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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26872
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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How much of my husbands retirement pay do I get after divorce

Customer Question

How much of my husbands retirement pay do I get after divorce and am I covered under his medical plan after the divorce. I have been married to him for 25 years, of which 15 years while he was on active duty.
Submitted: 5 years ago.
Category: Military Law
Expert:  P. Simmons replied 5 years ago.
Can you tell me, have you been divorced, or is it pending?
Customer: replied 5 years ago.
not divorced yet. Seperated. He lives elsewhere with his girlfriend.
Expert:  P. Simmons replied 5 years ago.
Thanks

Most of the pension protections for military ex-spouses were established through the Uniformed Services Former Spouses Protection Act of 1982 (USFSPA). This law was passed to overrule a United States Supreme Court 1981 case, McCarty v. McCarty, holding that military retired pay could not be treated as marital property in divorce. USFSPA allows a state divorce court to award a share of a member's pay as marital property.

USFSPA generally permits, but does not require, a state court to award a share of retired pay. The treatment of military retired pay differs from state to state. In most community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), a portion of the military spouse's retired pay will be considered the property of both spouses, and the non-military spouse will be entitled to one-half of that portion. The portion will generally be based on the number of years of marriage during which the retired pay was earned, divided by the total years of service. If the spouses were married for at least ten years while the member was on active duty, the non-military spouse will qualify for direct enforcement, which means that his or her portion of the retired pay will be paid to him or her directly by the military finance office.

Most non-community property states will award a portion of the retired pay to the non-military spouse. A few states treat military retired pay as the property only of the military person. But usually in those states, the judge must consider the retired pay received by the military spouse when setting the amount of alimony.

What the USFSPA actually states is that the Defense Finance and Accounting Service (DFAS) will pay directly the former spouse's share of the military retirement if there were at least 10 years of marriage overlapping 10 years of creditable military service (the 10/10 rule).

If the former spouse satisfies the 10/10 rule, the spouse can apply for direct payment from DFAS of his/her portion from the division of military retirement (if Army, Navy, Air Force or Marines), at:

ATTN: DFAS-CL-GAG
Assistant General Counsel for Garnishment Operations
Defense Finance and Accounting Service - Cleveland Center
PO Box 998002
Cleveland, OhioNNN-NN-NNNN





BOTXXXXX XXXXXNE

In the divorce proceeding, you need to make sure the court orders a percentage of his retired pay, to you, as community property.   Once you have this you can apply to DFAS for direct payment






Please let me know if you have further questions; if so I will do my best to answer them. If not please hit the accept button, its the only way I get credit for my work.

Customer: replied 5 years ago.
Do you know what the percentage might be and what about medical coverage.
Expert:  P. Simmons replied 5 years ago.
how many years did he have at retirement ?

all active duty?
Customer: replied 5 years ago.
I was married to him for 15 years while he was in active duty. He was in the militairy for 23 years before he retired.
Expert:  P. Simmons replied 5 years ago.
You should petition the court for at least 32%

15/23 * .5 = 32%

You would not be eligible for tri care since you do not have 20 years of marriage during his active duty time. This is a requirement


Customer: replied 5 years ago.

Thank you. I expected it to be so. Just need to figure out how to get medical coverage in the divorce. Right now the situation is status quo.

If I am not mistaken, I do get 1 year of transitional medical benifits from the militairy though. Is that not correct?

 

Medical coverage is important to me due to the fact that he left me with a condition that requires medication for the rest of my life.

 

 

Expert:  P. Simmons replied 5 years ago.
I do not believe you will rate transitional benefits. I could not find anything on the Tricare state that would support this.

You should make this in issue in the court so that, if required, the court can increase your support or percentage of retired pay to allow you to obtain insurance.





Customer: replied 5 years ago.

ok. Thank you again for your help. I will have to do a lot of thinking.

 

Customer: replied 5 years ago.

I am going to have to ride the wave, so to speak and let him do the filing. He does not seem to want to do so. This way I will have my medical benefits and try to go on with my life. It has been this way for 3 years already and I do not have any plans of remarrying.

 

If I do go thru with the divorce, would I loose 32% of his retirement?

Expert:  P. Simmons replied 5 years ago.
Well, without a divorce decree, you will not be able to have DFAS send you the money...nor will you have a court order forcing him to pay you...so I suspect the answer is yes.

Still, you may be able to negotiate with him...offer him to pay you, say 25% or any # XXXXX can agree on, stay married...that saves him and helps you as well.

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