In a military divorce, almost all of the work done by the lawyers with regard to equitable distribution involves the division of the military pension. The bottom line is that the military does not pay their servicemembers adequately enough to enable them to accumulate any decent savings. However, the military does provide substantial health and retirement benefits to their servicemembers. In a military divorce context, it is very rare to have any vexing issues as to the equitable distribution of marital assets. In most military divorces the most valuable asset is the military pension. Therefore, in a military divorce it is of the utmost important to insure that the civilian spouse receives her fair share of the military pension.
16. What is the biggest myth about dividing military pensions?
First, to dispel the myth, all states, including New Jersey, have the authority to divide a servicemember’s military retirement, regardless of the length of the marriage. In the year of 1982, Congress enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA). This landmark act permits, but does not require, the state courts to divide military retirement upon a divorce or a legal separation or annulment. 10 U.S. Code 1408.
There are no restrictions imposed on a New Jersey divorce court’s authority to divide a military retirement based solely on the the length of marriage. Many people, including many divorce lawyers mistakenly believe that a military pension can only be subject to equitable distribution if the marriage lasted at least 10 years. This is the biggest mistake that most divorce lawyers make when they handle a military divorce case.
What the USFSPA actually states is that the Defense Finance and Accounting Service (DFAS) will pay directly the former spouse’s share of the military pension if there were at least 10 years of marriage. The marriage also must coincide with 10 years of creditable military service. This rule is also commonly known as the 10/10 rule.
Many misinformed lawyers “sell out†their client, and they don’t pursue a fair share of a military pension. The major reason for this error is because many lawyers simply do not understand the concepts of dividing a military pension in a divorce. In New Jersey the family court can still divide a military pension for a couple that has been married less than 10 years. The main distinction is that in a marriage that is less than 10 years, the servicemember has to cut the check to pay his ex-spouse. The military or the DFAS will not pay a portion of a pension directly to the ex-spouse if the marriage was shorter than 10 years.
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