Originally published by The Law Office of Bryan Fagan, PLLC Blog.
Your marriage of ten, twenty or thirty years may have flown by but now you are considering a divorce. Not only is this going to affect you and your spouse presently but your future well being may be impacted as well. Beyond the immediate loss of your spouse is the long term impact that losing out on retirement savings that may be needed for your post-work survival. In an age where we are all concerned about the viability and sustainability of Social Security is the reality that many people remain married to their spouse into retirement age because they feel like they have no choice but to remain married in order to ensure a comfortable life after retirement.
What can be done in the event that your spouse is in the military and you are now moving towards a divorce? Can you divide military retirement benefits as you could civilian retirement benefits? What are the risks to you in moving forward with a divorce from a financial perspective? There is a lot of information about military retirement benefits in a divorce from a general perspective but I wanted to share some in-depth content with you all on this subject. Today’s blog post from the Law Office of Bryan Fagan will seek to answer those questions.
There are really two kinds of divorces: military and nonmilitary
While the divorce laws in our state are the same for all married people, it is important to note that military divorces have several components that differentiate them from non-military divorces. The reasons for that are due to the unique lifestyle that military members have, the effect of military service on a servicemember’s family as well as the challenges that division of military retirement benefits has on divorce participants.
The problem that you as a military member or military spouse are going to run into in trying to do research and locate an attorney that has knowledge of these issues is that very few attorneys have the collective experience in handling military divorces and dividing up military benefits correctly for their clients. The attorneys with the Law Office of Bryan Fagan do have that experience and are therefore interested in being able to share that experience with you today.
Think about it- you wouldn’t want to ask an attorney with no divorce experience to represent you in a divorce case (Although many people do). You also wouldn’t want to ask an attorney with no experience handling military divorces to represent you in a divorce case either. Still, you may be surprised when I tell you that many people walk into courtrooms and mediation offices with an attorney who has never dealt with military divorces before. While I appreciate those who have never had that experience attempting to gain it I cannot recommend that you be the person that the lawyer “practices” with.
As much as offering you advice and perspective on the specific subject of military divorces I would like to use this blog post as a means by which you can figure out if the attorney you are speaking to actually has the requisite knowledge of military divorces to represent you and your family. Interviewing family law attorneys is not something that comes naturally to most people. It is not difficult for you to lose sight of your objective in a meeting with an attorney when it comes to actually try to determine how much that particular attorney has in handling military divorces. It is not something that you want to try to figure out on the fly, either. You need to prepare yourself to listen for certain things and ask certain questions to elicit those responses.
Finally, I hope that this blog post impresses upon you the complexity with which family law cases operate- especially divorces. You may have people in your life- friends or family- that have handled their divorce without any representation. Those people may have been able to walk away from their case unscathed but remember that not all cases are created equal. Even if you believe that you and your spouse want a quick and easy (painless) divorce that may not be how it actually turns out. Your divorce case could very well be contentious and we know that it is going to be complicated if yours involves military retirement.
How much of your military retirement benefits does your spouse stand to receive in a divorce?
From the perspective of a member of our military, you likely did not enter the service in order to gain the approval of your friends and family. There are certain jobs that require less effort and sacrifice that you could have entered into. Rather, you joined the military because you love our country and wanted to help your fellow citizen. Maybe your family has a history of military service. Maybe you had a role model growing up that was a Marine and so that inspired you to become a Marine as well. Either way, you entered the military as a genuine reflection of your appreciation of our country and our values.
However, that’s not to say that you also don’t appreciate the material benefits afforded to you as a member of the military. That includes military retirement benefits. There is nothing wrong with looking out for yourself and your longevity in relation to your divorce. You have worked hard to accumulate some security for yourself after you retire from military service and you do not want to sacrifice that security unnecessarily. At the same time, you likely don’t want your spouse to walk out of your divorce with nothing to show for their commitment to you and what sacrifices for made at home so that you could complete your objectives in your military life.
The number one question that I am asked in consultations with military members is what is likely to happen with their retirement savings in a divorce. If you are a military member you may be wondering the same thing- what does your spouse stand to be able to leave your divorce with as far as your military retirement benefits are concerned?
In most Texas divorces your military retirement benefits will be divided, at least that portion that you accumulated during the course of your marriage. Obviously the longer your marriage has lasted the bigger the slice of your retirement pie that can be divided up. Those benefits that accrued during your marriage are considered to be community property. Community property is subject to division in your divorce. It does not matter that your spouse did not work a day in their life for the military, or perhaps at all outside the home. The State of Texas does not distinguish between spouses in this regard. If you and your spouse were married then your earnings are theirs and vice versa, for better or worse.
Whatever you have earned towards your military pension before your marriage is yours to keep with your spouse having no rights to it. This falls in line with general theories of separate property in Texas. The discussion becomes much more complicated once we get past these fairly straightforward concepts surrounding community and separate property, however.
Military pensions are a bit different from civilian pensions
One important thing to take note of when it comes to military pensions is that the military will not allow your spouse to take home from your divorce more than 50% of your pension. As I touched on in the section prior to this one, the question then is how long have you been married? The longer the length of your marriage the higher the percentage of benefits that your spouse could potentially walk away from the divorce with.
The way that the State of Texas calculates how much your spouse could stand to keep from your military pension compares your total number of months married while you were an active duty member of the service with the total number of months that you have towards retirement benefits.
For example, if you were in the military for twenty years and only married for the last ten years, your spouse wouldn’t have any standing to ask for anything related to your first ten years of military service from a retirement perspective. If you are still in the military at the time of your divorce things become even more complicated than this.
When you are still an active duty servicemember at the time of your divorce
The State of Texas uses a complicated equation to determine the exact amount of retirement benefits that your spouse is able to walk away from the divorce with if you are still actively engaged in your military service at the time of your divorce.
There are basically six component parts to the equation. If you were not a great Math student in high school then you may want to sit down for this. You would take 50% (the percentage of your spouse’s community interest in your military retirement) and multiply that by the number of months that you were in service as a military member during your marriage divided by the number of months in total that you have served as an active duty military member.
Once you have that percentage you will multiply it by .025 x the years and months in active duty military service. That number is then multiplied by the average of your military base pay for the past three years.
Once you have that number you would divide by your monthly gross retired pay at retirement.
Finally, multiply this number by your monthly disposable retired pay at retirement and you finally have a number that your spouse will be able to walk out of your marriage with.
Not only is that fairly convoluted but it takes to research and communication with your attorney to arrive at the correct number. For instance, to figure out what your 36-month base pay is you would need to turn over your payroll records to your attorney. Your attorney will then create a table that will show your base pay for the past three years. Asking an attorney to do math is risky in and of itself (kidding) but to do so you better be sure that your lawyer knows their math and the law.
Is it possible for you to keep all of your military pension in your divorce?
The short answer to this question is, “yes.” The longer answer is yes with some details attached to it. The main detail is that you will have to negotiate with your spouse to get to a point where you are walking away with the entirety of your retirement benefits intact. Sometimes you have a situation where your spouse does not want any of your retirement. Believe it or not, these case happen- not often, however. In other situations, you will need to trade retirement benefits for something else. Maybe you have a separate property interest that you can offer in place of the pension. Maybe a portion (or all) of the rest of your community property share of your equity in your home or some other significant asset can be offered to your spouse.
More on the specifics of dividing a military pension will be discussed in tomorrow’s blog post
I hope that today’s blog post was not only interesting to read but also caused you to stop and think about some of the specifics associated with dividing military retirement benefits. It is not a simple or straightforward process and should not be entered into lightly. While your attorney will be charged with providing advice and counsel to you, it is ultimately your case and your livelihood that is at stake. Be prepared for your case by joining us tomorrow to read more about this important subject.
In the meantime, if you have any questions about the material that we covered today please do not hesitate to contact the Law Office of Bryan Fagan. We offer free of charge consultations with our licensed family law attorneys six days a week. We can discuss your case with you, answer questions and address your concerns in a comfortable and pressure-free environment.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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