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Protecting Military Retirement Pay In The Event Of A Divorce

What Happens To A Military Personnel’s Pay In A Divorce?

What happens to a military personnel’s military retirement pay, also known as MRP, in the event of a divorce? Is the former non-military spouse entitled to a portion of the retirement benefits? What does the law say if the marine opts to stay in active duty even after he or she has become eligible for retirement? If you or your spouse is serving in the military, these are some of the questions you should ask a divorce attorney Scottsdale AZ firm.

Divorces are not pretty, especially when they involve a military member. In such a case, the law can be a slippery slope. One or both parties involved may be dissatisfied with a court’s ruling with regards to the military pension, as was the case of Barron v. Barron in Arizona Supreme Court (V-18-0234-PR, 440 P.3d 1136).

How Does the Federal Government Treat MRP During Divorce?

Members of the U.S. military are eligible for retirement after 20 years of active duty. After retirement, the veterans are entitled to various benefits. 

In 1982, Congress passed the Uniformed Services Former Spouses Protection Act (USFSPA), to protect former spouses of military members. The USFSPA considers disposable retirement pay as “community property”, which his eligible for division during a divorce.

Usually, states can divide MRP as community property when dividing other marital assets. In the case of Barron, one spouse was still an active member of the U.S. military that was eligible for retirement in 2023. By then, the active military spouse would have completed 20 years of service. 

The Supreme Court judge ordered the marital assets as well as the MRP to be divided between the spouses, supposing that the military spouse will retire and collect his retirement pension when eligible.

Where Did the Error Come In?

While Federal law recognizes the division of MRP, the extent of such jurisdiction is limited. A family law judge is allowed to divide the military pension, only if it is disposable retired pay. 

In the case of Barron, the trial court judge ruled that should the military spouse (husband) choose to stay in active duty past the retirement period, the wife should receive payments equivalent to what would have been due to her had the retirement actually happened.

However, the military spouse appealed and the U.S. Supreme Court reversed the ruling. The Supreme Court held that such indemnification was improper considering that MRP is only payable once a service member has legally retired and the benefits have been approved for payment. MRP cannot be approved before legal retirement.

What Does “Disposable Retired Pay” Mean?

Disposable retired pay is defined as the monthly payment that a retired military member is entitled to. The interest of a service member in military pension is “neither vested nor mature until the member retires and benefits are approved”. Retired service members must apply to receive approval for retirement benefits.

In a nutshell, while state laws can divide disposable retired pay, they do not have the right to order MRP-based payments before the actual retirement of a service member. This is because service members are entitled to MRP only when they retire and get approved for the benefits.

If you have questions about military pension and how it may be treated in the event of a divorce, visit us at https://tiffanyfinalaw.com/scottsdale-divorce-lawyer/ to schedule a consultation with our team.

Tiffany Fina Law Firm

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Scottsdale, AZ 85251

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