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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 33285
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Customer Question

I don't understand what I can or can't deduct on militray retirement pay to ex spouse? I was ordered as part of our divorce to have DEFAS pay my ex wife 42% of my retirement pay and I have been doing this since 2002. I undersdtand I get a 1099R showing the portion I recieve along with the taxes I pay in Federal and state taxes. Since this is my retirement pay and 42% going to her can't I deduct this amount somewhere on my Federal and stae taxes? I have never deducted any of this money she has been receieving since this started. I am hearing now that I should be able to claim this 42% as alimony to her? XXXXXX  XX  XXX  XXXXXXX  XXXX  XXXXX  XXXXXXXXX

Submitted: 3 years ago.
Category: Military Law
Expert:  P. Simmons replied 3 years ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

Is she getting paid direct by DFAS (they send her a check each month)?

Or do you pay her each month?
Customer: replied 3 years ago.

Yes DFAS sends her a check every month for her portion of the 42% of my retirement pay. I recieved my 1099R for 2012 showing what I recieved and paid in Federal and state taxes.

 

I belive she also gets a 1099 form from DFAS showing what they send her each year.

 

Vic

Expert:  P. Simmons replied 3 years ago.
Thank you

That is the key...the key is what YOUR 1099 states for income.

It SHOULD state just your portion (the 58% of the gross). That is since division of the military pension is allowed under Title 10 US Code Section 1408. This law gives the court the power to divide the pension as property. It is NOT alimony. It is a division of the marital assets.

So as I mention, if DFAS is doing their job, they should be taxing you on your portion and her on her portion.

Now...if this is not happening? Then you want to contact DFAS and have them fix it.

Again, the law that covers this, Title 10 US Code Section 1408 is very clear...it allows the court to divide the military retirement pension as property. Since it is divided as property she is taxed on her share and you on yours. You should NOT be taxed on her share...so your 1099 should show your portion (58% of the total) as the tax basis for you. IF they are not doing this? Contact DFAS and demand they fix it.

BotXXXXX XXXXXne: division of the military retirement is not alimony. It is a property division...so both parties pay taxes on their respective share

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