Navigating a military divorce in Georgia can be complex, especially when it comes to dividing military retirement benefits. It’s crucial for both military members and their spouses to understand how military pensions are treated as marital property and what the law says about equitable division.
This article breaks down the key aspects of military retirement pay and divorce in Georgia. We share insights into federal and state laws, the role of the Uniformed Services Former Spouses’ Protection Act (USFSPA), and what spouses need to know about their rights. Whether you're a military member or a civilian spouse of one, this guide will help you understand your options and prepare for the challenges ahead.
Military divorces differ from civilian ones due to unique legal considerations such as federal laws governing military pensions and benefits. In Georgia, state courts handle divorce proceedings, but federal law plays a significant role in dividing military retirement benefits.
Under the federal Uniformed Services Former Spouses’ Protection Act (USFSPA), state courts have the authority to consider military retirement pay as the couple’s marital property. This means it can be subject to division during a divorce.
Additionally, issues like residency requirements and duty station relocations can complicate matters. For example, one spouse may reside in Georgia while the other is stationed elsewhere, raising questions about jurisdiction.
To divide retirement assets in a military divorce, it is crucial to ensure that the state court has proper jurisdiction over the case's subject matter. For a Georgia court to have jurisdiction over asset division, the servicemember must either reside in Georgia, be legally domiciled in the state, or voluntarily consent to Georgia's jurisdiction.
The division of retirement pensions in a military divorce is restricted to non-disability benefits, as many former servicemembers receive compensation for disabilities.
Consulting an experienced lawyer is essential to explore the best options tailored to your circumstances.
The Servicemembers Civil Relief Act (SCRA) provides active-duty military personnel the ability to delay civil court proceedings, such as divorce, if their active duty prevents them from attending.
However, the process of dividing military retirement pensions during a divorce can present additional complexities.
In Georgia, divorce cases often involve the equitable distribution of marital property, which includes assets accumulated during the course of the marriage.
The Uniformed Services Former Spouses’ Protection Act (USFSPA) lets state courts divide military retirement benefits as part of a divorce or legal separation.
The USFSPA is a federal law covering how military retirement pay should be divided upon divorce. It gives state courts the discretion to count military pensions as marital property and divide them accordingly. However, it does not automatically grant a former spouse a share of the pension; this must be determined through state court proceedings.
The USFSPA also outlines eligibility requirements for direct payments from the Defense Finance and Accounting Service (DFAS). For instance, if the marriage lasted at least 10 years overlapping with 10 years of military service, DFAS can make direct payments to the former spouse. If the marriage does not meet this eligibility, the non-military spouse would have to personally collect post-divorce retirement benefits from their ex-spouse instead of receiving it from the DFAS.
Military retirement benefits are often considered marital property under Georgia divorce law if they were earned during the marriage. This means that the portion of the pension accrued during the marriage is subject to equitable division between spouses.
Georgia courts use an "equitable" approach rather than a "community property" system, meaning that assets are divided fairly but not necessarily equally.
Equitable division means that marital property is divided fairly based on several factors rather than split 50/50. In Georgia, these factors include:
For military divorces, equitable division often includes dividing military retirement benefits alongside other marital assets like homes or savings accounts.
Under the USFSPA, a former spouse cannot receive more than 50% of a military member’s disposable retired pay. However, this limit increases to 65% if garnishments for alimony or child support are involved.
Military pensions can be divided using various methods such as assigning a flat dollar amount, a flat percentage, or a hypothetical division, which assumes the servicemember retired on the date of the divorce. An experienced attorney can guide you in selecting the most suitable approach for dividing retirement assets during your divorce.
Flat dollar amounts can be awarded through either a court order or an agreement mutually decided by both parties. A flat percentage is often applied when the servicemember has already retired, simplifying the calculation of how much military service occurred during the marriage.
Other methods, such as deferred division and present-value offset, may also be considered. Deferred division allows the servicemember to provide payments from their pension once it is received. Present-value offset enables other assets, like personal property, to be exchanged for the value of the retirement pension. Each division method has its own advantages and drawbacks.
Consulting with an attorney is essential to help you navigate the complexities of military divorces, understand applicable laws, and ensure a fair division of assets.
Courts will consider several factors when dividing military retirement pay:
These factors help ensure a fair distribution that aligns with Georgia's equitable division principles.
The length of marriage plays a crucial role in determining how much of a military pension is considered marital property. If the marriage lasted at least 10 years and overlapped with at least 10 years of active-duty service, the former spouse may be entitled to direct payments from DFAS under USFSPA guidelines.
For shorter marriages, courts may still divide military pensions, but payments must go through the service member rather than DFAS.
If a marriage lasted less than ten years overlapping with active-duty service, DFAS will not make direct payments to the former spouse. However, this does not mean that the non-military spouse loses their share of the pension; they may still be entitled to receive payments through other arrangements outlined in the divorce decree.
It's essential for non-military spouses to work with a lawyer who understands how to secure their share of retirement pay even when direct DFAS payments are not an option.
In addition to retirement pay, other benefits like commissary privileges and healthcare may be affected by divorce:
Military divorces involve intricate legal issues that require specialized knowledge of both federal and state laws. An experienced family law attorney can help you:
Attorney Sharon Jackson has extensive experience handling military divorces in Georgia and can provide personalized guidance for your specific circumstances and goals.
Whether you're a military member or a spouse going through a divorce in Georgia, understanding your rights and options is vital for securing your financial future. At the law office of Attorney Sharon Jackson, we understand the unique challenges that come with dividing military retirement benefits and other marital assets.
With over 20 years of experience in family law and military divorce cases, we provide personalized, compassionate guidance tailored to your needs.
Let us help you protect your rights and secure your financial future. Call us today at (678) 909-4100 or visit our office in Lawrenceville, GA, to schedule a confidential consultation.
Attorney Sharon Jackson LLC
175 Langley Drive, Suite A1
Lawrenceville, GA 30046
Phone: (678) 909-4100
