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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
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Experience:  Lawyer and current JAG officer.
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I ETSd out of the military on January 2013 from Louisiana

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I ETS'd out of the military on January 2013 from Louisiana Air National Guard. Based on my points I have earned from my military service it equals to nearly 13 years. I have been married for almost two years while serving in the LA ANG. My soon to be ex-spouses' lawyer hired a pension evaluator and they calculated that she is entitled to $13,388 of my "not yet vested" pension. She does not qualify for the 10/10 overlapping rule to recieve directly from DFAS. Her lawyer is requesting me to pay her outright the $13,388 she is entitled to if I were to retire. I ETS'd and do not plan to complete my remaing 7 years. Do I have to pay? If I don't pay when is she eligible to recieve payment?

Submitted: 1 year ago.
Category: Military Law
Expert:  Allen M., Esq. replied 1 year ago.

Thank you for your question today, I look forward to assisting you. I have nearly 20 years of legal experience in various disciplines, including JAG.

 

Ok, first off, she is not "entitled" to anything.

 

Nothing in the law requires that the court grant here even one penny of your military retirement. The court has wide latitude to do as it sees fit with regards XXXXX XXXXX retirement. So, unless and until a divorce court specifically states in a divorce decree that you owe her, you do not "owe" anything.

 

That being said, it is possible for a divorce court to decide to grant her a portion of your retirement. In that case, while it is true that DFAS will not pay her directly that does not mean that you would not then owe her the funds. If the court grants her a percentage, then you need to pay it. If you don't, you will be in contempt of court and the attorney can use the powers of the court to garnish those funds, your bank account or even jail you for not complying with the court order.

 

But that is only true if you actually retire. When a court orders that you owe a portion of your retirement, you only pay if you retire, so if you ETS before you retire, then she gets nothing, even if she was awarded a part of your retirement.

Customer: replied 1 year ago.

I have ETS'd already and so for now I do not owe anything to her whether the court grants her a portion of my retirement or not. However, if I decide to continue my service with the Air National Guard the remaining 7-years service toward my retirement and retire 20 years. Since as a Guard/Reservist I cannot collect retirement pay until I am 60 years old. Will I need to pay her her portion upon my 20 year retirement or my 60 years of age when I can collect my retirement?

Expert:  Allen M., Esq. replied 1 year ago.

The court could technically state that you would owe her a lump sum, but that is rarely how they do it.

 

More often, they grant a percentage to be paid each month that you receive your retirement, until you pass. That is the only way to truly know your retirement rate, waiting until you actually retire.

 

So, the most common process by far is for you to pay when you receive your retirement.

 

 

Customer: replied 1 year ago.


So which is it, 20 years or when I am 60 years old will she then receive payment? I need you to say it clearly which one.

Expert:  Allen M., Esq. replied 1 year ago.

The court can do either, so it isn't that simple.

 

The court can do three different things.

 

1. Make you pay a lump sum at the time of the divorce based upon a presumed retirement. This is the least likely.

 

2. Make you pay a lump sum at the 20 year mark, when you definitively retire (actually earn the retirement). This is also unlikely, but possible.

 

3. Make you pay a monthly percentage when you start receiving the benefit at 60. This is the most likely result.

Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 15471
Experience: Lawyer and current JAG officer.
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