Military Retirements and Disability

We receive lots of inquiries about veterans and their benefits. This is because several of our attorneys also handle VA disability cases and are VA accredited attorneys. To set the records straight and to help people plan accordingly here are the general rules. Please understand that exceptions arise and arguments are made that can impact on these general rules, but you’ll be safe by following these general rules and approaches.

Military Retirement: This occurs when a veteran served enough time to secure a retirement with the military. There are military related rules that pertain to direct payment to a former spouse but that is not the purpose of this post. Instead, understand that military retired pay is considered community property if some or all of the military service occurred during marriage. This means that an order dividing the military retirement must be entered (similar to a QDRO for other types of civilian retirements).

VA Disability: In general VA disability payments are not considered community property. This means that a former spouse is not entitled to a community interest in an ongoing disability payment or any of the VA disability back pay.

Because military retirement and disability pay are governed by federal law, the rules under federal law will pre-empt any state laws on the division of community property. The way this most commonly arises is when a veteran who is eligible for retirement instead elects to receive disability. Many spouses are frustrated on this point feeling that the choice is made to try and limit what the former spouse can recoup under state laws. However, the United States Supreme Court and our state court has indicated that when such a situation arises that a proper way to possibly get around this unfair result is to award spousal support.

For further information on how you can learn more about military retirement and disability payments in a divorce contact our family law experts at, or call us at 505-880-8737.