Military Pension and Divorce in North Carolina: Will My Spouse Get Half?

A military divorce isn’t so different from a non-military divorce, though some distinctions regarding benefits and finances, including retirement funds, should be noted. You may have questions about military pension and divorce in North Carolina. It’s also important to consider both state and federal laws when filing for a military divorce.

What’s Required For a Military Divorce in North Carolina?

In order for a military couple to file for divorce in North Carolina, either spouse must have lived in North Carolina for a minimum of six months or be stationed/under government order to reside in the state.

Furthermore, federal law states that for the military spouse’s pension fund to be included among the marital property subject to division in divorce proceedings, the state court must show that they are able to hear the case as it relates to the division of the retired pay.

The state court is permitted to hear the case if the military spouse either consents to the court’s jurisdiction, resides within the state for purposes unrelated to military duty, or has made the state their true, fixed, or permanent home (with the intent to return) at the time of the divorce’s initiation.

What Is the Non-Military Spouse Entitled to After Divorce?

The Uniformed Services Former Spouse Protection Act was enacted by Congress in 1982 to protect former spouses of military members from being unfairly denied resources and privileges following a divorce. This law extends to state courts the right to consider military pension as part of property subject to divorce division. In accordance with North Carolina laws of equitable property division, former spouses are entitled to half of the total marital property net worth.

Former spouses are allotted direct payment of their portion of the military spouse’s retirement funds (up to 50 percent) if the court awards it during property division. If alimony and/or child support is ordered, a maximum of 65 percent of the military spouse’s retired pay may be awarded. Some spouses are also able to retain commissary/exchange benefits, military healthcare and designation as a beneficiary for the Survivor Benefit Plan.

If a couple divorces after military retirement, the other spouse may receive some retired pay; if the marriage lasted at least ten years during at least ten years of active duty, the former spouse may be allotted retired pay of a fixed amount or percentage of disposable pension (minus debts, fines, etc.).

Health Care Options for a Non-Military Former Spouse

If you and your spouse have been married for at least 20 years, your spouse served for at least 20 years, and these two durations overlapped for at least 20 years, you, as the non-serving spouse, won’t lose any of your health benefits after divorce that you were entitled to while married.

For military couples who don’t meet these criteria, the former spouse may still receive partial benefits if the marriage lasted a minimum of 15 years that overlapped with at least 15 years of the service member’s active duty; the non-military spouse will be allowed transitional benefits for up to one year after the divorce.

For marriages that still don’t qualify for the aforementioned requirements, the former spouse can buy up to 36 months of coverage through the Department of Defense’s Continued Health Care Benefit Program until alternative healthcare is obtained.

Child Custody for Divorcing Military Parents

Child custody orders for divorcing military parents typically are subject to the state’s laws. For North Carolina, all relevant factors are considered when determining an arrangement that is with the child’s interests in mind; this includes any history of domestic violence between parents, the child’s safety, and the safety of either parent from domestic violence from their former partner.

When developing visitation terms, the age of the child(ren), arrangements during and after deployment, and visitations when/if the serving spouse is stationed outside the state or country may all play a part in the decision.

FAQs

Q: What Is a Military Spouse Entitled to in a Divorce Near North Carolina?

A: If the couple meets the requirements to be subject to North Carolina property division laws, the military spouse is entitled to at least half of all marital assets, including the pension. Depending on the length of the marriage and the duration of time it overlaps with the military member’s service, the other spouse may not be eligible to receive any retirement funds.

Q: Am I Entitled to My Husband’s Military Pension When We Divorce?

A: The non-military spouse is entitled to up to 50 percent of their partner’s pension if it is to be awarded during equitable property division. If alimony and/or child support is ordered, a maximum of 65 percent of the military spouse’s retired pay may be awarded.

The primary goal is a fair and balanced division of assets. There is no way to predict what amount of the spouse’s pension versus other property will be awarded during the proceedings. Hiring a high net worth divorce attorney can help you get the most equitable division.

Q: Do You Lose Military Benefits if Divorced?

A: You won’t lose military benefits after divorce if you’ve been married for at least 20 years, your spouse served for at least 20 years, and these two durations overlap for at least 20 years.

For only 15 years of marriage overlapping with 15 years of service, you may receive partial benefits within the transitional year after separation. For non-qualifying marriages, spouses may be awarded the Continued Health Care Benefit Program for 36 months of coverage until an alternative is obtained.

Q: Will the Military Pay to Move My Spouse After Divorce?

A: The military will cover the costs to move a non-military spouse after divorce if the spouse is returning home from an overseas base where the military spouse was stationed. For moves between states, the military will usually also cover the costs, so you do not have to pay. If the spouse is moving in-state, the costs will generally fall on the divorcing party; moving expenses can be negotiated as part of the settlement.

If you have questions about a military divorce, schedule an initial meeting with an experienced and compassionate family law attorney at The Law Offices of Aimee E. Cain today for help or questions about your military divorce.