How Do Courts Calculate Military Pension Division?
When a marriage ends in divorce, one of the most complicated financial issues that may arise is the division of retirement benefits. For military families, this often includes the fair and lawful distribution of a military pension. Understanding how courts calculate military pension division is critical for both service members and their spouses.
At The Law Offices of Howe & Garside, Ltd, we serve our clients in Rhode Island with professionalism, preparation, and years of experience in every case. Our goal is always to protect your interests and help you move forward with clarity.
Let’s break down how military pensions are treated in divorce, how courts determine what’s fair, and what factors could influence the outcome.
What Is a Military Pension?
A military pension is a form of deferred compensation for service members who serve for at least 20 years in the United States Armed Forces. These pensions provide a steady income stream after retirement and are considered a significant marital asset in many divorces.
Military pensions are governed by federal and state laws, and while the federal government provides the guidelines, it’s up to state courts to divide the pension during divorce proceedings.
Federal and State Law
Understanding how military pensions are divided begins with understanding the interplay between federal and state law.
The Uniformed Services Former Spouses’ Protection Act (USFSPA)
The USFSPA, passed in 1982, authorizes state courts to treat disposable military retired pay as marital property and divide it during divorce. However, this law does not require the division—it simply permits it.
It’s important to note that:
The USFSPA defines “disposable retired pay” as the portion of the pension left after deductions such as disability pay or survivor benefit plan (SBP) premiums.
Only this disposable portion is subject to division in a divorce settlement.
This federal law gives Rhode Island courts the authority to divide military pensions in a way that is fair and equitable based on state law.
Rhode Island’s Approach to Property Division
Rhode Island is an equitable distribution state, meaning the court divides marital property based on fairness—not necessarily equality.
Marital vs. Separate Property
In Rhode Island:
Marital property generally includes all assets acquired during the marriage, including retirement benefits such as military pensions.
Separate property includes assets acquired before the marriage or by gift/inheritance during the marriage, and is typically not divided unless it has been commingled.
If the military service occurred during the marriage, the portion of the pension earned during that time is typically considered marital property and subject to division.
Key Factors Courts Consider
Rhode Island family courts consider several factors when determining how much of the military pension should go to a non-military spouse.
Length of the Marriage and Overlap with Military Service
Perhaps the most important factor is how many years the marriage overlapped with military service. This determines how much of the pension is considered marital property.
For example:
If a service member served for 20 years but was only married for 10 of those years, only half the pension may be considered marital property.
The longer the overlap, the greater the share that may be subject to division.
Other Relevant Factors
Before finalizing a pension division, the court will also weigh other considerations such as: the length of the marriage, the age and health of each spouse, each spouse’s income and earning potential, the contributions each spouse made to the marriage, both financial and non-financial and whether one spouse sacrificed career opportunities for the other’s military service.
Common Methods for Dividing the Pension
Courts and attorneys typically use one of several accepted methods to divide military pensions fairly. The method used may depend on the stage of the service member’s career and whether they have already retired.
The Time Rule Formula (Coverture Fraction)
This is one of the most commonly used methods and applies especially when the service member is not yet retired. It allocates the marital portion based on the ratio of time the couple was married during service to the total service time.
Here’s how it works:
The marital share = (months of marriage during military service ÷ total months of military service) × total pension benefit.
The non-military spouse receives a percentage of this marital share, usually up to 50%.
This method is favored because it adjusts the final share based on the actual retirement benefit when it’s awarded.
Fixed Dollar Amount or Percentage
If the military member has already retired and the monthly benefit is known:
The court may assign a fixed dollar amount to the non-military spouse each month.
Alternatively, it might award a fixed percentage of the monthly retired pay.
This method provides predictability but does not account for future increases due to cost-of-living adjustments or promotions.
Present Value Offset
In some cases, the military pension may be assigned a lump-sum present value, and the non-military spouse receives a different asset—such as real estate or a cash payment—in exchange for waiving pension rights.
This approach is often used when:
The parties want a clean break.
The pension is the only significant asset.
There is another asset of comparable value.
We always advise working with an experienced attorney and possibly a financial professional to confirm accurate calculations under this method.
Direct Payment from the Defense Finance and Accounting Service (DFAS)
The USFSPA allows for direct payment of military retirement benefits from DFAS to the former spouse, but certain conditions must be met.
The 10/10 Rule
To qualify for direct DFAS payments:
The couple must have been married for at least 10 years.
The service member must have performed at least 10 years of creditable military service during the marriage.
This rule does not affect eligibility for pension division, only how it’s paid. If the marriage doesn’t meet the 10/10 threshold, the court can still divide the pension, but the service member will make payments directly to the ex-spouse.
Key Requirements for DFAS Payment
To receive direct payment, the court order must clearly state the percentage or fixed amount awarded, comply with DFAS formatting requirements, and be accompanied by a completed DD Form 2293 and a certified copy of the court order.
Working with an experienced Rhode Island divorce attorney helps to confirm that the court order meets these standards and avoids processing delays.
What About Disability Pay?
Military disability pay introduces another layer of complication to pension division.
VA Disability Compensation
Veterans who receive VA disability compensation may waive an equivalent amount of their retired pay to receive the tax-free disability benefits. This reduces the "disposable retired pay" that can be divided.
Because disability pay is considered separate property:
It’s not subject to division under the USFSPA.
It may reduce the ex-spouse’s share of the retirement benefit if a waiver is taken.
Combat-Related Special Compensation (CRSC) and Concurrent Retirement and Disability Pay (CRDP)
Some retirees may be eligible for both military retired pay and disability benefits under special programs like:
CRDP, which allows concurrent receipt of retirement and disability pay.
CRSC, which compensates for combat-related disabilities.
These programs can affect the amount of pension available for division. It's important to consult legal counsel to understand how these benefits impact the distribution.
Survivor Benefit Plan (SBP) Considerations
The Survivor Benefit Plan is an insurance program that provides continued payments to a designated beneficiary after the retiree’s death.
Why SBP Matters in Divorce
Without an SBP election, the pension payments stop upon the service member’s death, leaving the ex-spouse with no income. To protect the non-military spouse, the divorce settlement should address whether SBP will be maintained, who will pay the premiums and how to confirm proper election is made (within one year of divorce via DFAS).
Failing to address SBP in the divorce decree can result in the ex-spouse losing critical financial protection.
How a Rhode Island Family Law Attorney Can Help
Working through the division of a military pension requires skill, foresight, and deep knowledge of both state and federal law.
At our law office, we take pride in being professional in every aspect of our service, prepared with the latest legal tools and case law, experienced with military divorces and complicated asset division and goal-oriented, focused on achieving results that secure your financial future.
We help our clients with customized strategies tailored to their unique circumstances.
Frequently Asked Questions
Can the Court Divide a Military Pension Even if We Were Only Married for a Few Years?
Yes, Rhode Island courts can divide military pensions regardless of how long you were married. However, the portion of the pension considered marital property—and therefore subject to division—will be much smaller.
Is Military Pension Division Automatic in Divorce?
No. The court must first determine whether the pension is marital property and then decide how it should be divided. If you don’t raise the issue during the divorce, you may lose your right to claim a share.
Can a Former Spouse Receive Part of the Military Pension if the Service Member Has Not Yet Retired?
Yes, the court can award a share of a future military pension even if the service member is still on active duty. This is commonly handled through a formula such as the Time Rule.
Contact Us Today
Military divorces can be emotionally and financially challenging. Understanding how military pensions are calculated and divided can empower you to make informed decisions. At The Law Offices of Howe & Garside, Ltd, we serve clients throughout Newport, Lincoln, Providence, Warwick, Bristol, Westerly, Woonsocket, and Pawtucket. We are ready to help you work through every stage of the divorce process—including the division of military pensions—with precision and care. Contact us today to schedule a consultation.