Dividing property in a divorce can be complex, and when one or both spouses serve in the military, things can get even more complicated. One of the biggest concerns is how military pensions are treated in Minnesota divorce cases. Are they divided like civilian retirement accounts? Do special rules apply?
The short answer is: yes, military pensions are subject to division in a Minnesota divorce, but certain federal and state laws affect how they’re handled. Here’s what you need to know if a military pension is part of your divorce.
Are Military Pensions Considered Marital Property in Minnesota?
Yes. Under Minnesota law, any asset acquired during the marriage—including a military pension—is considered marital property and is generally subject to equitable distribution during a divorce.
Even if only one spouse served in the military, the pension accrued during the marriage is typically viewed as a joint asset.
That said, the portion earned before the marriage or after separation may be considered separate property and not subject to division.
What Laws Govern the Division of Military Pensions?
Dividing military retirement benefits is governed by both federal and state laws.
Federal Law: USFSPA
The Uniformed Services Former Spouses’ Protection Act (USFSPA) allows state courts to treat military retirement pay as property, not income. That means state courts like those in Minnesota can divide it during divorce proceedings.
However, USFSPA:
- Does not require courts to divide pensions
- Limits direct payment from the Department of Defense to ex-spouses to situations where the marriage lasted 10 years or more during military service
Even if the marriage doesn’t meet this “10/10 rule,” Minnesota courts can still award a portion of the pension—the payment just won’t come directly from DFAS (Defense Finance and Accounting Service).
State Law: Equitable Distribution
Minnesota follows the principle of equitable distribution, meaning assets are divided fairly, not necessarily equally. This gives judges discretion when dividing military pensions and other marital assets.
How Are Military Pensions Calculated and Divided?
Military pensions are defined benefit plans based on:
- Years of service
- Rank at retirement
- Retirement pay scale
Courts in Minnesota commonly use a formula approach, which calculates the marital portion of the pension based on:
(Years of service during the marriage ÷ Total years of service) × Monthly benefit = Marital portion
Once the marital portion is determined, the court decides what share of that goes to each spouse.
For example:
- If 12 of 20 years of military service occurred during the marriage, 60% of the pension is marital property.
- The court may award 50% of that 60% (i.e., 30%) to the non-military spouse.
This percentage can be awarded as a direct payment or included in the broader asset division, such as offsetting with property or cash.
Does the Non-Military Spouse Need to Wait for Retirement?
Yes. The non-military spouse typically must wait until the service member actually retires to receive their portion of the pension.
Unlike some retirement accounts, there’s no lump-sum distribution option for a military pension. Payments begin only once the service member starts collecting benefits.
However, courts can address this by awarding other assets of equal value to balance the settlement if needed.
What About Disability Pay?
Disability compensation from the Department of Veterans Affairs (VA) is not divisible in divorce. This can impact how much the non-military spouse receives if the service member waives part of their retirement pay to get disability benefits (a common practice to reduce taxes).
In some cases, courts may adjust the property settlement to account for this or award other marital assets as compensation.
Survivor Benefit Plan (SBP)
The Survivor Benefit Plan allows the non-military spouse to continue receiving pension payments after the service member dies. However, the SBP is not automatic.
To secure SBP coverage:
- The divorce decree must specifically award SBP to the former spouse
- The former spouse must submit a written request to DFAS within one year of the divorce
Without this step, the ex-spouse could lose their right to any payments after the service member’s death.
What Happens if the Marriage Was Short?
Even if the marriage lasted fewer than 10 years, Minnesota courts can still divide the pension. However:
- The ex-spouse won’t receive direct payment from DFAS
- The military member may need to make payments directly (called “indirect payments”)
- The court may offset the pension share with other assets if enforcement becomes difficult
Should You Use Mediation?
Yes. Military pension division can get technical and emotional. Mediation often leads to better outcomes by:
- Encouraging cooperative solutions
- Preserving privacy
- Saving legal fees and time
Whether through mediation or litigation, working with an attorney who understands both Minnesota family law and military retirement rules is essential.
If you’re unsure about how to approach this, Martine Law’s team can guide you every step of the way.
Final Thoughts
Military pensions are treated like other marital assets in Minnesota divorces—but the rules governing their division are more complex. Between federal laws like USFSPA, state equitable distribution standards, and special benefits like SBP or VA disability pay, getting it right takes experience.
If you’re going through a divorce that involves military benefits, make sure you understand your rights—and don’t go it alone.