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US_JAG
US_JAG, Military Lawyer
Category: Military Law
Satisfied Customers: 58
Experience:  Military prosecutor and defense counsel. AdSep Boards, Courts Martial, NJPs, records corrections.
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My xwife is receiving 37% of my retired pay. Has been yrs

Customer Question

my xwife is receiving 37% of my retired pay. Has been for 9 yrs now. I am filing for some viet nam disability and found out we were married for just 9 yrs. The govt is stopping her receiving anymore money because of the 10/10 rule. They want to send her a letter stating she owes all that money back because they will give it to me. about 50k. I can sign an affidavit stating I dont want the money and the letter of indebtedness will not be issued. I am in a pickle. She doesnt have the money and I dont know what my best course of action is. I am in Okla and she in Ca. My email is***@******.***.
Submitted: 1 year ago.
Category: Military Law
Expert:  US_JAG replied 1 year ago.

Good Evening, I am an attorney with 8 years experience in military matters. I will be answering your question today. The matter of what retirement is owed to a spouse is not exactly up to the military/govt, it is up to the court where the divorce was completed. In your case, it may be that you owed her 37% of your retirement, depending on what your divorce decree/settlement says. The standard equation on how a court would have split the retirement would have been years in service while married, divided by 20 (or total years the retirement is based upon), times .5 (her half of the marital share).

For example, if you were married to her nine years while in the service and retired at twenty, she would typically be awarded 9/20 (.45) x .5 = .225 or 22.5% of the retired pay.

I am not sure where the 37% would have come from. I am guessing because there was a 10/10 in place, that you originally thought you were married for longer than 9 years?

In any case, the amount you owe is not decided by DFAS, but by your divorce decree, so you need to look at that to see what you owed her. If it is 37%, then that is what you owed/owe and the only way to get it changed is to go back to the divorce court (or to get her to agree to a modified settlement and file it with the court).

Also, if DFAS stops paying her directly but your divorce decree states that you owe her X% of the retirement, you will have to start paying her yourself. This gets tricky when your retirement is converted to disability if the disability pay replaces retirement pay, and you will need to speak to a state lawyer for the jurisdiction where your divorce occurred in order to determine the effect of converting to disability. In some places and with some divorce decrees, you can stop paying, in others you will have to continue.

I believe that I have answered your question. If not, please ask for clarification. If so, please take a moment to accept the answer and give positive feedback as it is how I am compensated for my work on this site. Thank you.

Customer: replied 1 year ago.
I guess I will wait and see what happens. Thanks for info. I dont understand how she would get anything if she was not married to me for the full 1 yrs. Do you know an attorney in Long Beach Ca. that I could call if and when she comes after me?
Expert:  US_JAG replied 1 year ago.

Good Evening,

The law that establishes the 10/10 rule is the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 U.S.C. 1408, a summary of which can be found here: http://www.dfas.mil/garnishment/usfspa/legal.html

The law itself does NOT state that your ex-wife gets anything, it simply says that she CAN if a state court orders it and also says that DFAS must make the payments directly to her if she is a 10/10 spouse. If she is not a 10/10 spouse, DFAS is not bound by the state court and will not pay her directly, but YOU are still bound by the state court's order.

If she defrauded you during the original court proceedings/settlement, or new information came to light, you may be able to get your divorce decree modified so that you don't have to pay her as much or even anything, but that change doesn't happen automatically and in order to do it correctly without exposing yourself to risk, you would need to go through the state court, probably with an attorney.

I know the information above isn't exactly what you were hoping to hear, I just want to make sure you have the correct information available to you before you make the decision to just stop paying her. It could be that she doesn't care and won't say anything, but if she does, you could end up owing back-money plus her attorney fees and possibly more (I cannot tell you for sure because I am not a California lawyer) by not doing it the proper way.

Unfortunately, I do not know an attorney in Long Beach to refer you to, but there should be many as southern California is a popular area for military to retire to.

Please let me know if you have any follow up questions. If not, please do take a moment to leave positive feedback. I know this it is not the answer you were hoping for, but it is the legally accurate answer and I would be doing you a disservice if I told you anything else.

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