How are military benefits divided in divorce?
Wisconsin military divorces involve many of the same issues as non-military cases. The couple must divide their assets according to Wisconsin community property law. However, special rules apply when dividing certain military benefits. Here is some information about how military benefits are divided in divorce in Wisconsin:
Military Pension Benefits
Military pension benefits are governed by the Uniformed Services Former Spouses’ Protection Act (USFSPA). Wisconsin law determines if a spouse may receive part of their ex's military pension, and the USFPSA dictates how the benefit will be calculated and divided.
The 10/10 Rule
One common misconception is that a couple has to have been married for ten years before a spouse can qualify to receive any of his or her active-duty military partner's pension benefit. In truth, a non-military spouse who was married to an active-duty spouse for less than ten years may still be eligible for some portion of his or her partner's military pension. But, for the military to garnish the former spouse's payment from the servicemember's pension, the couple has to have been married for at least ten years. If the marriage was less than ten years and there is a pension award, the military spouse will have to make payments directly to their former spouse. The military will not get involved in dividing the asset.
Amounts of Military Retirement
- Non-military spouses who have been married to military spouses with 20 years or more of qualifying service credit are eligible to receive half of the pension benefit. These spouses are also eligible for commissary privileges and Tricare health coverage.
- Those who have been married for less than 20 years are eligible for a portion of the servicemember's pension. If the servicemember is retired, the spouse's share can be calculated by dividing the number of months the couple was married during his or her military service by the servicemember's number of months of eligible service credit at the time of retirement.
- When a marriage ends while the service member is still active, the calculation starts with the marital percentage or months of marriage divided by months of service. Then you would have to calculate a hypothetical retirement for the servicemember. The calculation can get complicated, and it would be best to get help with estimating a servicemember's hypothetical retirement and your proportionate share.
A servicemember's time serving in the military reserves can count towards a pension benefit, but this time is calculated differently than active duty service. There can also be variations when it comes to determining what constitutes serviceable credit. Additionally, specific language must be used in orders awarding a portion of military pension benefits. If the order has the wrong language, DFAS (Defense Finance and Accounting Services) will not issue payment, and the party who should be paid will have to incur the added expense and hassle of returning to court to rectify the problem.
Assessing and dividing military benefits can be complicated. At First Look Family Law, Attorney Karyn Youso has extensive experience in assisting clients with military marital property division and can help. Contact us today to schedule a consultation.