For military members and their spouses, one of the most important questions that confronts them in their marital separation and divorce case is how the military member’s Disposable Retired Pay (DRP) will be addressed by the Court in the divorce.
The simple answer is that, to the extent that a servicemember’s “creditable service” was earned during the marriage and before the spouses finally separated, the military retirement is considered to be a “marital asset” under Virginia’s divorce law. Any creditable service that was earned before the marriage or after the date that the spouses finally separated is considered to be part of the “separate” component of the military retirement and not subject to division by the Virginia Court in the divorce. To the extent that the DRP is “marital”, it is subject to division between the spouses in the divorce.
The most typical method for segregating the “marital” portion from the “separate” portion is by way of a fraction, which yields a percentage of the military retirement that is considered marital and therefore subject to apportionment between the spouses. The numerator of this fraction is the number of months of creditable service earned during the marriage (or in the case of reservists, the number of reserve points). The denominator of the fraction is the total number of months of creditable service earned at the time of retirement (or the number of reserve points).
The percentage yielded by this fraction is then multiplied by the service member’ final DRP, if the service member is already retired at the time of the parties’ separation or divorce.
However, another method, know as a “hypothetical award,” was mandated for use with non-retired, active service members by the National Defense Authorization Act of 2017. It employs a technique of “freezing” the servicemember’s rank and pay grade at a certain point in time.
What share of the marital portion of the DRP is awarded to the former spouse of the servicemember is subject to the Court’s determination under the same statute that applies to all other marital assets in Virginia divorce cases. That is, the Court is required to consider a number of “factors,” including but not limited to the duration of the marriage, the contributions of each spouse to the well being of the family, the circumstances that contributed to the dissolution of the marriage, and other factors under Section 20-107.3 of the Virginia Code. There is no set rule or presumption that requires the Court to award the former spouse 50% of the marital share of the servicemember’s DRP. However, there is a special provision of Virginia’s divorce law that “caps” the Court’s award of the DRP to the former spouse at 50% of the marital share. That is, the Court can award no more that 50% of the marital portion of the DRP to the former spouse, but it does not have to award the maximum.
While the overall apprach to the division of military retired pay in Virginia divorces may sound simple in some respects, it is far from simple. There are many intricacies in addressing the division of military retired pay under Virginia’s divorce law, and it is vitally important to have the assistance of a knowledgeable Virginia attorney on your side when addressing these issues in your divorce or marital separation.
