Military Divorce and Retirement Benefits
Former spouses of military service members may be eligible for a portion of the service member’s military retirement (pension) pay, but only if certain conditions are met.
Military retirement and divorce can present complicated questions, and the answers will depend entirely on how military code, federal laws, and state laws come together. For anyone married and who resides in New Mexico or is stationed in New Mexico for at least six months, New Mexico state law can affect the conditions of their divorce decree. Under New Mexico law, any military retirement pay accrued during the marriage may be considered community property. This means that divorcing military couples should address the matter of retirement pay as part of the divorce decree.
New Mexico Financial & Family Law can assist service members and/or spouses of service members in all military retirement divorce matters. As experienced divorce lawyers for retired military, we understand how the law might affect your specific case — and all the exceptions that might apply. Sorting through the laws and your legal options can be confusing, which is why we aim to make it clearer.
Our divorce lawyers for retired military, current military, and military spouses can provide you with guidance and legal representation during your divorce. Schedule a no-obligation case review to learn more about your rights and what options you have available. Call (505) 503-1637 or contact us online to schedule your appointment now.
New Mexico Military Retirement Divorce Law Only Applies If You Have Residence
It is important to understand that not every state has the same laws regarding military retirement and divorce that New Mexico does. New Mexico considers any retirement pay accrued during the marriage community property, whereas other states might not, or they might have added restrictions.
Military spouses seeking a divorce should first be ready to establish that they have a residence in the state of New Mexico prior to their divorce. New Mexico residence for military couples can be established using any of the following rules:
- The military member’s spouse was stationed continuously in New Mexico for at least the past six months prior to filing.
- The non-military spouse currently resides in New Mexico and has done so for at least six consecutive months prior to filing.
- Either spouse resided in New Mexico for at least six months immediately preceding the military member enlisting or moving to active duty, and once the military spouse is no longer stationed they intend to reside in New Mexico.
If these conditions cannot be met, then the state will not have jurisdiction over your divorce case, and you will have to file in a different state’s district court.
Retired Military Divorced Spouse Benefits Only Available to Couples Who Meet 20/20/20 Rules
In order for a military service member spouse to be eligible to receive a portion of the service member’s retirement benefits, the couple must satisfy the following conditions, often referred to as the “20/20/20 rule“:
- The couple must have been married at least 20 years
- The service member must have served for at least 20 years
- At least 20 years of service has to overlap with 20 years of marriage
If these conditions are met, the non-service member spouse may be eligible to receive half of the retirement benefits that accrued during the period of marriage.
The Uniformed Services Former Spouses’ Protection Act (USFSPA)
The Uniformed Services Former Spouses’ Protection Act (USFSPA) requires that all property matters be settled during the divorce decree. Any property divided that falls under the jurisdiction of the act will be distributed to the former spouse by the USFSPA. Retirement pay awarded to the former spouse will be distributed once the service member becomes eligible to receive it.
Importantly, the USFSPA does not apply when the benefits were not awarded as part of the divorce decree.
Further, the property will only be divided under the USFSPA if the couple meets the 10/10/10 rule. This rule states that the couple must have been married for at least 10 years, and during that marriage, the service member must have performed at least 10 years of service creditable towards retirement eligibility. While the 20/20/20 rule supersedes this time limit when it comes to retirement benefits, couples that meet the 10/10/10 rule may still have other eligible community property.
Reserve Jurisdiction vs. Net Value
Most military retirement divorce cases will calculate divorced spouse benefits according to a “reserve jurisdiction” process. This basically means that the awarded benefits will be calculated once the service member becomes eligible for retirement.
It is possible that a couple will instead decide to award the “net value” of the retirement benefits at the time of divorce. This means that the value of the retirement awards will be calculated now and issued to the military service member’s former spouse at the time of the divorce. This can be referred to as a “buyout” of the retirement benefits, which the military spouse can then collect in full once they retire.
Talk to Divorce Lawyers for Retired Military
Veterans, retired military, active duty, and their spouses: all may need questions answered or clarity given to the often-complicated military retirement divorce rules. New Mexico Financial & Family Law is here to provide assistance when you need it, and we are ready to represent you and help you seek the best outcome possible.
Schedule a risk-free, no-obligation consultation with us now when you call (505) 503-1637 or contact us online.