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
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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.
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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.
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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.
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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.
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.
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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
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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
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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.
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SFC J Fullerton
In my state its either contested or uncontested under irreconcilable differences. We are going the uncontested route, so its up to us to agree on the division of assets. We haven't discussed my retirement pay yet, but I am leaning to offering her 50% because A. she is entitled to it and would get it if up to the judge (was married 23 out of the 26 years TIS).
B. If I refused to concede it, probably would become contested and cost more money and drag on
C. We are still close friends, fighting over it would probably ruin any future friendship.
B. If I refused to concede it, probably would become contested and cost more money and drag on
C. We are still close friends, fighting over it would probably ruin any future friendship.
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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!
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That is for the court to decide, any one who tells you differently is probably bluffing.
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SFC J Fullerton
Its to my understanding, in my state, an uncontested divorce is where the two parties agree on the division of property and debts, not the judge. So, whatever our agreement is on retirement pay, the courts and the government have to honor it.
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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.
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