Divorcing your husband doesn't mean you'll forfeit rights to his military retirement pension that you may be entitled to receive. As part of the divorce process, courts routinely divide all marital assets between spouses. This is typically the property acquired during the marriage, except for gifts or inheritances received by one spouse only. If a spouse earned some, or all, of his military retirement benefits during the marriage, the court will treat these funds as marital property. However, the amount of your share will depend on whether you live in a community property or equitable distribution state.
Community Property versus Equitable Distribution
The Uniformed Services Former Spouse Protection Act permits states to divide military retirement pay between divorcing spouses in accordance with state law. Most states, like New York and Florida, divide marital property according to the equitable distribution method. If you live in one of these states, the judge will divide the portion of your husband's military pension earned during the marriage in a manner that is fair and just after considering several factors, such as the length of the marriage and the income of both spouses. As a result, you may end up with an uneven split of the value of the fund. However, if you live in one of the handful of states that follows the community property distribution method, such as California and New Mexico, the court will divide the pension equally. Divorce courts also have the option of keeping the pension intact and giving you other property equivalent to the amount of the pension to which you're entitled, instead. For example, if your husband earned $40,000 of his $100,000 pension during the marriage and the court determines that you are entitled to half of the $40,000, it can give you other marital property valued at $20,000 instead of physically splitting the pension.