Continuing a discussion of the Wisconsin Court of Appeals’ decision in Peterson v. Bauer, http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=104582, I want to focus on the treatment of military retired pay in a Wisconsin divorce.    Federal rules govern the division of military retirement benefits upon divorce. Therefore, Wisconsin divorce cases involving military members must account for relevant federal laws.  The division of military benefits depends upon the length of service, length of the marriage, and years of marriage during military service.

Many military members falsely believe that Wisconsin divorce courts cannot divide military benefits. They can, and do.  Military retired pay is usually treated as marital divisible property in a Wisconsin divorce.  The lawyer for the military member must make the proper arguments to segregate those benefits for the service member.

The member’s spouse, however, must be careful to properly divide any benefits he/she receives.  Military rules limit the amount and the means of payment of these benefits to an ex-spouse.  If the spouse’s Wisconsin divorce attorney does not educate the judge on these limits, and obtain an order with the “magic words,” the military will refuse to pay the benefits to the spouse. For example, if the payment is called “property division,” the amount of payments may be limited.  However, if the payment is called “spousal support,” the payment may end or decrease prematurely.   Much like the parties in Peterson, the spouse or servicemember will not likely get what they expected.

I  have represented many military members and their spouses in Wisconsin divorce cases, and have an intimate understanding of the various options and regulations governing military benefits.  Spouses facing a Wisconsin divorce in counties with a strong military presence, such as Dane County, Sauk County, Jefferson County, and Columbia County should call for a free consultation.