Disability Pay In Military Divorces

In a military divorce, disability pay is treated differently from retired pay.  This is because it is excluded from the operation of the Uniformed Services Former Spouses Protection Act (USFSPA). Thus, present and future military disability benefits are not subject to distribution to a former spouse by a divorce court.

There are four different types of military disability pay, all of which are excluded from the USFSPA definition of disposable retired pay: (1) military disability retired pay; (2) VA disability compensation; (3) Combat-Related Special Compensation (CRSC); and (3) Concurrent Retirement Disability Pay (CRDP).

  1. Military disability retired pay is available for service members who can no longer perform their military duties. Members with enough creditable service are eligible.
  2. VA disability compensation covers injuries or disabilities that occurred on active duty, or that were worsened by active service. The disability rating system used for VA compensation measures the extent of the disability and its effect on the service member’s employability.
  3. CRSC is a special compensation for combat-related disabilities. It is non-taxable, and retirees must apply to their Branch of Service to receive it.
  4. CRDP is a restoration of retired pay for retirees with service-connected disabilities.  It is taxed in the same manner as retired pay, and it is normally considered taxable income. No application is required. Eligible retirees receive CRDP automatically.

Service members are permitted to elect disabilty benefits without the consent of their former spouse. However, if a service member elects disability compensation, it typically requires (except in the cases of CRSC and CRDP benefits) a dollar-for-dollar waiver of retired pay. Consequently, the amount waived is subtracted from the amount available to pay the former spouse under a previous division of retired pay by the divorce court. Thus, many years after the entry of a final divorce decree, the former spouse may wind up receiving a substantially reduced monthly support payment without advance warning.

There are legal strategies available to service members and military spouses to anticipate and plan for these types of future events. For instance, a divorce settlement agreement can be crafted to provide for an increase in monthly payments in the event of a future reduction of lost retired pay due to disability benefits.  Alternatively, the parties may be able to return to the divorce court to adjust spousal support for retired pay that was lost or seek indemnification for the reduction in military retired pay.

Our servicemembers have earned the right to claim disability pay. But, under Florida law, the servicemember’s election does not terminate the rights of their spouses to support and a share of the military retirement.
— Scott P Davis

The impact of disability pay in a military divorce is a complicated issue.  If you have questions about military disability pay and divorce, we can help make sense of your legal rights and obligations.

Please continue reading to learn more about us.  If you or someone you care about is facing a military divorce or family law case, we can help.  Please do not hesitate to call us today at (813) 251-6222 or contact us online.