Under the “Uniform Services Former Spouses’ Protection Act” (USFSPA), each state (including Kentucky) is allowed to treat “disposable retirement pay” as marital property according to each state’s law. How will military retirement property division occur in a Kentucky divorce?
Generally speaking, a former spouse may receive up to 50% (or an equitable portion) of a service member’s “disposable retirement pay”. “Disposable Retirement Pay” allows for deductions of the following from a retiree’s gross pay:
- Amounts the member owes to the United States related to receiving retired pay( e.g., recoupment of overpayments).
- Forfeitures ordered by a court-martial.
- That portion which is military disability retired pay under 10 USC Chapter 61. If you are wounded, you may be eligible for disability, which would often replace the retirement component of your long-term income. Disability, in effect, becomes retirement.
- That portion which is waived in favor of accepting Veterans’ Affairs disability pay.
- Premiums paid for Government life insurance or deductions to provide SBP annuity coverage in favor of a current or former spouse.
- Other amounts required by law to be deducted relating to a person’s entitlement to retirement pay (e.g., dual compensation restrictions).
- That portion which is waived in favor of accepting Combat-Related Special Compensation (CRSC) 10 USC §1413 (a).
How is a Military Pension Divided When Divorcing in California?
Kentucky Family Code requires the equitable division of marital property during a divorce. Retirement or pension contributions and appreciation from the date of marriage are considered marital property in our state, assuming there is no premarital agreement to the contrary. In military retirement property division cases, our Family Courts in Kentucky generally ensure that each spouse receives an equitable portion of the “disposable retired pay” earned by the service member from the Date of Marriage.
What is a “Survivor Benefit” for Divorcing Military Personnel?
Other than retirement, military personnel are often quite concerned about the “Survivor Benefit Program”. This is like providing life insurance on the service member to cover retirement payments until the death of the non-military spouse. The survivor benefit cost is deducted directly from the service person’s military retirement. The court will often require the spouse receiving that survivor benefit to pay for it out of their portion of the retirement.
If you get a divorce before the retirement of the service person, you must apply for the survivor benefit within one year of retirement, or you will not be able to get into that program. It is important to protect your spousal interest in the survivor benefit program and ensure that this is handled before your divorce.
Military retirement property division requires unique skills and knowledge of the application and nuances of military and civilian law. There are potential pitfalls that a civilian attorney may miss that can preclude you from achieving the best result for both parties.
My name is John Schmidt, and after more than 25 years of experience as a divorce and family law attorney based in Shepherdsville, I can tell you these cases require legal skill, knowledge, and attention to detail.
At the Law Offices of John Schmidt & Associates, we genuinely respect military families. We will work to make sure that your rights and interests are protected. There are long-term ramifications when a marriage comes to an end. This is complicated when one or both of the spouses are active or retired military personnel. There are substantial issues relating to child custody, the division of debts and assets, and military retirement property division that must be fully understood and taken into account.
We invite you to contact us via e-mail, schedule an appointment or call us today at (502) 509-1490 to get answers to your questions and to learn more about your unique circumstances and how to protect what is most important to you in your family law case.
