What Happens to a Military Pension in a Nevada Divorce?
A Nevada military divorce is subject to the state laws relating to divorce, custody, and property division, as well as special federal laws and regulations that apply specifically to members of the military, their spouses, and dependents. Often, one of the most complex issues relates to division of a spouse’s military pension benefits under Nevada community property laws. For both spouses, it is essential to be represented by a lawyer who understands both state divorce law and the special rules that apply in the case of a divorce involving a military spouse.
Federal Law on Retirement Rights in a Military Divorce
A specific federal law, the Uniformed Services Former Spouse’s Protection Act (USFSPA), establishes rules governing a military spouse’s benefit entitlements following a divorce. The law includes provisions relating to division and payment of retirement benefits in a military divorce.
The USFSPA recognizes the authority of state courts to distribute military retirement pay under community property rules established in state law. Since Nevada is a community property state, that provision means a military pension is subject to division in a Nevada military divorce, just as other retirement accounts are subject to division in a divorce in the state.
Under both the federal law and state divorce law, the portion of a military pension that accrued during the marriage is considered to be marital property subject to division under the community property provisions of state law. While Nevada law does not require equal division of marital property, a court deciding on property division generally will divide marital property equally, in the absence of factors justifying a different division.
However, in many cases, divorcing spouses negotiate and agree to a property settlement that addresses all marital property issues. The agreement may not divide all property equally, although it is subject to court review and approval, so it must be fair to both parties.
In negotiating a property settlement agreement in a Nevada divorce, there are several different approaches to determining disposition of marital rights in a military pension. For both spouses, it is important to understand the options and benefits of alternative strategies before agreeing to a property settlement. Getting assistance from a knowledgeable attorney is essential.
Addressing a Military Pension in a Divorce
If a married couple negotiates division of the marital property portion of a military pension in a property settlement, the best resolution depends on a number of factors and the specific situation of each spouse. Generally, if the pension is divided, the division can be accomplished in one of four ways, using: 1) a specified dollar amount, 2) a percentage of the total, 3) an amount based on a specified formula, or 4) an amount determined when the pension has fully matured.
A commonly used method to divide a military pension is to use the military’s formula, which divides the number of service years during the marriage by the total number of years the member will be in service. If the spouses agree to use this formula, the civilian spouse does not receive any pension funds until the service member ends their military service and the retirement is awarded.
Another option is for the spouses to agree that the military spouse will make a one-time lump sum payment to the civilian spouse when the divorce is final. The amount would be determined by taking into account all the relevant factors, which requires complex calculations.
Alternatively, the spouses could agree to a deferred percentage calculated when the pension fully matures. This option may be viable for spouses in a long marriage, when the military member plans to continue serving for a few more years.
A different approach entirely is for the civilian spouse to agree to give up the pension rights in exchange for other property or assets of equal value. This alternative may appeal to the divorcing spouses when the civilian spouse also has a retirement plan subject to division, or wishes to retain the home or other marital property or assets.
How to Choose the Best Option
In a specific case, the right approach for each spouse depends entirely on all the circumstances. Getting guidance from an experienced military divorce lawyer who can assist with property settlement negotiations is the only way to be certain you protect all your rights with regard to a military pension and all the other issues in a Nevada divorce.
Schedule a Free Consultation With an Experienced Las Vegas Military Divorce Attorney
If you are a military member or civilian spouse considering filing for divorce in Nevada, Las Vegas family law attorney Joseph Gersten is here to help. He draws on his extensive experience in domestic matters, including military divorce and family issues, to protect your rights and interests and pursue cost-effective resolution of all issues.
Attorney Joseph Gersten works with clients in Las Vegas, Henderson, and elsewhere in Clark County. Your initial consultation is always free-of-charge at The Gersten Law Firm. Call 702.857.8777 or complete our online form to schedule an appointment.
