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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26320
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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My husband went into the Navy November 1982, we married July

Resolved Question:

My husband went into the Navy November 1982, we married July 1983, he retired November 2002 with 20 years of service. We are divorcing this year July/August 2013.
My question is this...am I "entitled" to part of the pension and if so in what percentage and then am I eligible for survivor benefits?
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 can you tell me, in what state do you plan to divorce? PA?
Customer: replied 1 year ago.


Yes, Pennsylvania.


He lives in Florida but all plans are through PA.

Expert:  P. Simmons replied 1 year ago.
Thank you

I ask since PA is an "equitable distribution state" when it comes to division of marital property. So the court has leeway (is not required to divide 50/50 like in a community property state

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.

There is a good overview of this law here:

http://www.dfas.mil/garnishment/usfspa/faqs.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


As well, if you have 20 years of marriage during service, you will qualify as a 20/20 spouse which gets you TRICARE coverage and commissary and PX benefits.

and you can see the law that applies here


http://www.law.cornell.edu/uscode/10/1072.html



http://www.law.cornell.edu/uscode/10/1062.html


You ask (in effect): what is the formula? Answer: There is not one...at least not one that you can bank on...the court can consider all relevant information...so it would not be valid for me to give you a formula and tell you the court will apply it.

The key point is the FSPA does NOT require the state court to give a specific portion...or any portion at all really...BUT it will allow the state court to divide the pension.


I would argue you should get 1/2 of 100%, or 50% of the pension. This is since you were married for 19 of the 20.


If you do not have an attorney, you would do well to retain one to assist. One who understands the FSPA. Even if you can agree otherwise. That is because the attorney can help you put the agreement into a format that ensures it is enforceable down the line.

And that leads to SBP. SBP is the Survivor Benefit Plan. It is basically an insurance policy that will allow spouse and dependents to collect a portion of the retired pay on the death of a member. SBP has been around for approximately 30 years. If you were married when your husband retired from the military and it was within the last 30 years, there is a possibility that he purchased SBP. IF he did ? That is great...you want the court to order him to keep you as beneficiary. If not? You may want to consider asking the court to order he maintain insurance on his life with you as beneficiary since his pension dies with him.


BotXXXXX XXXXXne:

Since your marriage did not overlap his service 20 years you are not eligible for Commissary/PX benefits. But you are eligible for a portion of his pension...the court will determine how much. And you should ask for SBP.
Please let me know if you have more questions...happy to assist if I can
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26320
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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