When going through a divorce clients often ask me what can and will be divided. The general rule is that all items considered “martial property” are divisible; a definition we get from the law. Of course there are exceptions to this rule and as a result, my answer for my clients is not always cut and dry. This becomes even a bit more complicated when one party (or both) are service members.
Specifically, this becomes an issue when dealing with military retirement benefits. Military retirement benefits are subject to division as marital property, military disability payments however, are not. These two intersect when a service person opts to change his or her retirement payout into disability payments. What a spouse previously thought he or she was entitled to could now be protected property. It is important to know what is classified as what type of benefit and plan for an unexpected change.
Another wrinkle for spouses in the service is determining where to file for divorce. Many military families move around a lot and do not necessarily meet the minimum time requirement to establish residency in order to file. For such couples, there is a presumption that where they enlisted can be used and is their home jurisdiction. Unless there is clear evidence that the couple intended to put down roots elsewhere.
These are just two of the differences that impact military families. If you or your spouse are or were in the service and are facing a divorce, make sure to consult an attorney who is familiar with the law and how it applies to you.