by Chris Barondeau , a divorce attorney with the Goosmann Law Firm in Sioux City, Iowa.
From the ABA Family Law Newsletter April, 2017.
How would you describe your marriage? If you are currently considering divorce, you might say “it’s complicated.” When one spouse is receiving military disability pay, you might think this makes the divorce process complicated as well. It can be difficult to understand how military disability pay factors into your divorce. However, by obtaining basic information about the division of disability pay, you may be able to eliminate the phrase “it’s complicated” from your divorce vocabulary.
Military Disability Pay: An Overview
There are two types of disability pay: military disability retired pay and VA disability compensation.
Military disability retired pay. If a military member is disabled, can no longer perform his or her duties, and has served 20 creditable years, he or she can be automatically placed on a “disability retired list” and receive retirement payments. Even if the military member has not served 20 years, he or she can be placed on the list if the disability is rated at 30 percent or higher by the U.S. Department of Defense.
VA disability compensation. If military members receive an injury as the result of their training and service, they can receive compensation payments from the U.S. Department of Veterans Affairs (VA). Military members do not have to be retired to receive VA disability compensation.
If the disabled service member is retired and meets certain conditions, he or she may be eligible to receive both types of compensation. However, if these conditions are not met, the member’s retirement pay may be reduced by the amount he or she receives as VA disability compensation.
Is Either Type of Disability Pay Divisible?
If the military member has started to receive retirement pay after he or she was placed on the disability retired list, it may be hard to determine whether the spouse can receive a portion of that pay. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA), “disposable retired pay” is divisible during divorce. However, the money the service member receives as a result of his or her disability is not considered “disposable retired pay,” and therefore it is not divisible. So what does this mean when it comes to military disability retired pay?
If the military member was eligible to receive retirement payments before he or she became disabled, the size of those payments will probably increase as a result of the disability. However, any extra funds received as a result of the disability will not be divisible. Therefore, only the amount of disposable retirement pay the military member would have received before the disability is divisible in the divorce.
Because VA disability compensation is paid as a direct result of the service members’ disability, VA disability compensation funds cannot be considered divisible in any circumstance. In addition, if the military member’s retirement pay is reduced because he or she accepts VA disability compensation, only the remaining retirement pay is divisible.
What This Means for Your Divorce
The military member’s spouse is not necessarily out of luck if the amount of divisible pay is reduced as a result of the military member’s disability. For example, the spouse could ask the court to order the military member to pay spousal support or to increase the size of the spousal support payments. Make sure to contact a military divorce attorney for additional information.
Your relationship may be “complicated,” but your divorce doesn’t necessarily have to be. Obtaining a basic understanding of the division of military disability pay and hiring an experienced military divorce attorney can help you eliminate the phrase “it’s complicated” from your divorce vocabulary.