After divorce, can I get my ex’s military benefits?

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Q. I was married for 14 years to a man who was in the military and has since left service. He remarried several years later. As long as I have never remarried, am I still eligible for his military benefits or Social Security since I was the only one married to him during that time?
— Divorced

A. When you divorce in New Jersey, equitable distribution rules take over.

Like other assets accumulated during a marriage, a military pension is considered a marital asset subject to equitable distribution.

The Uniformed Services Former Spouses’ Protection Act (USFSPA) authorizes state courts to distribute military pensions/benefits to a former spouse, said Jeralyn Lawrence, a family law attorney with Lawrence Law in Watchung.

She said the distribution of the military benefit must be explicitly addressed within a signed settlement agreement or court order.

Military pensions and benefits are paid by the Defense Finance and Accounting Service (DFAS).

“For a servicemember’s former spouse to receive benefits directly from the DFAS, the marriage must have endured for a period of 10 years and the servicemember/former servicemember must have served for a period of 10 years during the marriage,” Lawrence said.

In the event these prerequisites are not met, but a settlement agreement or court order provides for distribution of the benefit incident to divorce, payment must be made to the former spouse by the servicemember/former servicemember, she said.

Notably, a former spouse may request that the marital portion of the military benefit be shared regardless of the length of the marriage, she said. The so-called “10/10 Rule” only impacts the source of payment to the former spouse.

“While the benefit is subject to equitable distribution, it is important to note that same is not a vested right but is instead considered a contingent benefit that may later be reduced should the servicemember receive veteran’s disability benefits, thus reducing the military benefit,” Lawrence said. “Under such circumstances, the court is precluded from distributing the disability benefit, but is authorized to take into consideration any reduction to the original military benefit when calculating or recalculating spousal support.”

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This story was originally published on Feb. 12, 2020.

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