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How does the court divide a military pension during divorce?

On Behalf of | Apr 23, 2020 | Firm News

Service members of the U.S. military may find that their divorces do not follow the same guidelines as civilian divorces. During a military divorce, one of the most important questions couples have is how the law treats retirement benefits when dividing marital assets. 

There are both state and federal laws that govern the division of service members’ pensions. 

When does the law entitle military spouses to a share of retirement pay? 

Under the federal Uniformed Services Former Spouses’ Protection Act, a spouse may be eligible to receive a portion of retirement benefits if he or she was in a marriage to a military member for at least 10 years, and during those 10 years, the member completed service creditable toward retirement. 

However, the USFSPA also grants state courts the right to distribute military pay as part of divisible marital property under state law. Even if the marriage does not meet the 10/10 rule, the Illinois courts may award a share of the member’s pension as part of a divorce decree. 

When does the Illinois court system have jurisdiction over pension division? 

The USFSPA grants states the right to divide military retirement pay only if the state court has jurisdiction over the service member. In order for an individual to be under state jurisdiction, he or she must either reside in the state (for reasons other than military assignment), have his or her home in the state or otherwise consent to jurisdiction in the state. 

How does the law distribute retirement benefits? 

Under the USFSPA, the court’s distribution of retirement benefits to a former spouse must be in the form of either a percentage of the service member’s disposable pay or a fixed monthly payment. However, the law limits a former spouse to receiving 50% of disposable retirement pay or 65% if child support or alimony is part of a court award.