By Captain Bradly Adam Carlson
Military life can be extremely challenging because of the constant moving, long work hours, and numerous deployments. Sometimes these challenges cause military members and their spouse to end their marriage. Military couples often have young children, and because of the lifestyle, the non-military spouse is often unemployed or underemployed.
Military members face many problems that require legal solutions when they choose to get divorced in Alaska. Some of the most common problems involve the division of a service member’s military pension and associated benefits, real and personal property, and child custody planning. This column will specifically provide information on the division of a service member’s pension.
The two most common questions that military members going through the divorce process ask me are, “Can I get divorced in Alaska even though I was married in a different state,” and, “Is my spouse going to ‘take’ my pension?”
Although the first question is very simple to answer, the service member should give it some serious consideration because the laws governing divorce will differ with each state. A military member stationed at a military base in Alaska for at least thirty days is considered a resident for the purpose of filing for divorce. If the member files for divorce in Alaska, the laws of Alaska will control the outcome of the proceeding. The member could also consider filing for divorce where the spouse is living if geographically separated, or file in the state where the military member claims legal residency. The member should carefully consider the difference in law between each state before filing for divorce.
The second question is a little more complex. A military member is entitled to a variety of benefits at different times after retirement. Those benefits include military pension, health benefits, potential disability benefits, and base access privileges. There is a mixture of state and federal law that is used to determine how each of these benefits is divided, if at all. Every member’s unique facts and circumstances will determine how the court divides these assets, which makes the answer to the question complex.
Many times, I will hear military members say, “Once you are in for ten years, your spouse is automatically entitled to fifty percent of your retirement.” Some people will go as far as to quote this as the “10-10” rule.
Divorce proceedings are a subdivision of Family Law, which is controlled by state law. Alaska views the portion of the service member’s pension earned during the marriage as part of the marital estate. This means the non-military spouse is entitled to fifty percent of the pension that was earned during the marriage. Although a service member must serve twenty years (240 months) for his or her military pension to fully vest, he or she is earning credit towards that pension on a monthly basis. The exact amount of a monthly military pension is a multistep calculation that is influenced by many factors, including the number of years of service. Each month of service that overlaps with marriage is considered marital property. For example, if a couple is married for ten years during a twenty-year military career, Alaska law will consider ten years of the military pension as marital property. If the couples decide to separate, either before or after retirement from the military, the non-military spouse would likely be entitled to twenty-five percent of the service member’s retirement pension (one-half of 120/240). Because the couple was married for ten years, the non-military spouse can receive payment directly from the Defense Finance and Accounting Service.
If the couple was not married for ten years or more, the service member then would be responsible for paying the non-military ex-spouse monthly payments.
As you can see, the division of a service member’s pension at divorce is complicated. Many other issues make military divorces different than civilian divorces. Each military divorce will have its own distinctive problems, which are often compounded by a mixture of state and federal law. Many people think that they can resolve their problems on their own by simply filling out online forms and representing themselves throughout the marriage dissolution process. Perhaps the biggest mistake people make is not seeking qualified counsel that can provide legal solutions to their marriage dissolution problems.
Disclaimer: This column is for informational purposes only. It does not represent the views of the United States Air Force or the Department of Defense, nor is it intended to create an official endorsement of ECHO News by either the United States Air Force or the Department of Defense. Furthermore, it does not create an attorney-client relationship between the author and readers. This article is not intended to take the place of legal consultation with a licensed attorney.
Editor’s Note: Captain Bradly Adam Carlson is an Assistant Staff Judge Advocate serving in the U.S. Air Force assigned to Joint Base Elmendorf-Richardson, Alaska. He routinely advises military members on a variety of legal issues including family law, landlord/tenant disputes, and estate planning. He also represents the United States in the prosecution of Air Force members in courts-martial.