Military service members on active duty accrue a full month of paid military leave annually. And while there are certain exceptions to this rule, they are typically only allowed to roll a maximum of 60 days into the next fiscal year. Anything over the 60 day maximum is forfeited. You either use it or you lose it.
So what happens to military leave when you go through a divorce? Is your ex-spouse entitled to equal division of that time and money?
Cashing-In Your Leave
To understand the implications that a divorce will have on your military leave, you first need to understand the cash value of your leave. According to 37 U.S. Code § 501, a member of the Armed Forces who is honorably discharged is allowed to sell back unused military leave. This is known as cashing-in your leave. Current law only allows active service members to cash-in a maximum of 60 days throughout their entire career, which is valued at base pay. If you have reenlisted and already cashed in your military leave in the past, then you must take transitional leave instead.
Transitional leave is different than cashing-in leave because service members can be removed from active duty but still receive their full pay, including Basic Allowance for Housing (BAH), and Basic Allowance for Subsistence (BAS). This is considerably more advantageous than just receiving base pay. The main disadvantage to transitional leave is that service members are technically not discharged from the military during this time.
How Military Leave Is Treated During Divorce
The division of assets is often a major source of contention for divorcing couples, and during a military divorce, one of those assets could be your military leave. Often times, the deciding factor when determining if military leave is considered a divisible asset is whether you have the right to cash it in. If the value of your vacation or military leave is unable to be determined, then you may be allowed to retain those rights.
The Colorado Supreme Court has deemed accrued vacation as marital property only when there exists a right to cash it out. As such, if the leave can be cashed in and the value of it calculated, it is treated similarly to vacation and sick time.
Due to the complexities surrounding military divorces, it is highly recommended that all service members contact a law firm with significant experience representing military members and their families through the divorce process. Your attorney will be able to determine if your military leave is a divisible asset and help you avoid further contention with your ex-spouse.
In the Military and Considering Divorce?
Military divorces can be complex and difficult to navigate without the help of an experienced divorce lawyer who understands the unique laws and regulations that govern these types of cases. At Kinnaird & Kinnaird, P.C., our Colorado Springs military divorce attorneys have represented military service members and their families throughout the divorce process for over 30 years. Please contact us today at (719) 520-0003 to schedule a free consultation.