Whenever a marriage involving a member of the armed services ends in divorce, difficult questions arise as to the division of military retirement benefits as part of the distribution of the marital estate between the parties.
If you’re involved in a divorce that includes military retirement benefits as an element of the community property of the marriage, call my El Paso family law firm for dependable advice. As a former U.S. Army JAG officer, I have a close familiarity with military pensions and other benefits; and as a Texas family lawyer with decades of experience, I know how to work with retirement benefits as a component of the broader property division issue.
When Congress passed the Uniformed Services Former Spouses’ Protection Act (FSPA) some 25 years ago, it made clear that military spouses were entitled to share in their exes’ retirement benefits as part of dividing the marital estate, but it offered no real guidance at all as to how these benefits should be treated either by attorneys in negotiations or by courts in making their decrees. Each state is essentially free to develop its own approach to the treatment of military retirement benefits in divorce, provided that no more than half of the benefits are awarded to the nonmilitary spouse.
Texas, as a community property state, can loosely be said to recognize the civilian spouse as owning half of the retirement benefits that accrued to the military spouse between the date of the marriage and the date of the divorce petition. That doesn’t mean that the ultimate property division agreement or court order will divide the award cleanly in half. Because the community marital estate is regarded as a whole to be divided between the parties fairly, with each party’s claim to any particular asset limited to half its value, it’s usually more realistic to make sure that the retirement benefits are accurately valued and taken into due account in bargaining the entire division.
Notwithstanding the above, certain aspects of the military retirement benefits can be especially attractive to the nonmilitary spouse, not the least of which is the cost of living allowance that increases the value of the benefit every year.