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Dividing Military Retirement and Electing Disability Pay: Protecting Non-Military Spouses

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, January 26, 2023

Recorded event now available

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This CLE webinar will discuss how to divide military pensions when the military retiree elects to receive disability pay. The panel will explain why such an election might have tax benefits to the electing spouse and how this election affects the non-military spouse. The panel will offer strategies for anticipating and offsetting a future election to receive disability long after the final divorce decree.


Dividing military pensions is complex, and one wellspring of confusion is how to protect the non-service member spouse if the service member elects disability pay in lieu of monthly retirement pay. The problem arises because the Uniformed Services Former Spouse Protection Act (USFSPA) permits state courts to divide "disposable retired pay," but it prohibits dividing disability pay.

If a military retiree elects disability, he or she must waive their gross retired pay, dollar for dollar, for every dollar of disability to be received, which reduces the amount of "divisible" retirement pay that courts can award. Furthermore, the service member can elect disability benefits at any time, including years after the final divorce decree and without the consent of the former spouse. Thus, exchanging retirement pay for disability could deprive a non-military spouse of their fair share in a divorce or lead to reduced payments without warning.

The non-military spouse, however, has a number of options to protect their interests but foresight and diligence are required.

Listen as our experienced panel of military divorce attorneys discusses how disability affects the division of military pensions and best strategies for anticipating and planning for these types of elections.



  1. Types of nondivisible pay
  2. Effect of electing disability
    1. Military spouse
    2. Non-military spouse
    3. Dual military couple with and without disability pay
  3. Strategies for protecting non-military spouse


The panel will review these and other key issues:

  • What is disability pay and why does it affect retired pay?
  • What are the advantages of electing disability pay?
  • What is the 10/10 rule?
  • What strategies exist for protecting the non-military spouse if disability is elected?


Hilscher, Kristopher
Kristopher J. Hilscher

Sullivan & Hilscher Family Law

Mr. Hilscher regularly serves as an expert co-counsel on military divorce cases and military pension division,...  |  Read More

Dawn M. Laubach
Dawn M. Laubach

Laubach Law Office

Ms. Laubach practice focuses on family law, probate, estate planning and military law matters. She previously...  |  Read More

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