Medically Retired from the Military? Those Benefits May Not Be Divisible

Anyone who has already gone through or is currently going through the military divorce process is aware of the many difficult challenges that often arise. While any type of divorce is tough, there are specific obstacles and hurdles that only emerge in military divorces. One of these unique challenges is determining which military benefits should be divided between spouses.

If you or your spouse are receiving payments for being medically retired from the military, you are likely wondering if these benefits are considered marital property that you must divide during a military divorce.

What exactly does it mean to be medically retired from the military?

When a servicemember is medically retired from the military, this means that they are no longer fit for duty. However, in order to be medically retired from the military, the individual must also have served for a minimum of 20 years or have at least a 30 percent disability rating. There are a few other terms used to describe being medically retired from the military, such as Chapter 61 retirement, the Permanent Disability Retirement List, and disability retirement. No matter which term you choose to use, they all typically describe the same situation.

How does the military determine if a person is permanently medically retired or disabled?

According to 10 U.S. Code § 1201, the military decides whether a person is permanently medically retired or disabled by:

• Assessing their condition and determining if they are unable to perform the same tasks required by other servicemembers in their rank or office
• Determining if their medical condition is permanent or temporary
• Determining if the disability is 30 percent or higher and that they have 20 or more years of military service on their background
• Confirming that the disability or medical condition happened while on duty

Not everyone who becomes hurt, injured, or develops an illness receives military medical retirement. Therefore, it is critical to make sure that you qualify under these elements before seeking these benefits.

How much does a person who is medically retired or disabled from the military get paid?

The Department of Defense provides two different formulas used to calculate how much a person who is medically retired or disabled from the military will get paid. For your convenience, we will go over both methods below.

• The first formula requires you to take your retired based pay and multiply it by your percentage of disability. This looks like: Retired base pay x %. Remember that your percentage must be over 30 percent but cannot exceed 75 percent.
• The next formula requires you to take the number of years you have served in the military and multiply this number by 2.5%. Therefore, if you have served in the military for 25 years, your formula will look like 25 x 2.5%.

Is there a difference between being retired and medically retired from the military?

It is important that you do not mix up the terms “retired” and “medically retired” when speaking with your San Antonio divorce lawyer. General retirement means that the servicemember retired from the military for no other reason than they were ready to leave the military lifestyle and duty, while medical retirement means that the servicemember became injured, sick, or disabled on duty which forced them to retire from the military.

A servicemember who is medically retired is given the same benefits as a servicemember who generally retired. If you are unsure of whether your spouse is medically or generally retired from the military, you should consider reviewing their Discharge from Active Duty or Certificate of Release documents. When reviewing this information, you can look at the forms and find where it says, “Narrative Reason for Separation.”

In this box, it will either explain that the individual was separated from the military because of a permanent disability or because they had sufficient service. While you may think that this information is irrelevant, it can actually play a big part in your divorce and the benefits you may be entitled to.

Are my military retirement disability payments divisible in a divorce?

The simple answer to this question is no, your military retirement disability payments are not divisible in a divorce; but, if you receive additional payments for your retirement, this money will likely be divisible. For example, if a retired servicemember receives $1,500 in military disability but his entire monthly retirement is $2,500, the additional $1,000 every month may be divided. However, if the military servicemember receives $1,500 in military disability and his monthly retirement is $1,500, this means that he is only receiving military disability, which the ex-spouse will not be entitled to.

How does this affect child support payments?

Your military retirement disability payments are considered income. In fact, the 1987 Supreme Court case Rose v. Rose explains that disability payments can and should be used to “provide reasonable and adequate compensation for disabled veterans and their families.” Your military retirement disability payments will be used to calculate the amount of child support you will be required to pay as they can and should be used to help take care of your children.

Military retirement and disability payments can be very difficult and complicated to understand. Therefore, if you have questions or concerns regarding the laws and regulations put in place and how they may affect the division of your military benefits during a divorce, please do not hesitate to get in touch with Grable Grimshaw PLLC at your earliest opportunity. The San Antonio military divorce lawyers at our firm have the knowledge, skills, and experience to help you ensure that your benefits are being properly and fairly divided. Call our office or submit our contact form to schedule a free consultation.