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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27164
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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My wife was awarded 50% of my military retirement as we divorced

Resolved Question:

My wife was awarded 50% of my military retirement as we divorced at my 10-year mark. She then re-joined the military, and will retire on her own in a few years. Can she receive her own retirement and still get 25% of my retirement on top of that?
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.

I am sorry to have to bear bad news. The statute that allows the court to award a portion of the military pension to a former spouse is called the former spouse protection act. This law allows the court to divide the pension and property (as opposed to alimony or support).

The law can be found at Title 10 US Code Section 1408.

Since the court issued a portion of your pension as property, the fact that she later retired will not impact her ability to continue to draw her portion of your pension.

Again, I am sorry to have to bear bad news.
Customer: replied 1 year ago.


Thanks for your reply. In your opinion, is it worth my effort to hire a lawyer to have the divorce decree adjusted based on the fact that she now has her own military retirement? She was awarded the retirement due to the fact that Texas consideres it part of the marital property, but then re-entered the military as a nurse and an officer from the nursing school that I paid for while married.

Expert:  P. Simmons replied 1 year ago.
Sorry for the delay.

The problem you face is that this is considered community property (marital property)

The court is not going to reduce that award based on her current earnings. It is not like alimony or spousal support where it is based on need...marital property is based on contributions from either spouse during the marriage. She was married to you while you earned the pension, so she gets part of it.

Now...it could be that you are entitled to part of HER retired pension (since you were married to her during a portion of the time she earned that pension).

The problem you have is that in order to get a portion of her pension you would need to have the decree of divorce modified. That is tough to do. Unless you can show fraud on her part during your divorce proceedings the court is unlikely to modify that decree.

Had you asked for it at the time, the court could have held the decree of divorce open pending her potential retirement (to allow you to calculate your portion of her pension). But I suspect that did not happen. And since it did not, it will be difficult, if not impossible, to go back and change it now.

I am sorry to have to bear bad news.

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27164
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.