A large portion of military marriages involve one servicemember and one civilian. The servicemember spouse may spend years or even the entirety of the marriage serving in the armed forces. The civilian spouse likely makes numerous sacrifices support the service member. They may relocate repeatedly, give up their professional development due to those moves and sacrifice social connections along the way. They may be at a marked disadvantage when attempting to rebuild after the divorce.
Particularly when the marriage lasted many years and the civilian spouse is close to the age of retirement, they may worry about the possibility of living in poverty after the divorce because they don’t have the income or resources necessary to live independently. Can a civilian spouse request part of a military pension if they divorce in Virginia?
Equitable distribution rules apply to military marriages
Virginia, like a majority of other states, has an equitable distribution statute. Couples don’t necessarily need to divide their assets in half. Instead, they find a fair and reasonable way to split both their belongings and their debts.
Typically, everything that either spouse earns during the marriage is marital property that is subject to division when they divorce. A military pension is often part of the marital estate to the extent that there were contributions made during the marriage. The marital share of such a military pension is subject to division during a divorce. Depending on what the spouses agree on or the courts order, the spouses may actually divide pension payments. They can also offset the value of the pension with other property, though this is more complex.
Military rules do not govern the division of a pension in a military divorce; however, they can impact method of distribution. For example, the commonly heard “10/10 rule” that applies to pensions merely dictates who distributes pension funds to the civilian spouse.
The “10/10 Rule” or “Ten Year Rule” states that if the marriage lasted at least 10 years and the servicemember spouse had 10 years of qualifying service during the marriage, then the non-military spouse can receive direct payments from the Defense Finance and Accounting Service (DFAS). If they do not meet that standard, then the spouses have to negotiate a way to share the pension without involving DFAS. This often means the military spouse will have to pay a monthly amount to the civilian spouse.
There are other nuances to discuss with your attorney, such as whether any portion of a military member’s pension can be converted to disability pay, which is not divisible under Virginia law. That can impact what a civilian spouse may have expected to receive. Becoming familiar with the property division rules that apply in a military divorce scenario can help people prepare for the future. A military pension is a valuable benefit that can help people maintain a reasonable standard of living after a military marriage ends in divorce, but it is a landmine of potential pitfalls if your attorney is not familiar with military divorces. Having good counsel is key to ensuring your rights are protected.
