Dividing Military Retirement and Electing Disability Pay: Protecting Non-Military Spouses

Description

Dividing military pensions is complex, and one wellspring of confusion is how to protect the non-service member spouse if the service member elects disability pay in lieu of monthly retirement pay. The problem arises because the Uniformed Services Former Spouse Protection Act (USFSPA) permits state courts to divide "disposable retired pay," but it prohibits dividing disability pay.

If a military retiree elects disability, he or she must waive their gross retired pay, dollar for dollar, for every dollar of disability to be received, which reduces the amount of "divisible" retirement pay that courts can award. Furthermore, the service member can elect disability benefits at any time, including years after the final divorce decree and without the consent of the former spouse. Thus, exchanging retirement pay for disability could deprive a non-military spouse of their fair share in a divorce or lead to reduced payments without warning.

The non-military spouse, however, has a number of options to protect their interests but foresight and diligence are required.

Listen as our experienced panel of military divorce attorneys discusses how disability affects the division of military pensions and best strategies for anticipating and planning for these types of elections.