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Military Retired Pay vs. Disability Pay

Military retired pay is a divisible asset in the context of a divorce matter. For marriages of at least ten (10) years, military retired pay can be divided through DFAS such that each party receives their share of that benefit directly. For marriages of less than ten (10) years, the service member would be responsible to make sure the spouse received the correct amount of the benefit. Disability pay is not a divisible asset. The amount of disability pay is based on the extent of the service member's disability rating. Service members used to have to reduce their retired pay by the amount of any disability pay they elected to receive. This could result in the spouse of the member being shorted.

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Now, concurrent retirement and disability pay is permissible. This benefits the service member in that they can receive both benefits. It also protects spouses since retirement pay which they can be awarded will not be reduced. The Howell case discussed the post-divorce waiver of military retired pay in exchange for disability pay. It held that the courts can not intervene and the spouse could lose out on all retired pay if a service member subsequently elected disability pay instead. To protect spouses, it is important to reserve jurisdiction to deal with possible post-divorce issues. Alimony may be used as an alternative method for making sure the spouse still receives a certain amount per month as initially contemplated in division of the retirement pay.

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