When divorces involve a military member, there are unique considerations to be made for those military families, especially when it comes to dividing assets. From a legal standpoint, military divorces are not fundamentally different from civilian ones. Both proceed through the same court systems and are subject to the same basic legal principles.
In other words, a military divorce does not fall under the Uniform Code of Military Justice (UCMJ) purview. However, the difference lies in the nature and handling of specific military-related assets, such as pensions and thrift savings plans, which require a family law attorney who understands them and knows how they can be distributed equitably.
Same Courts, Different Assets
Military and civilian divorces are processed through the same state courts and must adhere to the legal principles governing divorce, child custody, and support. This means that the same laws regarding the division of assets, alimony, and child support calculations apply. However, the distinction arises, like the assets and benefits of a military divorce.
One of the most significant aspects of a military divorce is understanding and appropriately handling individual military assets. Two key elements often central to military divorces are pensions and thrift savings plans.
Military Pensions: These are a primary concern in many military divorces. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), state courts are authorized to distribute military retired pay to a spouse as part of a divorce, but it is not mandated. The division of military pensions in a divorce is complex. It can be influenced by how long the marriage lasted, the time that one (or both spouses) spent in military service, and the overlap between these periods.
Thrift Savings Plan (TSP): Similar to a civilian 401(k), the TSP is a unique benefit. It is a retirement savings and investment plan that federal employees and members of the military use. In a divorce, TSP accounts are viewed as marital property, and because of it, they are divided between the spouses. Specific rules govern the division process and require a deep understanding of military and financial law.
Equitable Distribution
States generally follow the principle of equitable distribution in divorces, meaning that assets are divided fairly—which does not automatically mean equally. Equitable distribution does not imply a 50/50 split but doesn’t prohibit it. This principle becomes particularly complex in military divorces due to the unique nature of military benefits and assets. Determining what constitutes a fair division of these assets demands a nuanced understanding of military compensation structures and state divorce laws.
An attorney with experience in military divorces can be invaluable in these situations. They can ensure that the division of military pensions and TSP accounts complies with both state laws and military regulations. Furthermore, they can help address issues such as determining the “marital portion” of a pension or navigating the Survivor Benefit Plan, which involves decisions about future benefits and requires careful legal consideration.
Cate & Brough:
Military divorces go through the same courts and are subject to the same fundamental legal principles as civilian divorces. The critical difference lies in the assets involved. Military pensions and thrift savings plans are complex assets requiring experienced legal counsel that can facilitate fair and legal distribution. An attorney with a background in military divorces is key to ensuring that both parties receive an equitable distribution of assets, reflecting the unique circumstances of military life and service. To meet with us to discuss the details of your divorce, military or civilian, contact us to schedule a consultation.
Cate & Brough, P.A.
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