I have been married for 16 years. I am currently on active duty and I have 23 years of service. My wife voluntary seperated from me (adandon) for more than 3 years, and currently reside in Michigan. No minor children. she just walk away and left everything. I am preparing to Divorce her. When I retire, will she get 1/3 of my retirement? Does the years of marriage subtract from the 23 years of service, to be actual years ? Does the petition of the USFSPA military spouse act protects me from payment?
State/Country relating to question: Alabama
Thanks for the chance to help. I am an attorney with over 12 years military law experience.The law that covers this is the Former Spouse Protection Act. This federal law allows the state divorce court to "divide" military retired pay (prior to the FSPA this was not possible at all). The FSPA permits, but does not require, a state court to award a share of retired pay. Its something that divorce courts had been doing for years with other pensions...the FSPA made it possible to treat a military pension the same as any other pension.The court typically will award a portion of the retired pay 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.So the 1/3 is not mandated by the code...the court is free to give whatever percentage they like. THey can give nothing..or they can give up to 50%...or anything in between. The code that applies is 10 US Code 1408. If you are in the middle of a divorce, you really want a lawyer who understands this code. They can help protect your pension.
You did not answer my direct question. I do not need a quote from the law. My wife voluntary seperated from me (adandon) for more than 3 years, and currently reside in Michigan.
(1) What happen in Abandonment?
(2) Does the years of marriage subtract from the 23 years of service, to be actual years ?
(3) Does the petition of the USFSPA military spouse act protects me from payment?
Relist: Incomplete answer.Answer all the questions directly and not provide law Qoutes. Everyone case is not the same to just give a standard quote.
(1) What happen in Abandonment?Abandonment can be grounds to request the court lower the percent of her take of your pension.(2) Does the years of marriage subtract from the 23 years of service, to be actual years ?I have no idea what you are asking here(3) Does the petition of the USFSPA military spouse act protects me from payment?No. The FSPA does not protect you in any way.
What I am asking in question #2... while married for 16 years, does that marriage years subtract from my 23 military service years? Since that is short of seven years of my retirement of 23 years, is my pension amount settlement determined 100% of 16 years worth ..... I AM SORRY, I CANNOT EXPLAIN IT OR MAKE IT ANY CLEAR FOR YOU. Don't worry about it.
Thank youNow I understand.And sorry for the confusion.The judge will look at how much of your service overlaps your marriage. In your case, since the service was 23 years, but marriage was only 16 years, I would expect the court to start with an award of 33%. (16/23 x 1/2).But if you look at the FSPA there is NO REQUIREMENT that the court award that amount. That is a common misconception (folks think that the FSPA gives guidelines...it does no such thing).IN your case, if she abandoned you, you can request the court give a lower percent (lower than 33%)
Retired Marine Corps Lawyer, Veterans Services Officer (VSO)
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).