Pensions and retirement accounts in most divorces involving non-military parties, are divided by way of a Qualified Domestic Relation Order (QDRO). Depending upon the requirements of the plan these are divided by either a set dollar amount or a percentage based upon values that are either ordered by the Court or agreed to by the parties.
If you or your spouse is in the military and has a pension plan, the plan cannot be divided by way of a QDRO. All military branches do not accept an Order by a Circuit Court Judge for division of military and/or retirement pay.
This does not mean that the pension cannot be divided it simply means that a different process must be followed. Failure to follow the correct “process” could result in delays in payment or lost benefits. In addition, federal law does not allow for the division of any disability benefits. Any portion of a pension or retirement plan that is for disability payments cannot be divided by way of an Order whether from the branch of military or a Circuit Court Judge.
On the other hand, Wisconsin law does allow the Court to consider the disability pay as income for determining maintenance and/or child support. In short, although it cannot be divided it can be considered by the Court as income for support calculation purposes.
Generally, in non-military divorces the account is divided and put into a separate account for the benefit of the ex-spouse. However, pursuant to federal law, these accounts are not divided in the same way. Rather, if you are to receive a portion of your ex-spouse’s military pension and/or retirement plan you will receive a check each month. Again, that is generally limited to an amount up to 50% of the military member’s disposable retired pay.
In short, divorces involving military personnel take extra preparation and caution both to protect the military member’s benefits as well as the member’s ex-spouse.
If you have divorce questions whether involving a military member or not, please contact Attorney Mark L. Krueger for a free, no cost, no obligation consultation. At Krueger Hernandez & Thompson SC, we listen, we care, we get results!
In the Madison area contact us at (608) 824-9540, in the Baraboo area at (608) 356-3961 or Statewide at (866) 455-2993, email with questions at mark@kh-law.net and check out our website at https://khtlawyers.com.
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