Is an ex-spouse automatically entitled to a percentage of your retirement pay in the event of a divorce?

SFC J Fullerton — Mon, 06 Jun 2016 12:51:33 -0400

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?

Response by SFC Private RallyPoint Member made Jun 6 at 2016 1:16 PM

SFC Private RallyPoint Member — Mon, 06 Jun 2016 13:16:54 -0400

It's up to the state you divorce in, division of marital property. How it was done in FL when I divorced. 1991

Response by SFC(P) Private RallyPoint Member made Jun 6 at 2016 1:34 PM

SFC(P) Private RallyPoint Member — Mon, 06 Jun 2016 13:34:42 -0400

I can tell you what they told me when I filed for divorce at nine years 11 months. Period. After 10 FAS but if you file before you reach 10 FAS dad should leave u alone but I'm not a lawyer.

Response by SSG Private RallyPoint Member made Jun 6 at 2016 1:39 PM

SSG Private RallyPoint Member — Mon, 06 Jun 2016 13:39:33 -0400

Varies per state that you file for divorce in.

Per DFAS :

No, there is no Federal law that automatically entitles a former spouse to a portion of a member’s military retired pay. A former spouse must have been awarded a portion of a member’s military retired pay in a State court order. The Uniformed Services Former Spouses’ Protection Act (USFSPA), Title 10, United States Code, Section 1408, passed in 1981, accomplishes two things. First, it authorizes (but does not require) State courts to divide military retired pay as a marital asset or as community property in a divorce proceeding. Second, it provides a mechanism for a former spouse to enforce a retired pay as property award by direct payments from the member’s retired pay. Retired pay as property payments are prospective only. Retired pay arrears cannot be collected under the USFSPA

Response by SFC Private RallyPoint Member made Jun 6 at 2016 1:43 PM

SFC Private RallyPoint Member — Mon, 06 Jun 2016 13:43:37 -0400

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.

Response by SGM Erik Marquez made Jun 6 at 2016 1:58 PM

SGM Erik Marquez — Mon, 06 Jun 2016 13:58:55 -0400

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

Frequently Asked Questions

Response by SFC Mike Edwards made Jun 6 at 2016 2:01 PM

SFC Mike Edwards — Mon, 06 Jun 2016 14:01:13 -0400

If it will giver you a piece of mind and freedom and she wants it, then giver it to her. Some states don't, but then again each are different. I was married 10 years in my first marriage and we agree and it work out fine. I didn't have to give up any of my retirement. Understanding adults.

Response by SFC Alfredo Garcia made Jun 6 at 2016 2:11 PM

SFC Alfredo Garcia — Mon, 06 Jun 2016 14:11:17 -0400

This is a very complex issue. The answer is yes and no.
Yes. The Uniformed Services Former Spouse Protection Act (USFSPA) permits state courts to apply the family law principles of their particular state when deciding how to divide military pensions in divorce.
No. They may not qualify.
Maybe. Depends on State and how good your lawyer is.

In every case, this question must be asked DURING the divorce NOT after. It is not automatic and only honored by court order.

Many have argued that dividing the pension is unconstitutional. All have failed.

Basic qualifications comes from a 10/10 'rule' which is used mostly to qualify for recipient to receive direct pay from DFAS. This part is only enforced for direct pay but typically used as a guideline by courts familiar with military divorces. 10/10 means did service member serve a minimum of 10 years of active duty service and was spouse married at least 10 years during the service member's active duty time. Keep in mind the 10/10 rule is for direct pay and only a guideline for other purposes.

If they go the direct pay route (and qualify) DFAS can only pay up to 50% of DISPOSABLE pay. If there are there is a second court order (separate child support e.g) then it is up 65% of disposable pay. If the SM has the bad luck of having more than two then it will first come, first served.

One example, is my own Mother. She divorced my father. They were married 29 years, My father served a smidge over 20. He had a break of service and a savvy attorney was able to leverage a break in service and some fuzzy math, he was able to limit my Mom to 45%. In Florida, it was new ground then. My father then decided to not work and used his disability (at time it concurrent retired/disability pay). So 45% of his disposable income was about $191 a month. His pension was at time was about $1500. Make sure you know what the potential outcomes are. My Mom got skrude.

I hope this helps a bit. But the best answer would best be offered by a qualified attorney in your area and need.

Response by Capt Tom Brown made Jun 6 at 2016 4:47 PM

Capt Tom Brown — Mon, 06 Jun 2016 16:47:28 -0400

Without trying to appear a complete wise-guy, let's hope you never have to find out. In all likelihood you will be disappointed by the courts.

Response by TSgt Brian Wyngaert made Jun 6 at 2016 4:58 PM

TSgt Brian Wyngaert — Mon, 06 Jun 2016 16:58:18 -0400

As I found out during my divorce. By the time we got to court for the divorce we have been married for twelve or thirteen years. My lawyer looked it up and found out that military retirement at 10 years became communal property. This meant it was up to the judge if he wanted to split it up. It wasn't automatic it actually had to be in the divorce decree to say that she got part of it. And just say no she didn't get any of it.

Response by MSG Pat Colby made Jun 6 at 2016 6:56 PM

MSG Pat Colby — Mon, 06 Jun 2016 18:56:39 -0400

Your mileage depends on the State but let me throw this out there. Take my situation for example. Once I retired, my Wife started working full time. That's two incomes. Both about the same $$$.

She can't touch my VA Check. That's for me and my broken body.

Should we part ways, the Judge looks at income. Since what she makes pretty matches my pension it might be pretty much a wash. I will without a doubt have to continue the SBP. I have no freaking idea how Tricare and Delta Dental would work. Pretty sure a County Judge cannot impose Federal benefits.

ON the OTHER hand... Let's say she's a freaking big bucks doctor and all I get is a poultry pension. You can bet your ASS I'd be fighting for half of HER paycheck...

This is a situation that I hope and pray I do not have to personally live through.

Response by SSgt Dan Montague made Jun 6 at 2016 7:50 PM

SSgt Dan Montague — Mon, 06 Jun 2016 19:50:41 -0400

I just finished going through this in California. She was married to me for almost 18 of my 20 years. I had no choice but to give her the 48% she rates. Now she can waive her part and DFAS will honor that as well.
Now she opted for the SBP as well. It was determined in our divorce settlement that she will pay the full SBP. However, it is my understanding that DFAS will usually do 50/50 if there is no court order.

Response by PO2 Robert Hunter made Jun 7 at 2016 6:20 AM

PO2 Robert Hunter — Tue, 07 Jun 2016 06:20:33 -0400

It depends upon the state in which the dissolution of marriage takes place.

Response by PO1 Private RallyPoint Member made Jun 7 at 2016 7:44 AM

PO1 Private RallyPoint Member — Tue, 07 Jun 2016 07:44:07 -0400

It depends on the judge, and what state you are in. I just went through my divorce and settled out of court. She opted away from retirement for longer alimony. Basically, the system is designed to screw over men. Key word for any soldier/sailor is this PRENUP!!

Response by 1SG Perry Jefferies made Jun 7 at 2016 7:53 AM

1SG Perry Jefferies — Tue, 07 Jun 2016 07:53:25 -0400

Basically yes, if you were married for at least 6 years while on active duty. The military doesn't grant it, state courts do, and the spouse has to request it. There are standard calculations which you can read about here: http://www.dfas.mil/garnishment/usfspa/faqs.html

Basically, let the lawyers split it up, fill out the allotment, and move on.

Frequently Asked Questions

Response by MSgt Christopher Schoen made Jun 7 at 2016 7:59 AM

MSgt Christopher Schoen — Tue, 07 Jun 2016 07:59:31 -0400

Less than 10 years...depends on state. Make sure the divorce decree states that the spouse is not entitled to retirement pay, TSP, and anything else. Once signed and filed...good to go.

Response by MSgt Peter Jahnke made Jun 7 at 2016 8:48 AM

MSgt Peter Jahnke — Tue, 07 Jun 2016 08:48:28 -0400

When I retired in 2007 and got Divorced in 2009, the State of Wisconsin said that because we were married the entire time of my 25 year career, then she was automatically entitled to half, it varies by state and the venue of your divorce. I could have fought it but it dragged on for long enough, just sign and move on....

Response by SCPO Don Baker made Jun 7 at 2016 9:04 AM

SCPO Don Baker — Tue, 07 Jun 2016 09:04:29 -0400

My ex's blood sucking ambulance chaser took me to the cleaners for 4 years. The good thing, she told this clown that it was to be my retirement and she wasn't going to ask for any. The state didn't get involved.

Response by SSG Private RallyPoint Member made Jun 7 at 2016 9:10 AM

SSG Private RallyPoint Member — Tue, 07 Jun 2016 09:10:20 -0400

Yes if you are married 10 years , or more

Response by CMSgt Eldin McGuffin made Jun 7 at 2016 9:11 AM

CMSgt Eldin McGuffin — Tue, 07 Jun 2016 09:11:17 -0400

Each case is different. Lots of questions to answer. i.e. Date of marriage - length of marriage. etc. This question could best be answered by your service legal office . CMSgt USAF Retired

Response by SSG George Baker made Jun 7 at 2016 9:11 AM

SSG George Baker — Tue, 07 Jun 2016 09:11:20 -0400

first you must be married for 10 years or more to get into retirement funds when they retire. otherwise the courts make the decsion on child support.

Response by MSgt Private RallyPoint Member made Jun 7 at 2016 9:13 AM

MSgt Private RallyPoint Member — Tue, 07 Jun 2016 09:13:31 -0400

I hate to say this, but it's cheaper to keep her and be miserable or cut your financial losses and be happy as can be.

Response by PO1 Private RallyPoint Member made Jun 7 at 2016 9:15 AM

PO1 Private RallyPoint Member — Tue, 07 Jun 2016 09:15:59 -0400

That is for the court to decide, any one who tells you differently is probably bluffing.

Response by MSgt Private RallyPoint Member made Jun 7 at 2016 9:16 AM

MSgt Private RallyPoint Member — Tue, 07 Jun 2016 09:16:00 -0400

I hate to say this, but it may be cheaper to keep her and be miserable or cut your losses and be free and happy!

Response by SMSgt Private RallyPoint Member made Jun 7 at 2016 9:18 AM

SMSgt Private RallyPoint Member — Tue, 07 Jun 2016 09:18:11 -0400

The ten year rule has to do with if DFAS will take the payment directly out of the pay of the member. If the marriage is less than 10 years - then the member will make the payments directly to the ex-spouse. But as others have said - state law governs divorce - so get a lawyer of your own "you get what you pay for" and no matter how much you both agree to get along at the beginning of the process - by the end - usually there are hard feelings about what one person is getting from the other. In my case - I divorce my then AD spouse and was a stay at home mom at the time. After the divorce - I got a federal job and went back in the military as a guard member. In our divorce - I got a portion of his retirement - based upon the number of years we were married, years of his service, etc. However, since I did not have any retirement at the time of our divorce - he is not entitled to my retirements. Good Luck and remember, if you have kids to not involve them in the issues that come up.

Response by CPO Robert Fenner made Jun 7 at 2016 9:35 AM

CPO Robert Fenner — Tue, 07 Jun 2016 09:35:58 -0400

Seems to be so because mine got just under 20% and we were only married 9.5 years before I retired in 2011 and she got that when we divorced in 2015. There seems to be a different answer from every lawyer you ask, even prior military JAG officers and such

Response by SFC Phillip Wiley made Jun 7 at 2016 9:49 AM

SFC Phillip Wiley — Tue, 07 Jun 2016 09:49:23 -0400

A good read that may assist in answering questions http://www.military.com/benefits/military-legal-matters/uniformed-services-former-spouse-protection-overview.html

Uniformed Services Former Spouse Protection Overview

A former military spouse may be eligible for base and health care benefits, as well as a portion of their ex's retired pay

Response by TSgt Michael Williamson made Jun 7 at 2016 9:50 AM

TSgt Michael Williamson — Tue, 07 Jun 2016 09:50:11 -0400

In two states, IN and AR, if you reach twenty years and your pension is vested, the spouse is automatically entitled to a share and there is nothing you can do about it. The judge can elect to offset the share with other assets.

In the other 40 states, it varies by law.

So, my ex is entitled to a lifetime share of my pension, but I will never be allowed to touch hers--she only has 12 years of service so far.

Response by PO1 Brian Carlson made Jun 7 at 2016 9:59 AM

PO1 Brian Carlson — Tue, 07 Jun 2016 09:59:39 -0400

When I divorced the court ordered a portion of my retirement pay to my ex. I had VA disability which the ex could not touch. At the time, we had between retirement pay or VA disability. We could not receive both. That has changed, now we can collect both.

Response by SFC Steven Saenz made Jun 7 at 2016 10:10 AM

SFC Steven Saenz — Tue, 07 Jun 2016 10:10:40 -0400

It is dependent upon the state the divorce was granted. There is no automatic timeline for giving up retirement to an ex. In states like California, which is a equal property state, spouses automatically get 50% of assets regardless of the time married. This is unless one of the spouses conceded this right. The military will acknowledge the divorce decree.

Response by SFC John Fourquet made Jun 7 at 2016 10:15 AM

SFC John Fourquet — Tue, 07 Jun 2016 10:15:20 -0400

The former spouse protection act gives state courts the right to divide military retired. Each state has it own divorce laws. You need to talk to a good divorce lawyer. Do your research and don't be cheap when deciding on a lawyer you. There is more at stake than you retired pay.

Response by LCDR Private RallyPoint Member made Jun 7 at 2016 10:23 AM

LCDR Private RallyPoint Member — Tue, 07 Jun 2016 10:23:30 -0400

Some states are more military friendly or spouse friendly. I think it really hurts the active duty in the case of child support and/or alimony where the service member gets divorced in a high-BAH state, and then gets stationed elsewhere. Courts don't readjust the support #'s when service members move, so they need to do their due diligence or get saddled with the high support amount.

Response by MSG Scott O'Hagan made Jun 7 at 2016 10:29 AM

MSG Scott O'Hagan — Tue, 07 Jun 2016 10:29:13 -0400

I believe it all goes by the state that you get divorced in. All deals can be made, like she keeps her 401(k) you keep your retirement. Shit like that. On my second divorce I had 12 years and in the judge said you will give her half of your retirement, I said that I am getting out of the army tomorrow.

Response by SGT Private RallyPoint Member made Jun 7 at 2016 10:34 AM

SGT Private RallyPoint Member — Tue, 07 Jun 2016 10:34:05 -0400

Depends on how long you were married. Recently updated it is now armed forces wide that any marriage to have been certified before divorce of 10 years or more, the ex-spouse is entitled to a percentage of the veterans retirement, however I am unclear on whether or not it stands true if the ex-spouse remarries or not.

-Veterans' Affairs 2016

Response by SgtMaj Robert Williams made Jun 7 at 2016 10:58 AM

SgtMaj Robert Williams — Tue, 07 Jun 2016 10:58:34 -0400

If the Law hasn't changed she can get 1/2 0f your pay excluding CRSC/CRDP if you are drawing it for your time in combat.

Response by MSG Private RallyPoint Member made Jun 7 at 2016 11:00 AM

MSG Private RallyPoint Member — Tue, 07 Jun 2016 11:00:51 -0400

I just went through this and the answer is yes and no. If she has been your wife for 10 years or more WHILE SERVING IN THE ARMY, then yes she is entitled to her portion of your retirement. If you were married for 15 years, but only 9 years of that marriage occurred while you were in the Army, then now.

Next it comes down to wording in the decree. You have to be very clear and specific or you could end up paying her more than what she's entitled. It can be worded 3 ways. The first way is as a percentage. This benefits your spouse. If she's awarded 25% of your retirement, then 25% when you retire would actually be worth more than 25% now (base pay increase/20 versus 30 years). Another way is as the amount of months you were married, amounting to a monthly award. This is a better way, but still benefits your ex spouse to your additional pay raises. The third way is the way I used and gives your ex spouse EXACTLY what she is entitled, no more and no less. It's called a "Hypothetical Award."

Here is the exact wording I used:

The parties agree that Wife is to receive fifty percent (50%) of the disposable military retired pay Husband would have received had Husband retired with a retired pay base of "AVERAGE OF MOST RECENT HIGH 3 YEARS" and with "NUMBER OF YEARS ex. 10.75" years of creditable service on "DATE OF SEPARATION".

I believe my wife is entitled to her portion of my military retirement..she put in the time, so she gets what she deserves, but nothing more. I do not believe she is entitled to additional pay raises and promotions I may receive, or more money based on the number of years I may serve (20 v.s. 30 years). Wording it this way gives your ex-spouse a specific amount based on IF you retired the day you separated from her. If you retired in 5 years, then you would get additional pay raises and maybe a promotion that she would NOT benefit from (she wasn't with you, so it doesn't seem fair/right for her to benefit financially from it), but she would get COLA adjustments for the past 5 years based on your hypothetical retirement date of the date you separated.

I read through the regulation and found the hypothetical award to be the most fair for both parties. Nobody benefits more than the other for the time you were together. Good luck.

Response by PO2 Dale Joiner made Jun 7 at 2016 11:09 AM

PO2 Dale Joiner — Tue, 07 Jun 2016 11:09:40 -0400

Mine didnt get anything but that also depends on if you are ordered to pay alimony in the divorce its like child support. The only thing I believe they cant touch is disability pay the only thing that can touch that is child support

Response by SFC Arai Pooley made Jun 7 at 2016 11:21 AM

SFC Arai Pooley — Tue, 07 Jun 2016 11:21:45 -0400

Regardless of the number of years they spent with you, they can claim 50% of the portion of retirement earned during that time. IT HAS TO BE AWARDED BY A JUDGE, DO NOT MESS AROUND! SPEND THE EXTRA DIME AND GET A LAWYER WHO HAS DEALT WITH THIS IN THE PAST. If you want, you can always give a little more. Once awarded, you can never give less.

Response by TSgt Dan Kenna made Jun 7 at 2016 11:42 AM

TSgt Dan Kenna — Tue, 07 Jun 2016 11:42:29 -0400

Any person who takes any portion of someones retirement is a worthless piece of shit, regardless of the time served and years married. My ex-wife tried. That bitch wasn't getting a dime...other than child support which I have no problem paying.

Response by CMSgt John Momaney made Jun 7 at 2016 11:48 AM

CMSgt John Momaney — Tue, 07 Jun 2016 11:48:11 -0400

The military is not involved in your divorce. The judge presiding over your divorce is. The judge decides Your alimony payment you owe and you pay this amount to your exspouse using the income you have. If your retired it may come out of your retirement pay. Usually it is based on how many years your spouse spent with you while you were in the military. Your spent gets a percentage based on that.

Response by PO1 Joe Burdette made Jun 7 at 2016 11:56 AM

PO1 Joe Burdette — Tue, 07 Jun 2016 11:56:30 -0400

My ex didn't get anything the Judge wrote on the decree she wouldn't get any of my retirement.

Response by SGT Louis Bender made Jun 7 at 2016 12:24 PM

SGT Louis Bender — Tue, 07 Jun 2016 12:24:55 -0400

That depends on the length of the marriage, was it for over 10 years? Another dis qualifier is, has she remarried and if so, has her second marriage lasted longer than your marriage? if the answer to my first question is no, then she is not. And if the answer to my second question is yes, then she is not.

Response by MSgt Franklin Overdear made Jun 7 at 2016 1:05 PM

MSgt Franklin Overdear — Tue, 07 Jun 2016 13:05:54 -0400

No, that's a decision of the Judge.

Response by MSgt Franklin Overdear made Jun 7 at 2016 1:06 PM

MSgt Franklin Overdear — Tue, 07 Jun 2016 13:06:16 -0400

No that's a decision for the courts.

Response by CPO John Hopkins made Jun 7 at 2016 1:32 PM

CPO John Hopkins — Tue, 07 Jun 2016 13:32:13 -0400

one thing to consider is that if you do NOT have any type of agreement regarding Military pay and allowances, is that a spouse or ex-spouse can receive one-half until such time as an legal agreement is put in place.

Response by PO2 Mike Vignapiano made Jun 7 at 2016 1:36 PM

PO2 Mike Vignapiano — Tue, 07 Jun 2016 13:36:01 -0400

Automatically? No. Only if you've been married 10 years or longer and the spouse petitions for it. FYI: same for any federal pension and social security benefits.

Response by SFC Private RallyPoint Member made Jun 7 at 2016 2:24 PM

SFC Private RallyPoint Member — Tue, 07 Jun 2016 14:24:50 -0400

For my divorce which took just under two years to complete as she went back to Korea, I will owe her a portion of my retirement based the rank that I am now ( Staff Sergeant). This was in Texas but different states vary I know.

Response by SCPO Larry Poffenbarger made Jun 7 at 2016 2:27 PM

SCPO Larry Poffenbarger — Tue, 07 Jun 2016 14:27:13 -0400

We had an agreement with both attorneys concerning pension distribution and spousal support but the judge overruled that agreement and set what he thought was fair. What he thought was equitable was a lot different than what we had agreed on. He included spousal support until she was eligible for Social Security. Cost me a lot over the past twenty years. I think judges have too much power to over ride agreements between the parties involved.

Response by Col Craig Berg made Jun 7 at 2016 2:30 PM

Col Craig Berg — Tue, 07 Jun 2016 14:30:38 -0400

No. Your ex must produce a judge's order to obtain access to any if your reretirement pay. What she is entitled to, if anything, is dependent upon the state the divorce is filed. DFAS has a department that handles these situations.

Response by PO1 Tom Walker made Jun 7 at 2016 2:31 PM

PO1 Tom Walker — Tue, 07 Jun 2016 14:31:39 -0400

if you were married for at least half of his military carreer, you are entitled to half of his retirement

Response by Sgt Kevin Wayne made Jun 7 at 2016 2:51 PM

Sgt Kevin Wayne — Tue, 07 Jun 2016 14:51:20 -0400

Anything that is yours cannot be given to anyone else without the over-reaching influence of a government agency.

Response by PO1 Private RallyPoint Member made Jun 7 at 2016 3:25 PM

PO1 Private RallyPoint Member — Tue, 07 Jun 2016 15:25:44 -0400

Has to be decided by a judge. Make sure you have a great lawyer that will fight for your best interests.

Response by SSgt James Assad made Jun 7 at 2016 3:44 PM

SSgt James Assad — Tue, 07 Jun 2016 15:44:36 -0400

It depends how long you were married while in service. If she was there for the majority of it (not sure the exact figure) then unfortunately yes, but if it was a couple years, then no.

Response by SSG Private RallyPoint Member made Jun 7 at 2016 4:39 PM

SSG Private RallyPoint Member — Tue, 07 Jun 2016 16:39:16 -0400

Not the military so much as it's the civil court system, but yes any marriage in over ten years and part of your retire is owed to that spouse

Response by SFC Ron Peck made Jun 7 at 2016 5:05 PM

SFC Ron Peck — Tue, 07 Jun 2016 17:05:58 -0400

If you were married for 10 years or more, the ex-spouse can get half your retirement pay. The state may have something to say about it also.

Response by SCPO Frank Carson made Jun 7 at 2016 5:28 PM

SCPO Frank Carson — Tue, 07 Jun 2016 17:28:02 -0400

Yep!

Response by SCPO Frank Carson made Jun 7 at 2016 5:28 PM

SCPO Frank Carson — Tue, 07 Jun 2016 17:28:12 -0400

Yep!

Response by SSgt Tim Ricci made Jun 7 at 2016 5:32 PM

SSgt Tim Ricci — Tue, 07 Jun 2016 17:32:50 -0400

In my case not automatically, it had to be part of the decree

Response by MSG Private RallyPoint Member made Jun 7 at 2016 5:32 PM

MSG Private RallyPoint Member — Tue, 07 Jun 2016 17:32:51 -0400

It is all determined by the courts, and FINCEN will abide.

Response by SSG Ronald Rollins made Jun 7 at 2016 6:04 PM

SSG Ronald Rollins — Tue, 07 Jun 2016 18:04:35 -0400

It all depends on how long you were married and what the court says. If you can prove she cheated for example she may well get nothing as she broke her vows.

Response by SSG Gene Carroll SR. made Jun 7 at 2016 6:13 PM

SSG Gene Carroll SR. — Tue, 07 Jun 2016 18:13:05 -0400

I believe if she dosn't remarry again, if you have chilren together, that she can.

Response by SSG Private RallyPoint Member made Jun 7 at 2016 6:44 PM

SSG Private RallyPoint Member — Tue, 07 Jun 2016 18:44:11 -0400

I was divorced in 2011. It was decreed in court that neither one of us would get any portion of the others retirement. We went our separate ways with our own retirement intact. My retirement was military and hers was from the hospital where she worked.

Response by CPO Mike Anderson made Jun 7 at 2016 6:49 PM

CPO Mike Anderson — Tue, 07 Jun 2016 18:49:19 -0400

When I was getting a separation agreement with my first wife, in Korea, the Army legal officers really pushed her to take part of my retirement, she refused, saying it was my retirement. Once in court, getting the final decree it did not come out or referenced in the final decree. With my second wife, she got 1/2 of 8/20's of my retirement or 20% of my retirement from a state judge in Texas. Which was fair as we were only married for the final eight years of my military service.

Response by CPO Howard Alexander made Jun 7 at 2016 7:39 PM

CPO Howard Alexander — Tue, 07 Jun 2016 19:39:11 -0400

Remember when they used to say that your wife and kids do not come in your "Sea Bag?" Well in Virginia they do, my ex got almost 1/2 of my retirement even though she is a pharmacist. I do not get squat from her, but she gets $650 from me a month. I think equal rights for women is a bunch of BS. It would be one thing if she supported me while I was in the Navy, but she was just a leech, a sucker, somebody who was just along for the ride. My only consultation is that she doesn't get all the other benefits (medical, dental, exchange, base privileges). Looks like the state I live in believes my ex is so incapable of taking care of herself that she deserve part of my retirement. Thank God I am rid of her.

Response by CSM Bill Roy made Jun 7 at 2016 8:45 PM

CSM Bill Roy — Tue, 07 Jun 2016 20:45:38 -0400

Unfortunately yes but depending on how long you were married you may have to pay her yourself. I have had to do that

Response by SSG Susan Slaughterr made Jun 7 at 2016 10:11 PM

SSG Susan Slaughterr — Tue, 07 Jun 2016 22:11:14 -0400

I know the answer to this as just went through it!! You have to be married 10 years at least to get this benefit AND he/she MUST request it. In our case, he was active duty 20 years, we were married 10 years I was entitled to a QUARTER of his retirement as I was only with him for half the time he was in. Any thing less than 10 years, I was told NO I was "entitled" to it, but he could voluntarily give it to me. ( if you're going through a divorce, does other side give up money voluntarily???)

Response by SCPO Private RallyPoint Member made Jun 7 at 2016 10:28 PM

SCPO Private RallyPoint Member — Tue, 07 Jun 2016 22:28:47 -0400

Being a soon to retire military member who is giving 33% to an ex I can tell you that federal law states the spouse is entitled up to 50% if you have been married for 10 years or longer. It is up to the state and court on how much to award up to that 50%. But they can be awarded retirement if you are married for less than 10 years...but no federal requirement for that

Response by SSG Christopher Strawser made Jun 7 at 2016 10:29 PM

SSG Christopher Strawser — Tue, 07 Jun 2016 22:29:24 -0400

According to the regs only if she was with you at all locations during your career known as the 20/20 rule then comes out as percentage see DFAS and they will figure for you

Response by SGT Christy Bowman made Jun 7 at 2016 10:31 PM

SGT Christy Bowman — Tue, 07 Jun 2016 22:31:22 -0400

Only if you retired while you were both married and had been married over 10 years or more. If you retired after the divorce, no matter how long you were married she is not entitled to anything. Also, it does not matter what the court says, deters will not and does not have to follow it if the criteria is not met. I went through this when I divorced my ex a few years ago. The court actually said he was to keep medical on me and deers took my ID card and said no because even though we were married 15 years he had not retired yet.

Response by SGT Stanley Bass made Jun 7 at 2016 10:35 PM

SGT Stanley Bass — Tue, 07 Jun 2016 22:35:10 -0400

They sure are. 50 5 if married over 10 years back when i got divorced. However. i am all Va and only thing she gets now is child support. i am on the 3 yar plan. In 3 years our youngest wil be 18 and i wil no longer have child support payments

Response by PO1 Robert Closson made Jun 7 at 2016 10:44 PM

PO1 Robert Closson — Tue, 07 Jun 2016 22:44:49 -0400

In a lot of cases the judge will look at how long you have been married to her most states use a 10yr mark and you can end up forking over up to 50% of your retirement pay but keep in mind what state you are in. please do two things first is a divorce really needed and second get a goo lawyer

Response by CW3 Steven Prestridge made Jun 7 at 2016 10:49 PM

CW3 Steven Prestridge — Tue, 07 Jun 2016 22:49:36 -0400

How many years do you have? I had a good friend, E7 with four kids. He was deployed, and his bank account was empty, and his wife was gone when he returned. She's found a new man. They had been married for 15 years. The judge ruled that since it was over 10, she would receive 50%. He had about 17 years in at that point. He decided to ETS instead of retire. She was furious, but since there is no retirement fund, it is instead Retired Ready Reserve, there was nothing she could do.
Fast forward 4 years. He enlisted in a NG unit in California. His kids were either with him, or in college. He went into the Active Guard, then retired. She took him back to court, but the judge ruled he was receiving a state retirement, and not a federal military retirement, which was in the divorce decree.

Response by SCPO Larry Knight Sr. made Jun 7 at 2016 10:55 PM

SCPO Larry Knight Sr. — Tue, 07 Jun 2016 22:55:09 -0400

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.

Response by PO2 Private RallyPoint Member made Jun 7 at 2016 11:32 PM

PO2 Private RallyPoint Member — Tue, 07 Jun 2016 23:32:21 -0400

No. The spouse must request in writing to the Office of Personnel Management. Get all the requirements on the same office. It shall be preceded by a court order.

Response by CPO Manny Perez made Jun 8 at 2016 1:07 AM

CPO Manny Perez — Wed, 08 Jun 2016 01:07:37 -0400

Unfortunately it is the law, if you have been married for 10 years or more. What the spouse cannot touch is your VA disability pay. So what ever is deducted from your retirement pay by a disability award cannot go to the spouse. Manny Perez HMC (SEAL) USN Retired.

Response by SFC Billy Huether made Jun 8 at 2016 5:08 AM

SFC Billy Huether — Wed, 08 Jun 2016 05:08:02 -0400

Not necessarily. There are a few variables:
1. How many years were you married?
2. How many of those married years were you on active duty?
Anything over 10 years(if memory serves), spouse may get a certain portion of retired pay as well as commissary and px privileges(i.e. They retain their ID card). Anything over 20 years, rule of thumb is 50% retired pay plus SBP, plus retention of ID card.
Best to check regulation or even better, call your JAG office. The JAG cannot represent you, however, they can give you advice.

Response by SSgt Melissa Gaitan made Jun 8 at 2016 8:26 AM

SSgt Melissa Gaitan — Wed, 08 Jun 2016 08:26:31 -0400

I know in the Marine Corps if you have been married 10 years, when you retire she does rate retirement pay. If she does not want then she can sign a form that denies it.

Response by PO1 Kevin Arnold made Jun 8 at 2016 8:50 AM

PO1 Kevin Arnold — Wed, 08 Jun 2016 08:50:18 -0400

I believe that you have to be married to a spouse for 10 or more years while serving in the military to have to pay any money.

Response by MSgt Mike Samson made Jun 8 at 2016 9:41 AM

MSgt Mike Samson — Wed, 08 Jun 2016 09:41:17 -0400

In New Hampshire you have to be married 10 or more. As soon as one party files get your financial forms into the court. That will assist you big time. If she did not work you maybe required to pay support to her.
Talk to a lawyer most give free 15 minutes to ask a few questions before hiring them.

Response by SGT Richard H. made Jun 8 at 2016 11:20 AM

SGT Richard H. — Wed, 08 Jun 2016 11:20:24 -0400

I don't think it's the Military's decision. That decision belongs to the judge officiating the divorce. The Military does, however, have the right to deduct the determined amount of spousal support and send it to her once that decision is made.

Response by SSG Jonathan Sims made Jun 8 at 2016 12:17 PM

SSG Jonathan Sims — Wed, 08 Jun 2016 12:17:22 -0400

Yes, I think that's crap though.

Response by SP6 Ivan Gentry made Jun 8 at 2016 12:55 PM

SP6 Ivan Gentry — Wed, 08 Jun 2016 12:55:59 -0400

I have been married for 37 years and never divorced. JAG might be able to answer that for you.

Response by MSG Private RallyPoint Member made Jun 8 at 2016 1:04 PM

MSG Private RallyPoint Member — Wed, 08 Jun 2016 13:04:26 -0400

I agree with SGM V. Barracks lawyers are cool, but talk to legal. Your local SJA may, or may not know. Military one source is also a good source of info.

Response by PO1 Kent Talmadge made Jun 8 at 2016 4:16 PM

PO1 Kent Talmadge — Wed, 08 Jun 2016 16:16:49 -0400

There's some erroneous information posted here. SGM Erik Marquez is pretty accurate, but there's some info he left out. There are one of three tests that must be met for the court to have jurisdiction on your retirement: (1) Your home of record-defined most accurately if you were discharged and told to go home today, where would that be? (2) Where you own a home or (3) lacking the previous two--meaning if your home of record were, say, Michigan, and you were getting a divorce in Virginia, Virginia cannot divide your retirement unless--you give your consent (underline that, italicize that, and mark it in bold). Some courts take you showing up as consent so be careful. Express that you do not give your consent for division of your retired pay and they're stuck.

A further problem is that most lawyers are not aware of the federal law that mandates this and will go in accordance with the state laws on divorce. Make your lawyer aware, have him find the law, and earn that money you're paying him/her.

Someone commented about the ten year thing. At ten years of marriage, DFAS will automatically cut a check to your ex-spouse for any amount the ex is awarded by the court. It is nothing more than this. Everything else is scuttlebutt.

Hope this helps. I'm 25% of my retirement a month because I didn't find this out until after the divorce. At that point, the only recourse is to sue your lawyer. Getting it changed in court is difficult, nearing impossible.

Response by PO1 Brian Carlson made Jun 8 at 2016 5:23 PM

PO1 Brian Carlson — Wed, 08 Jun 2016 17:23:34 -0400

Back when I divorced, a military retiree could not receive Military retirement pay and VA disability. A choice had to be made between military retirement or VA disability. An ex-spouse could collect from retirement pay, but not from VA disability. Since I had a choice I chose VA Disability. Now we receive both military retirement pay and VA disability. I know there is a mathematical equation to decide what the ex-spouse will receive. A court order may still be required to enforce payments to the ex-spouse, even though the military has determined the amount.

Response by SSG Robert Albright made Jun 8 at 2016 7:05 PM

SSG Robert Albright — Wed, 08 Jun 2016 19:05:55 -0400

Picked up a paralegal degree during a break in service. The quick answer is no not always. However, based on what I have seen, if you were married for 10 or more while on active duty, the Judge will award her a portion of your retirement. It varies by state but the federal law gives the state court the authority to divide military retired pay as a marital asset or as community property in a divorce proceeding. However USFSPA does not apply to disability benefits. A California case, Mansell v. Mansell, which was later upheld by the Supreme Court, held that while military retirement pay can be divided under USFSPA, any pay that is disability pay cannot be divided, since it was not specifically mentioned in USFSPA. This may mean that military medical retirement is exempt from the provisions of the USFSPA, I honestly have not done the research to give a definitive answer on that. It is worth noting that Puerto Rico does not divide military pensions in divorce proceedings.

Response by PO2 Michael Henry made Jun 8 at 2016 8:25 PM

PO2 Michael Henry — Wed, 08 Jun 2016 20:25:02 -0400

Good news is they, including the President, can't touch VA disability.

Response by CPO Richard Goldthwaite made Jun 8 at 2016 10:11 PM

CPO Richard Goldthwaite — Wed, 08 Jun 2016 22:11:25 -0400

In Virginia, 2% of the taxable retirement income for every year married whilst in service. For example, 20 years of service, retired, was married 15 of those years, she is entitled to 30% of the disposable income. SBP is not mandatory, you can have that stopped as part of the settlement arrangement. This is all part of the decree...

Response by SGT Private RallyPoint Member made Jun 8 at 2016 10:15 PM

SGT Private RallyPoint Member — Wed, 08 Jun 2016 22:15:48 -0400

http://www.dfas.mil/garnishment/usfspa/faqs.html

http://www.dfas.mil/dam/jcr:1cbbab12-9765-4eee-8b5f-a6bab98b2e2c/AttorneyGuidance-03-07-2014.pdf

Frequently Asked Questions

Response by LTC Felipe Lara made Jun 9 at 2016 3:08 PM

LTC Felipe Lara — Thu, 09 Jun 2016 15:08:14 -0400

I filed for divorce in Pennsylvania after a two year separation while I was still on active duty. My now ex-wife refused to sign documents. Eight months after I filed for divorce the judge summoned her to see him in his office, he wanted to explain to her what was about to happen by her refusing to sign anything, and she did not show up. I received a one page divorce decree with no addendums. My attorney told me congratulations you keep everything. I am not sure that is the case. During transition point at my retirement on April 2015 I was not obligated to take SBP and because there were no instructions from the court I am collecting my entire retirement. I asked the question, can she come back and do this later, and take part of my retired pay? No answer. Later DFAS granted her 20/20/20 benefits and told her that without a court order specifying what percentage of my retirement was awarded to her she was not going to receive any payments or portion of my retirement pay. I asked my attorney if after the fact, meaning I am retired and receiving full retirement pay, she can now go to court and claim that she is entitle to 50% of my pay. Will the court even entertain such request? Can they grant her part of my retirement after the divorce was final? If so, can they grant her back pay to April 2015? My lawyer told me that in PA retirement is treated as a marital asset and if she goes to court we will go fight her. That is unacceptable to me, now is June 2016 and I am still waiting to get taking to court. Another lawyer tells me that she probably contacted and attorney who told her it cannot be done after the fact, mean after the divorce was final. I am still looking for something in writing to verified all of this. Every month I get paid I am in suspense thinking, will I see have of my pay taking out or no pay due because of back pay. If she went to court and was told too late she won’t tell me of course. I am still looking for closure on this.

Response by SFC David McMahon made Jun 12 at 2016 5:40 AM

SFC David McMahon — Sun, 12 Jun 2016 05:40:19 -0400

I've already read DoD FMR 7000.14 (dated Nov 2014) specifically Chapter 29. This chapter details the requirements necessary to legally be entitled to this money (must meet the time requirements, must be an exact dollar amount in the divorce decree, etc.).

I have a former spouse that asked for my assistance. She meets the time requirements and the specific amount to be paid is listed but when she filed the necessary paperwork, DFAS confirmed the paperwork was all in order BUT she was NOT entitled to any money until the former service member was the age of 60.

1. Despite meeting the 10/10 requirements for a former spouse, I can find no mention of this anywhere. What regulation covers this (so I can look it up myself in black and white)?
2. DFAS informed her to contact the "former spouse department" within DFAS. I, again, can find no mention of this department anywhere. Does anyone have this number?

Thank you for any assistance you may offer.

Response by SFC Private RallyPoint Member made Jun 15 at 2016 4:25 PM

SFC Private RallyPoint Member — Wed, 15 Jun 2016 16:25:11 -0400

only if your married for more than 10 years

Response by MSgt John Butcher made Jun 19 at 2016 3:29 PM

MSgt John Butcher — Sun, 19 Jun 2016 15:29:27 -0400

Depending on how long they were married will determine the percentage of pay.

Response by CSM Darieus ZaGara made Jun 20 at 2020 1:14 PM

CSM Darieus ZaGara — Sat, 20 Jun 2020 13:14:53 -0400

Each Sate has rules. More often than not if you are married for 10 or more years they are going to get half.