North Carolina Statute for a Divorced Spouse's Entitlement to a Military Pension
By Heather Frances J.D.
Your divorce decree will divide many different types of property – real estate, personal property and money. If your ex-spouse is in the military or retired from the military, the court has the option to give you a share of his military pension. While you don’t automatically get a certain share of the pension, North Carolina courts must distribute a military pension in the same way they distribute other types of property.
The Uniformed Services Former Spouses Protection Act, a federal law that was passed in 1982, gives states the authority to divide military disposable retired pay in the same way the courts may divide other marital property, up to a maximum of 50 percent unless there are alimony or child support orders against the service member. Disposable retired pay is the retired service member's total monthly pay minus Survivor Benefit Plan premiums, medical and disability benefits, Combat-Related Special Compensation, money owed to the government, fines and forfeitures. USFSPA also gives rights in certain military benefits, such as health care, to some ex-spouses of service members.
North Carolina divides marital property equitably between spouses as directed by the North Carolina General Statutes, Sections 50-20 and 50-21. North Carolina specifically includes military pensions as marital property to be divided by the court during divorce. Typically, courts distribute marital property equally except in cases where an equal distribution would be unfair to one party. The court can divide the pension by stating in the divorce decree that a certain portion must be paid to you once your ex-spouse retires and begins receiving his pension. If your ex-spouse is already retired, you would begin receiving payments as soon as your divorce is final. In the alternative, the court can determine a present fair market value of the military pension and use that value as a set-off against other property you will receive. In this way, you receive more of the non-pension property but no rights to the pension.
Your share of the pension can be paid directly to you by your ex-spouse, but it can be logistically difficult to collect the money if your ex-spouse does not cooperate. USFSPA allows some ex-spouses to receive direct payments of their portion of the military pension from Defense Finance and Accounting Service, as long as there is a court order requiring payment and not just a separation agreement. For direct payment, the marriage must have lasted for at least 10 years. Some states allow payments to be made while a service member is still on active duty, but North Carolina does not allow this.
Survivor Benefit Plan
When your ex-spouse dies, his retirement benefits, including his pension payments, will end. However, at the time he retires, your ex-spouse can elect to participate in the Survivor Benefit Plan. This plan provides continued partial pension payments even after your ex-spouse dies, but your ex-spouse must make payments to the plan every month while he is living. A North Carolina court can order your ex-spouse to participate in the plan.
- North Carolina Legal Assistance for Military Personnel: Myths and Mistakes in Military Divorces
- North Carolina Legal Assistance for Military Personnel: Practical Aspects of Equitable Distribution
- North Carolina Legal Assistance for Military Personnel: Uniformed Services Former Spouses Protection Act
- North Carolina General Assembly: North Carolina General Statutes: 50-20
Heather Frances has been writing professionally since 2005. Her work has been published in law reviews, local newspapers and online. Frances holds a Bachelor of Arts in social studies education from the University of Wyoming and a Juris Doctor from Baylor University Law School.