No matter who earned it or who owns it, most assets acquired during marriage are considered both spouses' property. Military retirement benefits are no different. Under the Uniformed Services Former Spouse Protection Act, states can treat military retirement benefits as marital property and divide them between both spouses in a divorce. You can also claim part of your spouse's military retirement benefits if you're still married, but only under certain circumstances.
Accessing Direct Deposit
If you and your spouse have agreed to split military retirement pay, one of the easiest ways to do so while still married is to deposit the pay into a joint checking account. The Defense Finance Accounting Service, which manages military retirement pay, requires that retirement funds be disbursed via direct deposit. If the pay is direct-deposited into a shared account, both you and your spouse can withdraw half the amount, even if you live separately.
Putting It in Writing
Each state has its own rules about what is community and separate property in marriage, but that doesn't mean you must abide by those rules if both you and your spouse think differently. Your spouse can write a letter giving half his military retirement pay to you. If the letter is notarized and submitted to your attorney, you should be able to receive half the pay. However, you won't be able to receive direct payments from the Defense Finance Accounting Service, as this protection is reserved for former spouses under the Uniformed Services Former Spouse Protection Act.
Getting Legal Separation
A legal separation functions like a divorce. While you remain legally married during a separation, you can divide your assets and debts. This division is legally enforced by the courts. To divide military retirement pay in half, ensure this is stipulated in the separation agreement.
Obtaining Power of Attorney
Your spouse can give you power of attorney if she is unable to make sound financial decisions because of a physical or mental disability, such as traumatic brain injury, depression or dementia. If you have financial power of attorney, the Defense Financial Accounting Service will continue to deposit your spouse's military retirement pay into her checking account, but you will have the legal right to manage all or part of the funds due to your power-of-attorney status.
- Under-Secretary of Defense, Personnel and Readiness: Military Compensation -- Retirement
- National Caregivers Library: What Is Power of Attorney?
- Nolo.com: Marriage and Property Ownership -- Who Owns What?
- Military.com: Understanding Divorce in the Military
- Military.com: Uniformed Services Former Spouse Protection Overview
- Nolo.com: Separation vs. Divorce
Miranda Morley is an educator, business consultant and owner of a copywriting/social-media management company. Her work has been featured in the "Boston Literary Magazine," "Subversify Magazine" and "American Builder's Quarterly." Morley has a B.A. in English, political science and international relations. She is completing her M.A. in rhetoric and composition from Purdue University Calumet.