If you or your spouse has a military pension and are going through a divorce, you’re probably learning just how complicated this niche of family law can be. To understand how military pensions are handled in a divorce, you’ll need some clarification on military retirement benefits in general, federal and state laws, and the methods used to determine: 1) whether the pension can be divided between the parties, 2) the calculation method used to value the pension, and 3) how, and to what extent, the Court might decide the parties’ shares of the pension.

Military Retirement Benefits

The vast majority of military personnel participate in one or both of two retirement benefits: the “Thrift Savings Plan” and “Military Retired Pay.”

The Thrift Savings Plan is the military version of a 401k: personnel can contribute to the account (which the government matches to some extent, depending on the type of account “fund”), contributions typically are tax-deferred, and can be withdrawn without penalty when the participant reaches the age of 59 ½. This benefit is not a “pension” and is not the subject of this article.

Military Retired Pay functions like a pension. The most common is the “High 36” program. A participant must typically serve in the military for 20 years, at which point, he or she can begin drawing a percentage (usually 50 percent after 20 years of service and 100 percent at 40 years) of the average of his or her base income for the 36 months of highest active duty pay. In other words, when a military member retires, he or she receives pension payments in perpetuity, which are based on their highest pay rate, and which can equal their enlisted pay, depending on years of service.

Federal And State Law On Divisibility Of Military Pensions

Now to the first important question: Can your military pension be divided?

Initially, the U.S. Supreme Court ruled that federal law prevented state courts from dividing military pensions in divorce cases. However, Congress enacted the Uniformed Services Former Spouses’ Protection Act (“USFSPA”) in 1982 – a law allowing states to make these divisions. The law doesn’t entitle a spouse to his or her partner’s pension, it only grants state courts the authority to divide pensions, if they choose to do so.

Most states have determined that military pensions are divisible according to their laws, including North Dakota, and Minnesota. USFSPA does not allow a court to grant a spouse more than 50 percent of the military spouse’s total pension benefit (but doesn’t prevent courts from granting more than 50 percent of the marital portion of the pension – the amount of the pension earned during the parties’ marriage, as long as that portion doesn’t exceed 50 percent of the total pension).

However, even though military pensions are divisible in divorce, there is an important restriction on the “mechanism” of the division. This just means that in some cases the federal government can be forced to make the division and in some cases, only the military spouse can be forced to make the division (more on this topic). The defining factor is how many years of overlap exist between the military spouse’s service and the parties’ marriage. If there are 10 or more years of overlap (the military spouse served in the armed forces for 10 years while the parties were married), then the federal government can be forced to divide the pension (the government will send a portion of the pension funds directly to the non-military spouse). If not, then only the spouse can be forced to make the division (the government will send all the funds to the military spouse who then must remit a portion of the funds to the non-military spouse privately).

Calculation

Each state has its own method of calculating the value of the military pension and determining which percentage of the pension should go to each spouse. In North Dakota, courts make an “equitable” or “fair” division of all property in a divorce, including pensions. Equitable does not always mean “equal.”

The court will determine the value of all the parties’ property, including assets brought into the marriage by each, and then divide the pension by considering, what’s known as, the “Ruff-Fischer” factors:

1. The respective ages of the parties
2. Their earning ability
3. The duration of the marriage and conduct of the parties during the marriage
4. Their station in life
5. The circumstances and necessities of each
6. Their health and physical condition
7. Their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage and such other matters as may be material

Typically, the court will only divide the “marital” portion of the pension (the value of the pension earned during the marriage). To derive this number, courts in North Dakota use the following equation (known as the “Bullock formula”):

The total value of the pension multiplied by the number of years of the marriage during which the pension was earned, divided by the number of total years in earning the pension, multiplied by the percentage to the non-military spouse.

For example, if the value of the pension is $100,000, the parties were married for 10 years, the military spouse was serving in the military for 20 years, and the non-military spouse was awarded 50 percent of the pension then:

$100,000 x (10 / 20) x .5 = $25,000

(The non-military spouse would receive $25,000 of the pension)

Distribution Method

There are two methods used in North Dakota for distributing a pension:

1. Divide the asset at the time of the divorce. This is a bit of a misnomer; a military pension cannot be divided outright. Instead, an actuary or other financial professionals will calculate the value of the pension to a certain dollar amount, and the court will make the military spouse pay that sum to the other spouse from other funds. Let’s say the marital portion of the pension is $100,000, and the court awards 50 percent to each spouse. The military spouse will have to give the other spouse $50,000 worth of funds or other assets or assume responsibility for $50,000 more marital debt than the other spouse, to “pay” this amount.

2. Divide the asset at the time of distribution. Under this method, the non-military spouse will receive his or her portion of the military spouse’s pension payments each month when the military spouse begins receiving the pension. In North Dakota, the court will use the Bullock formula for this method as well, but instead of dividing the entire pension, it will divide each pension payment.

Which method the court will use depends on whether the value of the pension can be accurately calculated at the present time, and whether the parties have sufficient funds/debts to shuffle around to make an equalizing payment/offset.

Conclusion

Military pensions in divorces are complex. Determining the value of the pension and how the pension will be divided is best left to professionals. If you have a military pension and divorce issue, contact an experienced attorney. Call our Family Law Team at 701-297-2890 or email us at info@swlattorneys.com if we could be of assistance to you with this, or other family law matters.

The information contained in this article and on this website is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to your particular set of facts.

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