above. So, what do you do to divide military pensions in this instance? Ensure you define the rate as being the present rate. But there is a catch. This can be done for guard personnel, but not reserve or, believe it or not, active duty personnel, so, we need to get creative to make the implementing order fair. Here at Moyer Law, PC, Attorney Moyer knows how to structure this. visit here to check out the pay charts.
Military Disability Pensions
Did you know that if there is an order dividing the military pension, and the service member begins collecting VA disability, that the ex-spouse may lose out on her court ordered military retirement share? It’s true. But we can help try to mitigate or avoid this consequence of Federal law.
Summary of Military Retirement Division in Divorce
We hope this primer on military pension division was helpful. If you are involved in a divorce with military aspects, our Warwick lawyer can help you through this and other unusual complexities that arise out of military service. Call us today at (401) 305-2934 to schedule you consultation now.