Dividing Military Retirement and Electing Disability Pay: Protecting Non-Military Spouses
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Family Law
- event Date
Thursday, January 26, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will discuss how to divide military pensions when the military retiree elects to receive disability pay. The panel will explain why such an election might have tax benefits to the electing spouse and how this election affects the non-military spouse. The panel will offer strategies for anticipating and offsetting a future election to receive disability long after the final divorce decree.
Mr. Hilscher regularly serves as an expert co-counsel on military divorce cases and military pension division, assisting attorneys nationwide in drafting military pension division orders and consulting on military divorce issues. He is the chair of the military committee of the ABA family law section, and an appointed member of the ABA Standing Committee on Legal Assistance for Military Personnel, and a fellow in the American Academy of Matrimonial Lawyers (AAML). Mr. Hilscher is a board-certified specialist in family law, certified parenting coordinator, and family financial mediator practicing with Sullivan & Hilscher Family Law in Raleigh, NC. He regularly speaks at CLE presentations on military family law, and is the author of several publications on the military family law.
Ms. Laubach practice focuses on family law, probate, estate planning and military law matters. She previously served on active duty with the United States Army Judge Advocate General's Corps for five years, providing her with a wealth of trial experience and issues related to military law. After leaving active duty, she became a Reserve Judge Advocate prior to going into private practice.
Dividing military pensions is complex, and one wellspring of confusion is how to protect the non-service member spouse if the service member elects disability pay in lieu of monthly retirement pay. The problem arises because the Uniformed Services Former Spouse Protection Act (USFSPA) permits state courts to divide "disposable retired pay," but it prohibits dividing disability pay.
If a military retiree elects disability, he or she must waive their gross retired pay, dollar for dollar, for every dollar of disability to be received, which reduces the amount of "divisible" retirement pay that courts can award. Furthermore, the service member can elect disability benefits at any time, including years after the final divorce decree and without the consent of the former spouse. Thus, exchanging retirement pay for disability could deprive a non-military spouse of their fair share in a divorce or lead to reduced payments without warning.
The non-military spouse, however, has a number of options to protect their interests but foresight and diligence are required.
Listen as our experienced panel of military divorce attorneys discusses how disability affects the division of military pensions and best strategies for anticipating and planning for these types of elections.
- Types of nondivisible pay
- Effect of electing disability
- Military spouse
- Non-military spouse
- Dual military couple with and without disability pay
- Strategies for protecting non-military spouse
The panel will review these and other key issues:
- What is disability pay and why does it affect retired pay?
- What are the advantages of electing disability pay?
- What is the 10/10 rule?
- What strategies exist for protecting the non-military spouse if disability is elected?
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