Common Mistakes in Handling Military Divorce Cases

divorce law and military law

divorce law and military lawNo divorce is easy, we all know at least one couple who has gone through this process. Even the most amicable divorces can quickly turn ugly once it is time to figure out who gets what. In the case of a military divorce, the process can be even more difficult and can take more time.

If you or your ex is a member of the military, you are going to need to find a lawyer who is well versed in handling this type of divorce case. Most divorce lawyers handle regular cases and may not have the experience necessary to give you the advice you need and represent you properly. Make sure you find representation with a proven track record of success in military cases.

Unlike a regular case, where the property is divided according to the state law, these cases have more requirements for sharing and the benefits process will be different. If you have children it is very important that you have a good lawyer who knows what they are doing to ensure that they get the proper benefits they deserve in the future.
Let’s take a look at what you need to know about a military divorce case.

Required Length of Time for Benefits 

If your spouse receives direct retirement payments, you may be eligible to receive half of them, but specific requirements must be met before distribution can begin. First, you and your spouse will need to have been married for at least ten years. Next, you or your spouse must have been an active duty member of the armed forces for those ten years as well.

If you were married for seven years, you would not qualify to receive half of their retirement benefits. Or, if you were married for twelve years, but you or your spouse was only on active duty for six of those years, you would also not be eligible.

Your lawyer will be able to advise you on other specific requirements that must be met in order to receive your portion of the automatic retirement benefits after your divorce is finalized.

 Understanding Marital Share

 When it comes to figuring out what share you or your spouse will have of pension benefits, there are three main ways. Net present value is used if one of the spouses prefers to have a direct buyout upfront and not receive regular payments.

Deferred distribution means that the amount of pension you are entitled to receive will be determined immediately, but the distribution will be delayed until the spouse in the military retires.

Lastly, there is reserve jurisdiction, which means that the amount the former spouse is entitled to will be determined upon retirement of the military member. This is the most common calculation that is used.

The amount that is decided upon needs to be accurately determined by your lawyer and will be subject to review. The length of time the marriage was valid will also be used to help determine if the share is considered to be fair and will be implemented.

 Survivor Benefits Plan

 divorce-decreeMost military members have a survivor benefits plan. This is designed to distribute money to beneficiaries upon the death of the military member. After a divorce, it is important to note that you may no longer be named as a survivor, and your children may not be named either.

It is absolutely vital, especially if you have children, to decide during the divorce process how the survivor benefits plan will be handled. If you do not go through this process, if the military member dies before you do, you will not receive any pension payments, despite the agreed upon amount that was determined at the divorce.


The survivor benefits plan is completely separate from the pension plan and is considered to be a type of annuity. Your lawyer will need to insert a clause into your divorce agreement to ensure that payments will not be stopped in the event of the military member’s demise.


As you can see there are many twists and turns that are inherent in a military family divorce. You need to make sure you have proper representation to ensure that everyone is taken care of. No one is ever happy about the divorce process but it doesn’t need to be complicated and confusing. With the right lawyer, you will know what your options are and they will be able to do everything in their power to ensure you get the benefits you are entitled to.



About the Author:

James M. Burns of the Law Office of James M. Burns has served clients in Florida and Alabama for nearly two decades and brings a wealth of experience and legal savvy to your side when you need a staunch supporter and smart legal representation.


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