Treatment of Disability Pay in Virginia Military Divorce, Part I

In military divorce cases, Virginia courts are allowed by the federal Uniformed Services Former Spouses Protection Act (the USFSPA) to award the service members former spouse a portion of his or her disposable retired pay. The USFSPA excludes from the definition of disposable retired pay any disability pay the service member receives.

A service member may receive one of two different types of disability pay, both of which are excluded from the USFSPA definition of disposable retired pay: (1) military disability retired pay, and (2) VA disability compensation. The exclusion of disability pay benefits from the definition of disposable retired pay means that the former spouse of a service member may lose out on hundreds or thousands of dollars per month that he or she might otherwise have received in a division of the member's disposable retired pay.

Military disability retired pay is available for those service members who are sufficiently disabled that they cannot perform their assigned duties. If a member has enough creditable service, the member may be placed on the "disability retired list" and may begin to draw disability retired pay.

Let's look at the example of (the entirely hypothetical) Marine Colonel Jessup. A year ago, Colonel Jessup left his wife in Virginia and took a new set of orders to Naval Base Guantanamo, in Guantanamo Bay, Cuba. The Colonel told his wife that he would "send for her" once he got settled in Cuba. However, soon after arriving at "Gitmo," the Colonel fell in love with a younger Cuban woman, and told his wife their marriage was over.

Colonel Jessup's wife has now been granted a divorce from the Colonel in Virginia (her current place of residence) on the ground of desertion. The Virginia court has awarded the now former Mrs. Jessup 50% of Colonel Jessup's disposable retired pay. But that wasn't enough for the scorned Mrs. Jessup. She also filed a charge of adultery against Colonel Jessup with the Marine Corps.

Colonel Jessup is now having breakfast on base with two intrepid Navy Judge Advocates conducting an investigation of the adultery charge. Colonel Jessup is explaining to them: "You want to investigate me, roll the dice and take your chances. I eat breakfast 300 yards from 4000 Cubans who are trained to kill me, so don't think for one second that you can come down here, flash a badge, and make me...."

Just then, one of the legs of Colonel Jessup's chair snaps, causing him to fall awkwardly to the floor. Colonel Jessup is rushed to the hospital, where doctors find that that he has cracked several vertebrae in his back. Colonel Jessup's days in the Marine Corps are over. The Colonel applies for military disability from the Corps. The Marine Corps rates Colonel Jessup as 40% disabled, and incidentally drops the adultery charge against him.

Colonel Jessup leaves the military after 20 years of service. Colonel Jessup will receive disability retired pay in an amount equal to the Colonel's normal retired pay based on his years of service, or his base pay times his disability rating, whichever amount is greater.

This can be viewed as a three-step process (for the purposes of this example, assume Colonel Jessup has an active duty base pay of $3,000 per month): The first step is to calculate Colonel Jessup's normal retired pay based on his years of service. This is done by multiplying his active duty base pay by his years of service by 2.5%; in this case, $3,000 x 20 years x 2.5% = $1,500.

The next step is to multiply Colonel Jessup's base pay times his disability rating. In this case, $3,000 x 40% = $2,200. Colonel Jessup would then receive the higher of these two amounts as his military disability retired pay: in this case, he would receive $1,500 per month. In Colonel Jessup's case, the Uniformed Services Former Spouses Protection Act provides that the amount of the Colonel's military disability retired pay that derives from multiplying his base pay times his disability rating is not divisible.

Thus, in this case, $1,200 of Colonel Jessup's military disability retired pay is "off limits" to division per the order of the Virginia divorce court. The court order can be used to divide only the remaining $300 of Colonel Jessup's military disability retired pay. Thus, the former Mrs. Jessup will receive only 50% of $300, or $150 per month.