Family law matters with military service members often involve unique issues that do not arise with other families. Special circumstances related to where a family is stationed may affect where a divorce or custody action can be filed. The judge and attorneys need to understand the structure of military compensation and benefits, and specific rules about military retirement accounts that do not apply to retirement accounts from any other employment.
A military pension is arguably the biggest single benefit that comes from long-term military service. For this reason, many service members and military spouses have questions about what happens to a military pension in divorce.
State law decides how you divide your property
There is often confusion when it comes to military pensions and benefits because of federal laws and regulations that govern the military. It is common for these laws to create more questions than answers when it comes to divorce.
At the most basic level, the laws of the State of New Jersey determine what happens to assets and debts in divorce. Most divorcing couples will negotiate an agreement to settle these disputes, taking guidance from their rights and obligations under the law. In the case of military families, the standards in New Jersey divorce law may be different from what they expect based on military regulations.
New Jersey law provides for assets and debts acquired during the marriage to be equitably, or fairly, divided between spouses in a divorce. This includes at least some portion of a military pension.
What about the 10/10 rule?
One of the most common sources of confusion about military pensions is the application of the “10/10” rule. To understand how the 10/10 rule impacts division of a military pension, you have to understand its limitations.
The 10/10 rule only establishes when a non-military spouse qualifies for direct pension payments from the Defense Finance and Accounting Service (DFAS). If the couple remained married for at least 10 years and the servicemember had 10 years of qualifying service during the marriage, then DFAS can make direct pension payments to the non-military spouse. This does not mean that the non-military spouse does not share in the pension if the couple is not married for 10 years overlapping with 10 years of military service. The rule only dictates when DFAS will be involved in the distribution. The final resolution of the divorce can establish a means of handling the distribution privately between the spouses when the 10/10 rule is not met. As is the case with other assets and debts in divorce, this is an issue to be negotiated between spouse as part of the divorce.
Other considerations unique to military pensions
Debunking misconceptions about the 10/10 rule is only one important part of handling military pensions. The attorney representing a military service member or military spouse must also be familiar with how the distribution of a pension is calculated based on the frozen benefit rule, and the nuances of the military survivor benefit plan. Knowledge of these principles that only apply to military divorce matters is critical whether you are trying to negotiate a fair agreement or present a case to a judge.
If you are a military service member or military spouse considering divorce, it is important to find an attorney who is well versed in military divorce to protect your interests. Learning more about what you can expect in a New Jersey military divorce can help ease the stress of going to family court.
