Military Divorce Attorney - Example: First, calculate Retired pay based upon years of creditable service as if no disability (this is the military spouse's Gross pay). Second, multiply active duty base pay by the service member's disability rating. Then compare the two results.
Of the two figures, the service member is entitled to the higher amount as his or her disability Retired pay. Under the USFSPA, the only portion divisible in divorce as property is the difference between Gross pay and disability pay based upon disability rating.
Military Divorce Attorney
For some civilian spouses, half of the community portion will not amount to much. Negotiating other alternatives, such as increased spousal maintenance, could make up the difference. 
Contact Wilson Brown Pllc – Experts In Military Divorces
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No matter the circumstances, dissolving a marriage is a significant life event that could impact your family and your finances for the rest of your life.
That's why you need to hire military divorce attorneys to oversee the proceedings. The Disability Issue in the Distribution of Military Retirement Benefits Given the current status of the law, there are several remedies that can be used to protect a former spouse from a reduction in his or her share of the marital portion due to the member receiving disability.
There is one more military retirement asset to consider – the Thrift Savings Plan. Voluntarily contributing a portion of his or her military bonus, special, or incentive pay to a TSP is another retirement option for service members.
Paralleling the civilian's 401k, the community portion of a tax-deferred TSP is also subject to division in divorce in most states. American Bar Association ® The National Defense Authorization Act for Fiscal Year 2017, or NDAA 17, updated the USFSPA with a frozen benefit division rule.
Thrift Savings Plan
Pub. Law 114-328 Dec. 23, 2016. Service members and their spouses need to understand how the frozen benefit division rule applies to military Retired pay division in divorce, legal separation, or annulment. The service member's pension is either Longevity Retired pay based upon their length of service or military disability Retired pay because he or she was either determined unfit for continued service or later became disabled for reasons of service.
The first three formulas described above are used to calculate Longevity Retired pay. Determining the date of initial entry into military service is essential to accurately assess the marital portion of a military pension. There is a reason why military retired pay is divisible marital property in a divorce.
In 1982, the Uniformed Services Former Spouses Protection Act (USFSPA) made it so. 10 USC § 1408. The USFSPA, which controls the military pension division, makes the service member's "disposable retired pay" a potentially divisible marital asset in divorce proceedings.
This is important! Only the marital component of the service member's disposable retired pay is a divisible asset in divorce law. FindLaw's detailed California law firm profiles have information like the firm's areas of law, office locations, office hours, and payment options.
Uniform Frozen Benefit Division Rule
Attorney profiles include the biography, law school education and training, and client recommendations of an attorney to help you decide who to hire. A garnishment order should be entered by the court and provided to the appropriate office.
For the Army, Navy, Marines, and Air Force, the DFAS is responsible for administering retired pay and garnishment. The U.S. Coast Guard, a component of the Department of Homeland Security, administers Retired pay for the commissioned Corps of the Public Health Service and the National Oceanic and Atmospheric Administration (both of which are considered "uniform services" under federal law), as well as its
own retirees, through its Pay and Personnel Center in Topeka, Kansas. Garnishment orders can be complex and create difficulty for even a seasoned practitioner. It may be advisable to find a "wingman" to draft the garnishment orders and handle submission to the pay center.
Federal law sets out which moneys are subject to garnishment and which are not. The most common elements of one's pay and allowances that are exempt from garnishment are the Basic Allowance for Housing (BAH) and the Basic Allowance for Subsistence (BAS).
Military Retired Pay Longevity Retired Pay Or Disability Retired Pay
Whether earned while in the military or as a civilian employee, any deferred compensation Categorized as community property is subject to division in the parties' divorce. Calculating military Retired pay in advance of division, though, is not always as straightforward as civilian retirement plans or pensions.
Generally, with divorces filed in Arizona, for example, the accumulation of months of marital pension service stops on the date the case begins. That is when the petition for dissolution of marriage is filed and served on the other spouse if it results in dissolution of marriage.
ARS § 25-211. Recall, too, that with pensions for those in the National Guard and Reserve, the community fraction is determined using retirement points, not months of service. In other words, the federal government will not honor any court order attempting to divide military retired pay unless it is accurate and absolutely spot-on.
Only a qualified order dividing retired pay will result in military pension division upon divorce. The pension division Retired pay center at the Defense Finance and Accounting Services (DFAS) rejects any submitted order that is non-compliant with the applicable DoD Financial Management Regulation.
I Asked My Ex’s Commanding Officer For A Garnishment And I Got Nowhere What Can I Do?
Guess-work and ambiguity in the order, even when signed by the judge in the case, will likely result in its rejection by the DFAS. The order simply won't get processed. As they say in baseball, "Close only counts in Horseshoes and hand grenades."
If you represent military families, then you should be dedicated to staying abreast of changes in the law. You will also want to closely follow legal trends that could potentially impact your military retirement & divorce cases.
The Servicemembers Civil Relief Act may provide some protection. The service member should first request a stay of the proceedings, and he or she may make additional stay requests later on. An application for an additional stay may be made at the time of the original request or later.
If the court refuses to grant an additional stay, then the court must appoint Counsel to represent the service member in the action or proceeding. The service member should confer with appointed counsel (or retain counsel) to discuss additional options.
Nothing Less Than Accuracy Will Do
Another aspect of divorce proceedings unique to military marriages is military benefits, such as military retirement, base privileges, and other benefits. Therefore, your divorce lawyers must understand the legal rights of the military spouse, which does not come up in a civilian divorce.
Use FindLaw to hire a local military divorce lawyer to work with you on issues like community property division, debt allocation, military retirement plan divisions, military benefit divisions, child custody and support, alimony, and tax considerations.
The military card and its associated privileges are granted by the U.S. government, not the servicemember spouse. The service member does not have the right to take the ID card away because only the U.S. government has that authority.
In some circumstances, the base personnel office may issue an ID card without the service member's direct consent. The so-called "hypothetical clause" refers to the factual details the court must include in the written order for it to serve as a qualified pension division order acceptable to the federal government.
I Am A Military Member On Active Duty And Have Been Served With Divorce Papers I Have No Time To Attend To The Matter Because Of My Military Duties What Can I Do?
If incorrect, ambiguous, or missing information, then the military pension division order will not be in compliance with the USFSPA's “hypothetical clause” requirement in 10 USC § 1408. The order must also state that the amount to be divided is “disposable Retired pay
” as set forth in the NDAA 17's § 641 and as codified in the USFSPA's § 1408(a)(4). Be mindful that it is the Attorneys who draft the proposed court order for the judge's signature. Therefore, the responsibility of getting the language of the hypothetical clause absolutely correct lies with the attorneys.
Trial experience matters. We understand how painful divorce can be under any circumstances. But divorce, where one or both parties are active military members, can be painful and complicated. So whether you are a military member or a military spouse, reach out to Wilson Brown, PLLC.
Our team features an experienced military divorce attorney, a specific branch of family law. Military pensions are a type of deferred compensation. This simply means a portion of the service member's pay is set aside to be paid at a future date by the service member's employer, the federal government.
Military Benefits
In addition to military Retired pay and Thrift Savings Plan, both of which are qualified plans, a spouse might also have non-military deferred compensation from other employment in the form of 401(k) or 403(b) plans, IRAs, bonus plans
, stock options, and profit-sharing plans. The frozen benefit division rule requires asserting a hypothetical retirement date before determining how much of the service member's pension the other spouse is entitled to in the property division.
Under federal rules, the military spouse's so-called retirement date is the day of the divorce. That's legal fiction in almost every case. The active-duty service member's actual retirement date (or final retirement pay grade) is not considered when determining disposable Retired pay as defined in § 1408(a)(4) of the USFSPA.
Remember: Only the marital portion of the service member's disposable Retired pay must be divided by law in divorce. The former spouse can only be paid a share of the military spouse's total monthly retired pay as determined on the hypothetical retirement date.
I Have Filed For Divorce And My Spouse Is In The Military Can He Or She Take Away My Military Id Card While The Case Is Pending?
That would be the date of the final decree (whether divorce, annulment, or legal separation). If the service member is unable to obtain military disability retired pay, then he or she can look to the VA for disability compensation.
There is much to consider with disability pay, such as disability Severance pay, combat-related special compensation, and concurrent retirement and disability pay. All of these possibilities should be discussed with your attorney. 
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The parties could set the former spouse's share as a fixed dollar amount, percentage, formula, or hypothetical with contrived rank with manufactured years of service. Example: To calculate the amount of Retired pay using the final pay formula take 2.5% times years of creditable service times final basic pay at the time of retirement.
Hypothetical Clause In A Qualified Order Dividing Retired Pay
A cost of living adjustment (COLA) is applied to Retired pay each year to protect the retiree against inflation. [*DIEMS is the Date of Initial Entry to Military Service.] Members of the Armed Forces benefit from a unified retirement system.
All things being equal, the plan participant's rank and years of creditable service determine retired pay, but their branch of service does not. Typically, military members become eligible for retirement after a minimum of 20 years of active duty service.
For members of the National Guard and Reserves, active duty means annual training and actual mobilization. (For retirement purposes, weekend drills are inactive duty training and not creditable service.) This rule applies uniformly to all states, the District of Columbia, and U.S.
territories. No longer is the method of dividing an active duty service member's retired pay left to the individual states to decide independently. Since its December 23, 2016, effective date, all states must apply the federal rule uniformly.
Military Pensions As Divisible Community Property
While individual states have various methods of determining terms for separation agreements that settle the division of community assets and debts, including pensions, but the frozen benefit division rule must still apply. Spouses in military divorce cannot reach any agreement or settlement that deviates from the federal rule's requirements.
Military divorce sometimes features unique circumstances, primarily if one spouse is serving away from home or in a foreign country. This is one reason the federal government enacted the Servicemember Civil Relief Act. This piece of federal legislation protects active-duty military members from being divorced by their spouses without their knowledge.
handled differently when the military spouse's retirement is based upon disability. A service member's disability pay could come in two forms: A garnishment is based on a court order. The only way to stop a garnishment is to obtain a court order that terminates it.
Military Retirement Divorce Calculating Disposable Retired Pay
State law determines whether this is possible and under what circumstances a court may step in and stop the garnishment. This is compensation for service-connected illnesses that may reduce the military spouse's earning capacity. Disability status could be determined before or after retirement.
Or the disability might not be such that the service member will qualify for military disability Retired pay. The USFSPA limits pension division awards to fifty percent of the member's disposable retired pay, but the maximum may be as high as sixty-five percent if there are alimony and/or child support orders against the member as well.
There are also certain exceptions in the event of multiple court orders involving different spouses.
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