Idaho Military Divorce

Military divorce in Idaho is more complex than divorces between civilians. Not only might the parties live in different states, or they might have just recently moved to Idaho, but there are also additional factors that need to be considered. 

Military retirement programs and accounts leave parties with significant assets that need to be properly handled during the divorce process. In addition, some military members often have property in multiple states or need to get divorced quickly to help facilitate a move or new duty assignment.

Regardless if you’re the military member or if you are a military spouse, it’s important to hire a military divorce attorney who understands Idaho military divorce issues.

At Taylor Law & Mediation PLLC, our attorney Robert J. Taylor has nearly two decades of military experience, including more than a decade of serving in the military before starting law school. He also grew up on Mountain Home Air Force Base and is the son of a retired military member. This firsthand knowledge and personal understanding of the military leaves him well prepared to handle most military divorce issues in Idaho.  Taylor is a military divorce lawyer that understands the ins and outs of military divorce, and can help you.

Some important Idaho military divorce issues are described below:

Military Divorce & Retirement

One of the most complicated parts of a military divorces in Idaho is determining what portion of a service member’s military retirement pay the former spouse is entitled to. This is important to get right up front because it must be included in the divorce decree or the former spouse will miss out on receiving this benefit later.

The answer to the first question people have about military retirement pay is yes, in Idaho, former spouses are entitled to a portion of the military retirement pay earned during the marriage at the time of the divorce. 

However, they are only entitled to the portion earned during the marriage and can only receive any retirement pay if the military member receives it. If a military member has been in the military for seven years and married for five of those years, the former spouse would only be entitled to receive half of the retirement pay the military member earned for a period of five years. If the military member does not qualify to receive military retirement pay, the spouse will not receive any payments in the future.

Generally speaking, a military member must acquire 20 good years of service to qualify to receive a military retirement benefit. Depending on when the military member enlisted into the military, the member earns a certain percentage of their base pay every year they are in the service. Until a recent change to the military retirement system, military members would earn 2.5 percent of their base pay a year. If the member did 20 years of service and retired, they would be entitled to 50 percent of their base pay. If a member served longer than 20 years, they’d be entitled to a larger percentage based on an additional 2.5 percent a year. Retirement is calculated on the service member’s highest three years of base pay, which is the member’s pay based on their rank and time in service without any additional benefit payments included. In addition, active duty service members are eligible to receive their military retirement pay beginning the month after they retire. National Guard and Reserve members must typically wait until age 60, though there are some exceptions for members to receive it earlier.

There are four basic ways to divide military retirement pay.

1. Fixed dollar clause.
   • “Former spouse is awarded $1,500 per month of Member’s retired pay.” 
   • This is the easiest of the four ways to divide military retirement, but would not account for any future cost of living increases the service member might later receive during his retirement.
2. Fixed-percentage clause.
   • “Former spouse is granted 50 percent of the member’s military retirement pay.”
3. Formula Award.
   • ““Former spouse shall receive 50% of Member’s retired pay times a fraction, the numerator of which being _____ months of military service performed during the marriage, and the denominator being the total months of service by Member.”
     •  Active Duty: ½ x (length of overlap of marriage and service/total months in service) x 100 =Former Spouse’s Share
   • Reserve Component: “The Former Spouse is awarded a percentage of the member’s disposable retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is _____ reserve retirement points earned during the marriage, divided by the member’s total number of reserve retirement points earned.”
4.  Hypothetical Clause
   • “Former spouse is granted 50% of what a master sergeant (E8) would earn if she were to retire with 17 years of military service.”
   • This clause allows for military retirement pay to be divided even though the member may not have earned it yet. It also locks in the portion of the service member’s retirement benefit earned at the time of divorce at their current rank. The military member could continue their career and get promoted multiple times without having to pay an increased amount of retirement pay to their spouse.

Sometimes a member might transfer from the active component to the National Guard or Reserve before or during. the marriage. The retirement points from both periods of service are calculated in the military member’s retirement pay. However, the member could need to wait until they reach the age of 60 to receive any retirement pay.

Military Divorce & The “10-year rule”

One of the biggest misunderstandings parties have during an Idaho military divorce is over the “10-year rule.” This rule states that if the parties have been married for at least 10 years and those 10 years overlap with 10 years of military service, the former spouse can receive their share of the service member’s military retirement pay directly from DFAS. However, a lot of military members believe that this rule means that they must be married for 10 years for their spouse to receive any portion of their military retirement in the divorce. This is not the case. A former spouse is still entitled to a portion of the military member’s military pay earned during the marriage no matter how long the marriage lasts. If the parties do not meet the 10-year rule as described above, the spouse can still receive a portion of the retirement pay, they will just need to receive it from the military member directly. The rule only allows direct payment from DFAS to the military member and has no bearing on what the former spouse is entitled to.

Disability Compensation

“Disposable” retired pay is only the portion of the retired pay remaining after, among other events, the service member elects to receive a dollar-for-dollar offset in the form of disability compensation, or the amount that is the difference between his or her gross retired pay and his or her disability pay. 

Service members can get disability pay from the military or Veterans Affairs. The only portion divisible is the amount of pay between the member’s gross retirement pay and their disability pay. Spouses can not be awarded any portion of the disability pay that the service member elects to receive. 

TSP

Other than their traditional military retirement pay and real property, a military member’s Thrift Savings Plan is often one of the biggest assets that need to be distributed during a military divorce in Idaho. A Thrift Savings Plan is the military’s version of a 401(k) retirement account. Generally speaking, the income earned or funds contributed to the account during the marriage is community property and property and subject to distribution between the parties. 

For military members who entered the service after getting married or started contributing to an account after their marriage, the full account is likely subject to being distributed. For military members who had a Thrift Savings Program account prior to their marriage, one way to determine what the spouse is entitled to is to look at the balance the day prior to the marriage and the account’s current balance and to divide the difference in half. TSP account statements are produced quarterly for military members, which can be accessed by the military member online at any time.

Child Support During Idaho Military Divorce

One of the biggest questions service members and spouses have during a military divorce in Idaho is what income to use for a military member to calculate child support. The easiest answer is that all sources of income should be included in calculated supports. This includes Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS).

For members of the National Guard and Reserve, the answer is a little more nuanced. If a military member has a full-time job and they serve in National Guard or Reserve as a traditional member drilling one weekend a month and two weeks a year, that income would likely be considered voluntary overtime and not included in child support calculations. However, if the military member has employment through his or her association with the National Guard or Reserve that requires them to maintain their military membership as a condition for their employment, their drill pay would likely need to be included for child support calculations as it is not voluntary overtime. 

Child Custody During Military Divorce

One of the biggest issues in an Idaho military divorce may be what state has jurisdiction of the children to establish a child custody order. Generally speaking, the children must reside in a state for a period of six months before a state can establish jurisdiction to establish a child custody order. This can be complicated for some military families if they’ve recently moved to Idaho from a new state or even from a forging country. 

Contact a Military Divorce Attorney Today!

Need to talk with our military divorce lawyers in Idaho? Contact us below! We have offices in Boise, Coeur D’Alene, and Mountain Home.