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The fact pattern is a familiar one. Husband or Wife serves in the United States Army, Navy, Air Force, or Marines. They are wounded in service and are voluntarily or involuntarily released from the military with a disability rating. This rating directly relates to the amount of disability pay they’re eligible to receive. 

Disability pay, as determined by the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. 1408,requires that the disability portion of the pension be deducted from the regular pension. That portion of the pension is not to be considered divisible in any divorce action, unlike the veteran’s regular retirement pay. 

The effect of this means what was a marital asset to be divided usually at 50% between both spouses, not just the spouse who served, is now not divisible in a divorce action related to the portion transferred into a disability pension. This has developed into a troubling trend that’s angered judges who then award lump sums of alimony to the non-military serving spouse to make up for the pension amount that was changed into a disability pension. This action robs the veteran of the Congressional mandate that disability pensions not be divided in a divorce.

Georgia Supreme Court Ruling

This happened in a recent Georgia divorce trial. The court awarded the wife in the case $60,000 in compensation due to the transfer of the military pension, a marital asset, into the disability pension, a non-marital asset. The case was appealed.

On appeal, the Georgia Supreme Court made clear to the trial court that this was unacceptable. A trial court cannot treat the disability pension, even if it subtracts from the value of the regular military pension, as community property. Therefore, it cannot compensate the other spouse for the reduction in the military pension. 

Hire a Skilled Lawyer

If you are divorcing, it pays to have an attorney with an understanding of this area of law who can set the trial court straight. Work with someone who knows the court is not to consider the disability pension in its final ruling. Federal law completely preempts the states from treating waived military retirement benefits as divisible community property. The Georgia Supreme Court has made it clear that this is the law in the State of Georgia for divorce.