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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27157
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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My spouse entered the military in 1983, we married in 1993

Resolved Question:

My spouse entered the military in 1983, we married in 1993 and he retired in 2004. We are going through a divorce, what are my entitlements?
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

Ma'am, the short answer to your question

what are my entitlements?

is "whatever the court gives you"

There is no mandatory entitlement (save one I wil discuss below). Not for your instance, since your marriage is not long enough to qualify for an ID card (and commissary/TRICARE/PX benefits that come with an ID Card)

So when you ask "what are my entitlements" the answer is under federal law, there are none (again save the one I will discuss below)...at least not any that are required by federal or state law.

That said, you will certainly be eligible for a portion of his pension.

How much?

Well...that depends.

a divorce can either be contested or not contested.

Uncontested; Now the fastest, (and by far the least expensive) way to get a divorce is if you can agree on the terms. If you can agree on "who gets what" there is not a need for attorneys...this will cut the costs to a very small amount (court fees)

Contested; if you can not agree, this is a contested divorce. To proceed you need an attorney or need to act as your own attorney (very bad idea). Here the parties present evidence to the court on "who gets what" and the court decides. This takes longer and involves attorney fees for both sides.


SO, if you can agree with your "soon to be ex" on who gets what, great! If not, you need an attorney.

The federal law that applies is found at title 10 US Code section 1408 and is called the FSPA (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.

There is a good overview of this law here:

http://www.dfas.mil/garnishment/usfspa/legal.html

But even better, take a look at the actual law...its not complex and you can see exactly what it allows.

http://www.law.cornell.edu/uscode/uscode10/usc_sec_10_00001408----000-.html

I want to stress that since MD is an equitable distribution state, the court is not required to give you half, or a quarter, or really any of his pension. But since your marriage was over 10 years, I would expect them to give you a portion.

Most commonly the court will give you 1/2 of the portion attributable to your marriage...so in a 10 year marriage where the member retires at 20 the spouse would expect 25% or so of the pension (1/2 of 1/2)

One good thing for you...and actually an entitlement is that any amount or percent the court orders, you are entitled to direct payment from DFAS (military pay) since your marriage overlaps his service by 10 years.

Consider having a lawyer who understands 10 USC 1408 assist you in this process...even if you agree the lawyer can make sure the court gets it right an you get your portion of the pension, whatever the court grants

Let me know if you have more questions...happy to help if I can
Customer: replied 1 year ago.
He retired in 2004 and we are still married, I'm not entitled to more of his pension?
Expert:  P. Simmons replied 1 year ago.
Ma'am the pension portion comes from the portoni of the marriage he served on active duty.

What you describe your marriage overlapped the active service only 11 years...so I would expect the portoin to be approx 25%

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27157
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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P. Simmons
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Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.