One of the great parts of being a Texan is that we can have so many veterans in our communities. These brave men and women have sacrificed for the good of our nation, and the rest of us are forever grateful as a result. One of the things that makes me proud to be an American is that our men and women in uniform do their jobs and ask so little in return. In an age where we face a myriad of threats to our country, our military does a spectacular job of keeping us safe.
Unfortunately, one of the side-effects of being a member of our armed forces is that military members face unique challenges when attempting to hold down successful marriages and raise children. Deployment overseas for months at a time is perhaps the most well-known and formidable challenge, but there are challenges due to health (mental and physical) as well as strains on income, also. Many times, the spouses of military members cannot work due to the responsibilities that they have in raising the family in the absence of the soldier.
The difficult nature of their occupation plus the stresses that it puts on family and married life is a combination that many marriages cannot withstand. As a result, we see married persons in the military go through divorces at a seemingly greater rate than their non-military counterparts. There are so many aspects to any divorce case, but there are parts of a divorce case for military members that present unique issues to sort through and problems to solve.
One of those issues that need to be addressed is that of disability pay for veterans. If you or your spouse are a veteran with a certain percentage of military disability, then you are aware of how hard it was to get to the point where that service-connected disability was acknowledged by the Veteran’s Association. Because of how difficult it was for your impairments to be acknowledged as severe and disabling, you will undoubtedly want to make sure that this subject is handled correctly in your divorce.
Defining the critical aspects of a military disability divorce case
The Uniformed Services Former Spouses Protection Act (USFSPA) governs in situations that involve married persons, divorce and military disability pay. It is a federal statute that applies to persons getting divorced in any of the fifty states of our country. The purpose of these laws is to govern how the spouse of a service member will be paid retirement pay after the marriage has ended.
There are a couple of different kinds of disability pay that a service member may receive. The retirement pay that the USFSPA considers does not take into account military disability retired pay or VA disability compensation. This means that you as the former spouse of your military servicemember husband or wife can miss out on a lot of monthly income that could have been included in the retirement pay of your spouse had not this law not been in place.
The two types of disability payments that are available to servicemen and women will be discussed in the remainder of today's blog post. Additionally, we will go over how your ex-spouse's receipt of this kind of benefit can impact you in the years after your divorce has been finalized.
What is military disability retired pay?
Military disability retired pay is the first type of disability pay that is relevant to discuss when we are talking about military divorces. Military disability retired pay is available for service members that are disabled to the point where they are unable to perform their duties as assigned to them. What ends up happening to service members in this position is that they end up getting placed on the disability retired list as long as they have accumulated enough creditable service time. That service member is then able to start to draw disability retired pay.
Some of this can be confusing because the terminology is foreign to most of us who are not actively serving in the military or are at least very familiar with this type of terminology. Suppose that your husband is in the Marines and about a year ago he left your home in Houston for a new position in Germany. He told you that he was going to send for you about a year after his getting re-stationed in Germany. However, you have subsequently learned that your husband now has no intention of doing that as he has fallen in love with a German woman, who he intends to marry after divorcing you.
You subsequently filed for divorce in Texas and was granted the divorce that you sought. You stated in the court documents that you were abandoned by your spouse here in Texas, a point which your spouse did not attempt to counter in his answer or counterpetition for divorce. The judge awarded you 50% of your spouse’s disposable retired pay. What would happen if your spouse injures himself while in Germany and is found to be unable to return to work for the Marines?
Your spouse would likely apply for military disability from the Marines. Your spouse would be examined by doctors and be assigned a particular percentage disability rating. The result is that your spouse would stand to receive disability retired pay in an amount that is equal to his normal retired pay based on the number of years he served in the Marine Corps, or the amount of money that results from multiplying his base pay by his disability rating. If your spouse has a military base pay rate of $10,000 per month we would be looking at the following discussion:
First off, his normal retired pay would need to be calculated based on the number of years that he has served in the Marines. We can do this pretty simply by multiplying his active duty base pay by the number of years of service by 2.5%. That $10,000 monthly based rate by 20 years by .025 = $5,000.
Next, your husband’s base pay is multiplied by his disability rating. A forty percent disability rating would equal $4,000. Finally, once you have done these calculations, you would know that your spouse would stand to receive the higher of these two amounts as his military disability retired pay. $5,000 is greater than $4,000 (last time I checked, at least) so that would be the amount that he would stand to receive in military disability retired pay.
Under the USFSPA, the amount of your husband’s military disability retirement pay that comes from multiplying his base pay times his disability rating is not going to be divisible in your divorce. In your case, $5,000 of the military disability retirement pay is not going to be eligible to be divided under the community property laws of Texas. The difference between the two numbers, $1,000, is what would be subject to division in this divorce. That would be $500 if split evenly either by you and your spouse in mediation or by the judge in a trial. You would lose out on 50% of the $4,000 that is left on the table.
VA Disability Pay
The other type of disability pay that a military member can expect to receive is disability compensation from the Department of Veteran’s Affairs. Take the above hypothetical example regarding your spouse in Germany and instead of his being injured, he is simply found to have likely committed adultery against you. This is potentially a serious offense in the military, so your spouse chooses to retire rather than go through the military legal process associated with an adultery charge.
With an active duty base pay rate of $10,000 per month and twenty years of active duty service, the normal retired pay would be the $5,000 per month that we laid out in the blog post section before this one. As part of your husband leaving the military, he has also applied for disability compensation through the VA, however. He has some back and neck issues that he has accumulated over his twenty years of service and wants that to be considered upon leaving active duty status.
Once he leaves the service, your attorney should send in a copy of the divorce decree from your Texas divorce to the military in order so that you can begin to receive your 50% share of his disposable retired pay. Half of that $5,000 in the prior paragraph would be yours under this order. If the application for disability benefits is also approved. What happens is that he would be approved for $500 in disability pay if he chooses to waive that same amount in retirement benefits.
The result is that your ex-spouse receives his disability and retirement pay- just in different formats. However, you would lose out on a portion of the benefits you were otherwise receiving. Instead of getting $2,500 on a monthly basis ($5,000/2) you would now receive $2,250 ($4,500/2). He receives a tax benefit for making this decision since VA disability pay is not taxed.
Unfortunately, what this choice also allows your spouse to do is hurt you in a way that has no real blowback potential for him. The USFSPA states that the retired pay that was waived by your spouse to be paid the disability benefit is not able to be divided by a divorce court in Texas. The result of this is that you are losing out on money.
Planning for military retirement/disability pay issues in a Texas divorce
Planning on the part of your attorney would have served you better than what was done in the example I listed above. Like anything else in life, experience matters. If you have an inexperienced family law attorney or one who just doesn't know their craft it can seriously hurt you. Throughout a lifetime, those hundreds of dollars you miss out on per month add up to something substantial in terms of a loss for you.
Your attorney could have pursued on your behalf a couple of different courses of action to protect you from losing out on the money after the reduction in the retired pay occurred due to the decision to waive that benefit and receive a like amount in disability pay by your spouse.
Your attorney could have negotiated with your husband’s attorney in a separate agreement that he would have made up the difference in retirement pay should he choose to waive the retirement pay and receive disability pay instead. That way he would be able to still get the tax benefit from that decision while not putting you in a worse position than you ought to have been in. A settlement agreement that allows you to receive a certain level of monthly income through military retirement and direct payment from an ex-spouse is valid in Texas.
The other method that could have been used to protect you and your ability to receive the retirement monies in full would have been to ask a family law judge to award you spousal maintenance for $250 per month. Based on the length of your marriage and his income, that would not have been an outlandish amount, especially if he were to get a job as a civilian. This could have made up the difference that you ultimately would lose out on.
The bottom line is that your attorney and you need to be on the same page as far as what is happening with military retirement pay and disability pay. Another key factor in hiring an attorney who has experience in family law and handling cases for military families. Without both of these elements being in place, you stand to lose out on money that can be substantial over just a few years.
Questions about military disability or retirement pay in a divorce? Contact the Law Office of Bryan Fagan
If you have any questions about your divorce circumstances, please feel free to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions and provide you with direct feedback about your case. These consultations are available six days a week here in our office. Thank you for choosing to spend part of your day with us here on our blog.