March 18, 2019

March 18, 2019

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Family Law: Military Divorce Retirement, Pension Rules Change

In the year 2017, the National Defense Authorization Act underwent a revision concerning the way in which pension of military personnel is divided in the case of a divorce between the spouses. While previously, it was thought to be the decision of the State under the USFSPA enacted in 1982, now Congress has come up with a single, “one-size-fits-all” method that will be applicable to all military personnel.

Frozen Benefit Rule – Military Divorce and Retirement Pension

This particular law is to be employed by all the states across the United States. This revision was enacted as a response to the suggestion given by Representative Steve Russell back in April 2016. The law (NDAA 17) which is now referred to as the “frozen benefit rule”, is thought to benefit military personnel significantly when going through a divorce.

The law affects all members of the service which means it will apply to Marine Corps, Army, Coast Guard, National Oceanic and Atmospheric Administration, Air Force, Public Health Service’s Commissioned Corps, and the Navy. Service members that go through a divorce after they have retired do not get the same benefits, and the law is not applicable in their case unless the divorce occurs in the five states that already use the “frozen benefit rule” (Tennessee, Kentucky, Texas, Oklahoma, and Florida). The law remains the same regardless of the settlements between the husband and the wife as it has no exceptions.

Military Retirement Pension Rules Change

The Time Rule that was previously used under the same circumstances will no longer be relevant as the spouse’s share is now determined as being constant or fixed. The law, which is not entirely a new introduction to the legal world, is a rewritten form of the Uniformed Services Former Spouses’ Protection Act (USFSPA). Under this new law, the service member’s rank and the number of years spent active are thought to be frozen at the time of divorce.

Thus, if the service member receives a higher rank in the future, it will only be discounted as per the marital fraction (in ninety percent of the states) which takes into account the benefit that resulted from the years of marriage. This will be done by dividing the pension based on the years of marriage by the entire length of the service. However, this also reflects that the payment to the former spouse will undergo a postponement as to determine when the service member decided to retire.

The law that came into effect from December 23rd, 2016, required adjustments to be made to the cases that were yet to be presented before the State. With this new law in place, the military pension division will be done in a uniform manner requiring all the states to abandon their earlier rules applicable to the matter of marital division of the military pension.

There is a significantly different approach used in some of the states, thereby, making the practice of this law to be a challenge for the legal representatives involved. Therefore, in the opinion of the American Bar Association, the decision to fix the legislation should have been reversed by the Congress as the previous method was deemed to be fairer and just.

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About this Author

Jaliz Maldonado, Practice Panther Miami Legal Marketing and Law Office Management author

Jaliz Maldonado is an eight-year Army Veteran and is currently in graduate school at the University of Miami where she is studying for her MBA. When she's not working at PracticePanther as the Operations Manager or studying, she's hanging out with her English Bulldog named Dumbell, painting, or reading. Jaliz is also strong with the force and belongs to House Slytherin. Make sure to connect with her via Linkedin and follow her on twitter @JalizMaldonado.

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