Posted on Jun 6, 2016
Is an ex-spouse automatically entitled to a percentage of your retirement pay in the event of a divorce?
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Does the military automatically grant a percentage of retirement pay to the ex-spouse, or is that strictly a decision of the court in the divorce decree?
Retirement
Divorce
Military Pay
Legal Services
Posted 8 y ago
Responses: 93
As of 1981 Federal law, Uniformed Services Former Spouses’ Protection Act (USFSPA), Title 10, United States Code, Section 1408, ALLOWS for retirement pay to the ex-spouse, but does not mandate it. The state that has jurisdiction must still make it a court order as part of the divorce settlement.
More than you ever wanted to know about divoice and retiernment pay
http://www.dfas.mil/garnishment/usfspa/faqs.html
More than you ever wanted to know about divoice and retiernment pay
http://www.dfas.mil/garnishment/usfspa/faqs.html
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1stSgt Edward Jackson
SGM Erik Marquez -
http://www.militaryonesource.mil/financial-and-legal/legal-issues?content_id=281477
http://www.militaryonesource.mil/legal?content_id=271162
http://www.military.com/benefits/military-legal-matters/uniformed-services-former-spouse-protection-overview.html
Obviously I cannot go into details of military divorces in all 50 states, each state may or may not have additional requirements and benefits for the former spouse. I would think laws in states like California, Massachusetts, Hawaii, and New York would be less friendly to the military member than to the spouse. States like Texas, Nevada, Alaska, and Utah might be more balanced in a divorce. Remember, almost every jurisdiction has residency requirements, usually in 1 month (30 day) increments up to about 6 months (180 days). So decide if the state you just left, or the state you just moved into gives the best deal for you.
But the bottom line is it all depends on how good your lawyer is vs. how good your spouses lawyer is. There are divorce/family law attorneys, and then there are attorneys that specialize in military family law and divorces. You can find a divorce attorney on just about every street corner in the US. Those attorneys that specialize in military divorces would be found around major active duty military bases.
None of this applies to child support. Expect the divorce court to decide how much child support is going to be, based on your rank and time in service. Your children can still keep their military ID cards and receive military healthcare (TriCare). Keep DEERS up to date and do your home work.
http://www.militaryonesource.mil/financial-and-legal/legal-issues?content_id=281477
http://www.militaryonesource.mil/legal?content_id=271162
http://www.military.com/benefits/military-legal-matters/uniformed-services-former-spouse-protection-overview.html
Obviously I cannot go into details of military divorces in all 50 states, each state may or may not have additional requirements and benefits for the former spouse. I would think laws in states like California, Massachusetts, Hawaii, and New York would be less friendly to the military member than to the spouse. States like Texas, Nevada, Alaska, and Utah might be more balanced in a divorce. Remember, almost every jurisdiction has residency requirements, usually in 1 month (30 day) increments up to about 6 months (180 days). So decide if the state you just left, or the state you just moved into gives the best deal for you.
But the bottom line is it all depends on how good your lawyer is vs. how good your spouses lawyer is. There are divorce/family law attorneys, and then there are attorneys that specialize in military family law and divorces. You can find a divorce attorney on just about every street corner in the US. Those attorneys that specialize in military divorces would be found around major active duty military bases.
None of this applies to child support. Expect the divorce court to decide how much child support is going to be, based on your rank and time in service. Your children can still keep their military ID cards and receive military healthcare (TriCare). Keep DEERS up to date and do your home work.
Uniformed Services Former Spouse Protection Act for Divorced Spouses in the Military
Uniformed Services Former Spouse Protection Act for Divorced Spouses in the Military
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SGM Erik Marquez
1stSgt Edward Jackson - Thank you,, but that is not a policy, regulation or law. Military one source as a nice resource, but all to often it is inaccurate, outdated or just plain wrong. So it's great for getting a general idea and understanding, but limited in its use as a current source for policy, regulation or law.
Additionally you do realise that 10 year point being made is just about DIRECT {PAYMENT of retired pay from DFAS.. It has no meaning or reference to ALLOWABLE payment by other means to a former spouse of 1 day, 10 days or 10 years
Additionally you do realise that 10 year point being made is just about DIRECT {PAYMENT of retired pay from DFAS.. It has no meaning or reference to ALLOWABLE payment by other means to a former spouse of 1 day, 10 days or 10 years
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1stSgt Edward Jackson
As far as I know, the military branches do not have a regulation about this. The policy is to follow court orders.
In the military, divorce is considered a civil case. They want nothing to do with it, other than enforcing what the courts have said.
I somewhat agree with you on military one, but they are getting better. I also referenced a military.com link.
But you may notice I also advised everyone to do their homework on this subject and to get a really good lawyer.
In the military, divorce is considered a civil case. They want nothing to do with it, other than enforcing what the courts have said.
I somewhat agree with you on military one, but they are getting better. I also referenced a military.com link.
But you may notice I also advised everyone to do their homework on this subject and to get a really good lawyer.
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MSgt Alexander Gutierrez
to start, the linked document may be in error but it is the updated edition of JA 274, Uniformed Services Former Spouses' Protection Act, dated November 2005. ("This revision provides information on the history, state courts' jurisdiction to divide retired pay, divisibility of retired pay, the issue of disability compensation, direct payment to former spouse, additional benefits for former spouses, USFSPA and domestic abuse cases, USFSPA and Separation incentives and bonuses, and the Survivor Benefit Plan.") It is the only reference used in determining compensation, I referenced versions from the Army's Judge Advocate School, The Commerce Department and from DFAS, you should let them know that they are all in error.
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It's actually both. The law was changed a few years ago that after 10 years of being married during military service the spouse is automatically entitled and DFAS will automatically pay the spouse.
Less than 10 years and that is at the discretion of the state. Most look at it as a portion of your present or future retirement. For example, you were together 5 years of military service, 2.5% per year (20 years earns 50% of your retirement) 12.5% as determined by the state.
In the cases where it's less than 10 years it's on you to pay to the spouse.
Less than 10 years and that is at the discretion of the state. Most look at it as a portion of your present or future retirement. For example, you were together 5 years of military service, 2.5% per year (20 years earns 50% of your retirement) 12.5% as determined by the state.
In the cases where it's less than 10 years it's on you to pay to the spouse.
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SGM Erik Marquez
SFC (Join to see) "It's actually both. The law was changed a few years ago that after 10 years of being married during military service the spouse is automatically entitled and DFAS will automatically pay the spouse."
That's not what im finding from 1981 to present.. can you find a cite supporting your position and statement please?
That's not what im finding from 1981 to present.. can you find a cite supporting your position and statement please?
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SFC (Join to see)
I was actually spitting it from memory of the protection of former spouses act. But what the act actually states is that spouses who are awarded retirement can be paid directly from DFAS
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SFC (Join to see)
This is not correct. The only thing the 10 mark does I is let DFAS automatically pay them. There still has to be a court order mandating a payment. Under 10 years you have to make the payment.
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SGT Rosi Teresi
My brother was married >10 but <20 and she gets half even though she married another retiree. I think it should stop if the spouse gets married. The alimony did, why not the retirement entitlement?
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I retired after 25 years of Naval Service, my ex and I were married for 17 of those years. The former spouse protection act as it was understood by myself goes as follows if you were married for a period of 10 years then she/he would be entitled for a percentage up to as much as 50% of your retainer. It's not up to DFAS how much of a split will be it's the court system in the state where you filed for divorce as to what extent they will be awarded.
I was divorced in Harris County, Houston, Tx 1992 and retained a attorney while on leave visiting family on my side before going back to Guam. My divorce started out as non contested and in a matter of 30 days it became contested, she had come to Houston after my departure and wound up retaining the same attorney . The next thing I know I'm paying all attorney fees and she got 50% of my retainer. I was not aware that she could be represented by the same attorney , she remarried shortly after our divorce. I was under the impression this would null and void her ability to receive these benefits from that point.
Not the case she'll get this for the rest of her life until I die, this is what irritates me more than anything . I've held a immense amount of hatred towards sorry POS, for I have never understood what entitled her to this since she never did anything to further my career in all those years. I also paid a rather large child support for my children's benefit and I never had a problem with that part of the divorce. The system needs a serious overhaul in my opinion, for like anything else it needs updating or too be totally dissolved ! I welcome your feedback as well.
I was divorced in Harris County, Houston, Tx 1992 and retained a attorney while on leave visiting family on my side before going back to Guam. My divorce started out as non contested and in a matter of 30 days it became contested, she had come to Houston after my departure and wound up retaining the same attorney . The next thing I know I'm paying all attorney fees and she got 50% of my retainer. I was not aware that she could be represented by the same attorney , she remarried shortly after our divorce. I was under the impression this would null and void her ability to receive these benefits from that point.
Not the case she'll get this for the rest of her life until I die, this is what irritates me more than anything . I've held a immense amount of hatred towards sorry POS, for I have never understood what entitled her to this since she never did anything to further my career in all those years. I also paid a rather large child support for my children's benefit and I never had a problem with that part of the divorce. The system needs a serious overhaul in my opinion, for like anything else it needs updating or too be totally dissolved ! I welcome your feedback as well.
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