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Ask the Lawyer: How pay and benefits are divided in divorce

Q. I got divorced in 2001 after 15 years of marriage. My ex remarried and is better off than I am financially. I am looking to retire in a few months and have been told my ex will get 35 percent of my pension. Is that possible even if she remarried?

A. Yes, thanks to the Uniformed Services Former Spouses’ Protection Act, one of the more controversial laws affecting pay and entitlements of military retirees.

Before the 1980s, wives of officers were discouraged from working so that they could focus on supporting their spouses’ careers. In response to an adverse Supreme Court decision to a former spouse, the USFSPA was enacted in 1982. It allows states to divide military disposable retired pay as marital property. It also allows some former spouses to be awarded a share of disposable retired pay by direct payment from the Defense Finance and Accounting Service through a court order.

USFSPA does not require or mandate such division; it simply allows state courts to do so.

Unlike many military and Veterans Affairs Department entitlements that stop at remarriage, the USFSPA has no limit on remarriage and allows the state court order for divorce to control this topic.

I recommend that anyone with more than 10 years in the military who is facing a divorce consult with an attorney who knows USFSPA, because certain types of payments are exempt from the act.

Q. I am a retired Marine officer with a VA disability rating of 50 percent. I thought my VA entitlements could not be used in calculating my child support obligations. Can they?

A. Yes. Most states calculate your income differently from the IRS for child support purposes. If you’re earning income by betting on ponies, working off the books or even through the receipt of VA disability benefits, you generally need to report all of that income. The court will adjust the child support obligation accordingly.

Q. Can my ex-wife get my disability pay divided under USFSPA?

A. Military disability retirement pay and disability compensation benefits paid by VA generally are not applicable to USFSPA.

Remember, these short answers could easily change depending on the facts of a specific situation. You should work with your legal assistance office and attorneys who know these areas of law.

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Mathew B. Tully is the founding partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail him at askthelawyer@militarytimes.com. This column is not intended as legal advice.