Reserve and National Guard Issues in Family Court Part 1 RESERVE vs. ACTIVE RETIREMENTS

First of a series of articles addressing Reserve and National Guard Issues in Family Court

By Barry J. Bernstein*

     A division of military retirement is dramatically different for National Guardsmen or Reservists than from Active Duty.  The National Guard and Reserves, collectively referred to as Reserve Components (or “RC”), are under a different system than Active Component (“AC”) counterparts.  Any litigant not knowing the rules could be giving away a small fortune, and a lawyer not knowing the significance is potentially committing malpractice.

          Active Component (AC) Example:  Major Payne on active duty serves for 20 years and is married for exactly half of that period.  In a divorce, the ex-spouse could be entitled to half (50%) of the retirement earned during half (50%) of the marriage.  The formula may be as easy as finding a 25% spousal entitlement (50% of 50% =25%).  
     RC retirements, unlike active duty, are based on a point system, not years of service.  The years of service are only important for vesting (20 “qualifying” years) for entitlement to retirement.  Once the vesting threshold is reached, the calculation of the benefit is based on the number of points (not years) and the retired rank achieved.  The same fact pattern as described above for the AC looks dramatically different with on one factor appropriately applied. 
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            Reserve Component (RC) Example: Major Payne retires from the Army Reserve after 20 years, married for half that period, same as the AC formula above.  In the RC scenario, we assume a Major Payne has 5 years of active duty and 15 years of minimal reserve service point accrual as a Guardsman.  Instead of a simple 25% spousal entitlement claim like the AC example, the potential spousal entitlement ranges from 20-44%.

     The above example is an extreme, with all the active-duty time lumped together either outside or during the marriage period.  In the real world, there will be a blend of active-duty time throughout the reservist’s career.  However, where AC duty time occurs dramatically impacts the appropriate division.  The issue raised here is that dividing RC retirement should NEVER be assumed to divide the same as the AC counterpart.  A reasonable analysis should be made before attempting to divide the RC retirement to fully understand the spousal entitlement. 

     While these articles are intended to inform you of unique issues of the military and veterans,  it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.
    *The author retired as a colonel from the Army after 34 years of service.  He now practices law as Bernstein Law, LLC in South Carolina, advising clients and attorneys on military issues.