Division of retirement income is a common occurrence in divorce, especially in Northern Virginia. If the parties cannot come to an agreement, they will have to allow a judge to make a decision for them.
Several factors make military retirement income more complicated in a military divorce. The first is the distinction between retirement pay and disability benefits. Another is, both federal and state laws apply in a military divorce. To illustrate how this might go wrong, imagine that a married couple divorces right before the military member retires. The parties have agreed that the non-military spouse will receive 50% of the military spouses retirement pay. However, at retirement, the military member gets to choose if they want to waive some of their retirement pay and receive disability payments instead. As you may have guessed, this will leave the non-military spouse with significantly less money.
Federal law states that only the military retirement pay can be divided with a spouse in divorce. An old work-around was to include language in the Property Settlement Agreement or the court order that the military member will indemnify the divorced spouse for any loss created if they choose to waive part of their retirement pay. However, a recent Supreme Court case, Howell v. Howell, held that military members cannot be forced to indemnify the divorced spouse for this loss.
There are still ways to solve this problem. A Commonwealth divorce court can still “make the spouse whole” by awarding more alimony. The Court can even order certain assets be turned over. Contrary to popular belief, there is no federal law that states a divorcing spouse is automatically entitled to receive a specific amount of the military person’s retirement income. See the Defense and Financing Accounting Services (DFAS) site for more information. Even after your divorce is over.
Understanding your legal rights when settling a divorce requires the experience of a seasoned, Virginia family law attorney. Contact Keithley Law, PLLC, PLLC today by calling (703) 454-5147 and schedule an initial consultation in our Fairfax law office with an experienced, Virginia Family Law attorney.
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