Dividing assets during a divorce can be complex, especially when one or both spouses have served in the military. One of the most significant assets that may be on the table is a military pension. While some people believe these benefits are protected from division, the truth is more complicated. If you or your spouse is a service member and you’re about to get a divorce, read on and reach out to a Rochester divorce lawyer from Lacy Katzen LLP to learn how military pensions are typically divided. Here are some of the questions you may have:
Is a Military Pension Considered Marital Property in New York?
Yes, in most cases, military pensions are treated as marital property. This means they can be divided between spouses during a divorce, even if only one spouse served in the military. The key factor is whether the service, and thus the earning of the pension, occurred during the marriage. If it did, at least a portion of the pension will likely be subject to equitable distribution.
New York follows the principle of equitable distribution, which doesn’t always mean a 50/50 split. Instead, the court looks at a variety of factors to determine what is fair. These may include the length of the marriage, the income and property of each spouse, their age and health, and whether one spouse supported the other’s military career through sacrifices such as relocation or pausing their own career.
How Do Courts Actually Divide a Military Pension?
Dividing a military pension involves a few technical steps. Often, the Majauskas formula is used in New York to calculate the non-military spouse’s share. This formula takes into account how many years of military service occurred during the marriage compared to the total years of service. That proportion is then multiplied by half, which becomes the share for the non-military spouse.
For example, if a service member was married for 10 of their 20 years of military service, the spouse may be entitled to 25% of the pension (10/20 = 0.5; then 0.5 × 0.5 = 0.25). However, this is just a guideline, and the court may deviate from it depending on the circumstances.
In some situations, the parties may negotiate a different arrangement. The spouse may accept other assets in exchange for giving up their share of the pension, or both may agree to a lump sum payout.
What About the 10/10 Rule?
Many people have heard of the “10/10 Rule” and assume it affects whether a military pension can be divided. In reality, it has nothing to do with entitlement; it only determines how the payments are made. If the couple was married for at least 10 years and the service member served for at least 10 years of creditable military service during the marriage, then the Defense Finance and Accounting Service (DFAS) will send the non-military spouse’s share of the pension directly.
If the marriage doesn’t meet the 10/10 threshold, the pension can still be divided, but the payments must come from the military spouse rather than DFAS. This is a critical distinction, especially when it comes to enforcement.
To learn more, or if you’re about to go through the divorce process, please don’t hesitate to contact Lacy Katzen LLP for assistance.
