Tampa military divorce

Is my military pension a marital asset?

Your pensions may be at risk. 

In my practice, the overwhelming majority of military divorce law questions I receive center around the service member’s military pension.  Every divorcing soldier wants to know… “can my spouse touch my pension?”  In general, the answer is almost always, yes.

Military pensions are governed by the Uniformed Services Former Spouses’ Protection Act.  (10 U.S.C. § 1408).  The USFSPA allows all states to treat disposable military retired pay as marital or community property upon divorce.  The act does say that the states “may” consider it a marital asset, however, all 50 states and Washington, DC treat the military pension as a divisible marital asset.  It’s worth noting that in Puerto Rico, they do not treat the disposable military retired pay as a marital asset.  It is also worth noting that each individual state’s law governs how to divide the military pension.  There is no federal standard nor any federal calculation to determine the amount each spouse receives.  That is strictly left up to each individual state through statute or case law.

This, in my opinion, often frustrates service members.  However, it is something that each solider needs to be prepared to deal with when they go through the divorce process.  The law is very well established in Florida and your pension will be divided as a marital asset if you were active duty (or reserve or national guard) at any time during your marriage.  There is no getting out if it. However, the amount of monthly payments your spouse will receive will vary drastically according to several different factors that are going to be specific to each case.

The process of calculating what portion of your military pay your spouse will receive in the divorce can be incredibly complicated.  It is imperative that you hire a lawyer that is familiar with how this process works.  One small mistake could possible cost you thousands of dollars if the settlement or final judgment is not worded correctly.

If you have concern on your military pension or require legal assistance in other areas of Family Law you may always contact Damien McKinney of The McKinney Law Group to discuss your case further. He can be reached by phone at 813-428-3400 or by e-mail at [email protected].