Can my ex-spouse get my military retirement even though it was listed in our divorce decree that she would not seek it. We were divorced in December, 2001
Oak Grove, Kentucky
Nothing really. I got a divorce in December, 2001 and was married for 20 years. It was added in the divorce decree that she would not seek out my military retirement. Approximately two years after the divorce, she attempted to get it and JAG at Fort Campbell told her she couldn't. Just wanting to confirm she can't get it because I will be retiring in the next couple of years.
Here is some background information for you
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)
So, if your wife qualified AND if the divorce court granted her a share, then your spouse would be able to apply to DFAS for a portion of your retirement. HOWEVER, if your divorce is over and this was not addressed, it would be very difficult to change this. Your former spouse would be required to petition the court to modify the property settlement of the court. Absent showing of fraud, the court will not likely do this
BOTXXXXX XXXXXNE: its difficult if not impossible for your ex wife to get any of your pension now...but if you find yourself headed to court, make sure you get a good lawyer to make sure you win
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.
Retired Marine Corps Lawyer, Veterans Services Officer (VSO)
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