The military spouse may or may not have a right to a portion of the servicemember's military retired pay. In Indiana, the spouse may have a right to a portion of the servicemember's military retired pay if the servicemember receives retired pay during the marriage or if the servicemember becomes eligible for military retired pay during the marriage. The NDAA 2018 changed the amount of military retired pay that the spouse may be eligible to receive.
In Indiana, the following rules apply:
a. Yes. Any military retired pay earned prior to the divorce may be split between the parties by the court.
b. No. While the husband and wife may choose to divide the military retired pay, the court can not (without the agreement of both parties) order the servicemember to pay any of the military retired pay that they may earn in the future to their spouse.
2. What does military retired pay or pension include?
a. Military retired pay includes all military retired pay that is received by the soldier, but does not include VA disability or Combat Related Special Compensation (CRSC). It does not include military retired pay that was earned after the date of divorce (NDAA 2018) and in Indiana, does not usually include retired pay earned after the date of filing for divorce. It does include the Cost of Living Allowance (COLA).
3. What happens if the servicemember dies, does the former spouse still get paid?
a. No. The exception to this rule is the Survivor's Benefit Plan SBP). If the former spouse has been designated as the beneficiary for the Survivor's Benefit Plan, then the former spouse will receive up to 55% of the servicemember's military retired pay if they are eligible. If the former spouse remarries before the age of 55 years, then they will not receive SBP unless their "new" spouse dies or they divorce.
Dealing with the issues involved with military retired pay and the interface between state and federal law is complex. Not every family law attorney has the expertise to adequately represent you in this area. Do your homework carefully before you hire an attorney. Do not try to negotiate this area yourself.