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The dissolution of a marriage can be an excruciating and exhausting process. Unfortunately, with the rate of divorce in New York being at least 8.8% in 2023, according to the World Population Review, this is a reality many couples will have to face.
However, before a New York judge grants a divorce decree, many questions need to be answered regarding the splitting of marital property. When married to an active-duty or retired military member, the situation becomes even more complicated.
That is why every military spouse contemplating a divorce needs to consider hiring an attorney to fight for their rights and ensure they receive the benefits they are entitled to from their former spouse.
In New York, Divorce & Family Legal is one of the top law firms with many years of experience handling military divorce proceedings. We can advise on questions like how long do you have to be married to get 401k in divorce in NY? Call today to set up a free consultation.
Are Military Pension Benefits Considered Marital Property?
The first step when divorcing military service members is to understand which assets, incomes, or other benefits can be considered marital property. It is not just a matter of dividing everything in half and calling it a day.
In New York, the law states that military pension benefits may be considered shared marital property. This means the service member will have to divide military retired pay and give their former spouse what they are entitled to.
The law also says any property obtained before the marriage or after the divorce proceedings should be regarded as separate property and may not be included in any divorce benefits calculations.
If the military member also received gifts or an inheritance in their name during the marriage, this will also be considered separate property.
An important point to note is that in 2017, Federal law was amended regarding how military retirement benefits are distributed in all 50 states.
In summary, the alteration states that retirement pay will be locked in time at the time of the separation, annulment, or divorce date. For more information, divorce lawyers may be able to help.
What this means is if, for example, a military spouse divorces a service member who is a Sergeant at that time but is later promoted to a Master Sergeant, they will only be entitled to the retirement pay of the lower rank.
Two Rules Defined by Federal Law
Regarding the Federal law on how to divide military pension benefits, there seems to be some confusion due to the adoption of two important rules.
Both the 20/20/20 rule and the 10/10 rule need to be fully understood before signing the divorce papers. The difference between these two rules can be highlighted as follows:
The 20/20/20 Rule
In a nutshell, the 20/20/20 rule defines the criteria that need to be met when asking, "How long do you have to be married to get military benefits after divorce in NY?" The answer to this is 20 years, and can be broken down as follows:
The couple needs to have been married for 20 years
The service member must achieve at least 20 years of service
There has to be an overlap between the 20 years of service and the 20 years of marriage
Provided that the military spouse meets these criteria and that they do not remarry, they will be entitled to their former spouse's benefits for the rest of their lives. Our team can answer other questions such as how long does it take to get 401k after divorce in NY?
These benefits include Tricare benefits (health benefits for service members and their family members) and retainment of their military ID cards that give them access to base commissaries and military exchanges.
The 10/10 Rule
In its simplest format, the 10/10 rule states that if a marriage lasted at least 10 years and the active or retired service member served for 10 years, the military spouse is entitled to retired pay that comes directly from the Defense Finance and Accounting Service (DFAS).
It is important to understand that this rule is not a direct contradiction of the 20/20/20 rule. Rather, it simply addresses the source of the payments, in this case, the DFAS.
State Laws Affecting the Former Spouse
There are some important differences when it comes to how different states handle the division of military service benefits. In some states, for example, an equal division of all marital property is the norm, whereas, in other states, only a part of the pension earned during the marriage can be divided between the former spouses.
As such, it is important to carefully determine which state court has jurisdiction, which is not always an easy task, so a deep understanding of Federal law will be required.
Child Support and Apportionment
When dividing marital property, it is important not to overlook child support obligations. The courts will need to make sure that any children from the marriage are taken care of, which is why child support payments will need to be calculated.
In cases where the spouse with child custody can demonstrate direct financial need, the court may allow apportionment of the military pension benefits. This will mean a portion of these benefits will be directed to the spouse taking care of the children.
Common Issues When Divorcing a Service Member
There are some common issues that the non-military spouse needs to be aware of, such as the Service Members Civil Relief Act. It was designed to protect military service members from getting divorced and going through an asset division process while they are serving overseas.
This Act states that active duty members can delay their divorce proceeding until two months after they complete their tour of duty. However, they can choose to waive those rights and allow the divorce to continue.
Need Help With the Dissolution of a Marriage in New York? Call Divorce & Family Legal
Wondering whether the non-military spouse has access to a service member's employer-sponsored health plan? What about the rules of the Uniformed Services Former Spouse Protection Act? Signing divorce papers can be risky without first getting the answers to these and other questions.
In Albany, New York, Divorce & Family Legal is ready to assist. With a good lawyer handling the divorce process, a non-military spouse can walk away with the portion of the military pension they are entitled to after years of marriage. Book a free consultation with Albany's top-rated divorce lawyers today.