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Property Division in Military Divorce

May 19, 2015

Property settlements in Florida, both for military and non-military divorces, are based on equitable distribution. This does not necessarily mean equal distribution, but rather that a judge will consider a list of factors to determine how to fairly divide the property. However, in military divorces, there are some special considerations and laws to take into account.

Military Retirement Plans

A federal law, the Uniformed Services Former Spouses’ Protection Act, governs how to divide military retirement accounts. It states that military retirement pay will be counted as property, rather than as income, in the event of a divorce. This means that the court can award the pay to the non-military spouse as part of the property settlement.

In some circumstances, an ex-spouse can receive retirement pay directly from the military. This requires that the spouses have been married for a minimum of 10 years while the service member was in the military. If, for example, a couple was married for 14 years, 12 of which one spouse was in the military, the other spouse would be entitled to receive direct payments. However, if a couple was married for 14 years, eight of which one spouse was in the military, this would not be sufficient.

If the divorcing couple does not meet the 10-year requirement for payment directly from the military, Florida law will govern the division of military retirement pay. The court may order that the non-military spouse receives a portion of the retirement pay as part of the property settlement.

Military Medical Benefits

Health insurance is a major benefit of military service, and in some cases, insurance for a spouse does not terminate after a divorce. If a couple is married for at least 20 years, and the marriage overlaps with at least 20 years of military service, the non-military spouse can receive full military benefits. This includes commissary, exchange, and health care.

If the couple was married for 20 years, and one spouse served in the military for 20 years, but the two periods only overlapped by 15 years, the non-military spouse can get full benefits for a transition period of one year after the divorce.

Both the 20-year and 15-year programs are available only if the non-military spouse does not remarry and does not have employer-provided health insurance. If neither program is available, the non-military spouse can purchase a DOD Continued Health Care Benefit Program, which is premium-based and can last for up to 36 months of coverage.

Thrift Savings Plan

A Thrift Savings Plan (TSP) is similar to a 401K, but is sponsored by the federal government. Usually, the contribution amount is a percentage of the military member’s pay. It is important to divide the TSP along with basic military retirement. It is also important to determine how much was paid into the TSP during the marriage.

Survivor Benefit Plan

A Survivor Benefit Plan (SBP) is a program that pays a monthly annuity to the spouse if a military member dies. An SBP is optional, and requires the payment of a monthly premium. Once a military member elects to use an SBP, it is usually not possible to terminate it. However, it may be possible to change the beneficiary. In the event of a divorce, it is important to specify in the property settlement whether the military spouse can change the beneficiary.

A divorce is a stressful event, and the stress is only compounded by the complexities of divorce laws such as those regarding property settlements. If you are going through a divorce, please contact West Palm Beach family law attorney William Wallshein for a free initial consultation.

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