Practicing divorce law in Kitsap County area, I handle many cases involving current and retired military personnel and their spouses. I have represented both sides in cases involving military retirement and divorce.
An important area of military divorce is the U.S. Military retirement benefit. In almost all military divorces, it is something that needs to be addressed during settlement negotiations or trial. Military retirement benefits can be substantially valuable so it is important to discuss your case with someone who is experienced in this area.
The Federal Government has long provided military retirement benefits to those veterans who have retired from the Armed Forces after serving 20 years or more. It also provides disabled members of the Armed Forces with disability benefits.
In Washington State, a divorce court may treat military retirement pay as marital property subject to division. However, only ‘disposable retired pay’ may be divided by a divorce court. ‘Disposable retired pay’ is defined to exclude any retired pay that a disability retiree has waived in order to collect veterans disability benefits. In order to prevent double counting, however, federal law typically insists that, to receive disability benefits, a retired veteran must give up an equivalent amount of retirement pay. And, since retirement pay is taxable while disability benefits are not, the veteran often elects to waive retirement pay in order to receive disability benefits. Waiving retirement pay to receive disability benefits could reduce the amount a divorce court can divide. Previously, the timing of the veteran’s waiver was a factor in the court’s power to divide retirement pay meaning whether it occurred before or after the divorce was final.
A recent U.S. Supreme Court decision will have an impact on military retirement benefits. In Howell v. Howell, the Supreme Court ruled that a state court cannot offset the loss of a divorced spouse’s portion of a veteran’s retirement benefits when that veteran waives retirement pay in favor of disability pay. This ruling affects waivers occurring before or after a divorce.
Despite the ruling in Howell, a divorce court can still consider other factors to account for the loss or gain of military retirement benefit to one spouse or another. This is why it’s important to discuss your case with an experienced divorce attorney.
Contact Jeff Burleson for a consultation to discuss your military divorce. Jeff is a skilled divorce and family attorney serving Kitsap county and all surrounding communities. He also served in the U.S. military and has personal experience with military issues.
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