How to calculate military retirement benefits for a divorce

The Uniformed Services Former Spouse Protection Act (USFSPA) governs the rights of former military spouses with respect to retirement settlement benefits. State courts have jurisdiction over military retirement benefits because of the service member's residence or their consent to the jurisdiction of the court.

It is best to file for divorce in the state you are currently living in. In Texas, either spouse can satisfy the residency requirements of living in the Texas for six (6) months and ninety (90) days in the county where the petition is to be filed. There is some difficulty for military families who are constantly on the move to determine which state they are a resident of. As mentioned earlier, the quickest way to obtain a divorce is to file the petition in the state that you are currently living in provided that you meet the residency requirements of that state. However, a spouse has the option to file a divorce petition in the state where they a legally domiciled in. Domicile means the state where a spouse maintains a permanent residence. Once when a Final Divorce Decree has been issued you can file decree in the state of your domicile.

There is a bit of confusion regarding whether a spouse can obtain military benefits if they have been married less than 10 years. According to the terms of USFSPA, a spouse may claim a portion of the service member's retirement benefits if the couple was married for ten (10) years or more while the service member served ten (10) years of creditable military service. However, what this means in laymen's terms is a spouse may obtain an order from the court and be paid directly from the military if they meet the 10/10 rule. If you do not meet the above mentioned requirements, a court can still order property division of the service member's military retirement benefits but any payments would have to be made from the service member spouse, not the military.

Determining the amount of retirement pay under USFSPA is moderately difficult, however, USFSPA provides for an equation to help you determine your portion of the retirement benefits as a percentage or fraction of the disposable pay. It is important to remember, a spouse can only collect the service member's retirement benefits when they have matured, in other words, when the service member has reached the age of retirement.

There are three steps to determine your percentage or fraction under USFSPA: First, in the numerator, put the number of years of creditable service during marriage. Second, in the denominator put the total number of years of creditable service at the time the service member would retire. Because Texas is a community property state, any income derived during the marriage is divided equally amongst the spouses. Third, after you have calculated your percentage or fraction of the service member's military benefits multiply the percentage or fraction by your share of the community property interest, fifty (50) percent or one half (1/2). This percentage or fraction you are entitled to under USFSPA.

Further, even if a court authorizes payment of more than the service member's disposable income, USFSPA authorizes the government to only pay up to fifty (50) percent of the disposable retirement pay directly to the spouse.

If you need help obtaining a divorce or figuring out your portion of military benefits, visit www.tonyfamlaw.com more information.