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Military Retirement and Benefits in Divorce Cases

A Military Service Member, who is a party in a divorce case, should understand the implications of how a court may enter orders concerning military retirement and benefits. For most active duty and reservists, who have not as yet retired and who are going through a divorce, the Court will “reserve jurisdiction” as to the division of the military retirement. This means that the parties will have to wait until the service member retires before the Court can take any action in dividing the military retirement. A Military Retirement amount is considered “marital property” and the Colorado courts have authority to divide this retirement under certain circumstances. A copy of the military member’s DD214 will need to be furnished to the non-military spouse so that an Order Regarding the Division of Military Retirement can be filed in a timely manner with the Court, once the determination as to the marital share is established. In most situations, the division of the military retirement is a simple mathematical calculation that the parties’ can agree to follow and therefore, eliminate the need for any kind of court hearing.

The Veterans Disability portion or VA disability payment of the military retirement, received by a former military retiree, is not subject to division by the court. The disposable military retiree retirement pay is considered a marital asset or property and will be divided in accordance with Colorado law. Of primary consideration, for the Court in dividing the military retirement, will be a determination as to how many months of military service overlapped the marriage. For example, if the parties were married for 30 years and Husband served in the military for 22 years, all of which occurred during the marriage, then the entire 22 years is considered, “marital.” Husband should be expected to have the military retirement divided in half and paid to his soon to be ex-wife by direct payment from the Defense Finance Department. A former spouse must have been married to a service member for a minimum of 10 years, that overlapped military service, before that spouse will be entitled to request that military retirement benefits be sent directly from DFAS.

Unless there is at least 20 years of marriage, which overlapped a minimum of 20 years of marriage, a former spouse is not entitled to a continuation of military benefits such as Tri-Care health insurance coverage. There may be COBRA coverage available through DEERS, but it will be at the sole expense of the former spouse. Often times, despite the orders of the court that will allow the military spouse to drop coverage on his or her spouse once the Decree of Dissolution of Marriage is signed, children are usually covered by the military member through their 19th birthday, consistent with the Child Support laws in Colorado.

In very few circumstances can it be expected that the non-military spouse would waive or give up any interest in a service member’s future military retirement. Since the military retirement is considered marital property, a court must determine if any waiver of any interest in the retirement is fair and not unconscionable, before anyone should expect that a judge would sign off or approve such a waiver.

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Colorado Springs, CO 80903

Military Retirement and Benefits in Divorce Cases

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