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Marsha411JD
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 17048
Experience:  Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
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My ex-husband and I were married for over 11 years at the time

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My ex-husband and I were married for over 11 years at the time of our divorce. While married he was active duty for 5+ years, did not get picked up for promotion; however upon seperation from active duty he continued as a reservist until he retired as a 05. My question is am I entitled to a portion of his retirement pay and is it pro-rated back to his retirement date? Also, am I entitled to be named for survivor benefits?
Submitted: 9 months ago.
Category: Military Law
Expert:  Marsha411JD replied 9 months ago.
Hello,

Thank you for the information and your question. There is no statutory right to a portion of a military spouses retirement for any former spouse. However, under one law, The Uniformed Services Former Spouse Protection Act, some former spouses are entitled to some extra rights. Those spouses are called 20/20/20 spouses. They would have been married to the servicemember for at least 20 years, with that period of marriage having to have overlapped with at least 20 years of military service. In any event, that law which allows for certain presumptions by a court about splitting the retired pay and also allows the former spouse to receive payment directly from DFAS. In addition, a 20/20/20 spouse has medical and commissary/exchange privileges. There are also some favorable presumptions for 20/20/15 spouses.

In your case, you would not qualify for the specific rules under the law I mentioned above, so unless a divorce court awarded you maintenance/support, you would not be entitled to any of your exhusband's retirement pay.

As for SBP, your exhusband could have been ordered by the court to elect SBP coverage for you, or he could have done it voluntarily when he retired. Depending on how long it has been since he retired, he may still be able to. You can read more about this issue at: http://www.dfas.mil/retiredmilitary/provide/sbp.html

Please let me know if you need any clarification. I would be glad to assist you further if I can.
Customer: replied 9 months ago.

According to the military former spouse protection act that if you and your spouse had been married for at least 10 years that the former spouse was entitled to a portion of the retirees pay. I also did note the 20-20-20 provision as a seperate entitlement. Please clarify.

Expert:  Marsha411JD replied 9 months ago.
The 10/10 rule is only a legal presumption that the courts can choose to use in dividing up marital assets. It is not a guarantee, and the court must have awarded it during the divorce, or a subsequent (if you choose) support action. You can read more about the Act at: http://www.dfas.mil/garnishment/usfspa/legal.html
and
http://www.military.com/benefits/military-legal-matters/uniformed-services-former-spouse-protection-overview.html
Customer: replied 9 months ago.

When you say "subsequent support action," what does that mean exactly? Is it a civil law suit, or something connected to our divorce?

Expert:  Marsha411JD replied 9 months ago.
I apologize for not being more clear about that. What I mean is that you can have your attorney file a petition for support/share of his retirement that would essentially reopen the divorce (support part of it), based on changed circumstances, either yours or his (retirement from military.)
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 17048
Experience: Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
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