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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 19021
Experience:  Lawyer and current JAG officer.
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Are you able to give any guidance on military divorce? I

Customer Question

are you able to give any guidance on military divorce? I have one simple question.
is there a minimum time frame a service member has to be married before a spouse has any entitlement to retirement pay? my son, a Marine, has been married 4 1/2 yrs and the base is telling her she is entitled to 11.25%. I've been looking in the DOD FMR and USC codes/regs and can't find anything specific. thank you.
Submitted: 1 year ago.
Category: Military Law
Expert:  Allen M., Esq. replied 1 year ago.

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

The term "entitlement" isn't really appropriately used here. A former spouse doesn't obtain an entitlement, regardless of the length of the marriage, until a court order actually grants that entitlement.

However, to be eligible for consideration by the state court for an entitlement, there is no set period that the marriage has to last for the state court to have the right (not the obligation) to consider a division of the military retirement.

Now, when states consider granting a portion of military retirement, they will often use formulas that take into consideration the total marriage overlapping military service against the total military service. Assuming 20 years as the minimum, and a court granting an entitlement here, 11.25% is a figure that the court could come to. She is not NOW entitled to it, but it is a figure that takes into consideration the short marriage and a 20 year retirement.

The court could grant her that. The court could grant her 50%. The court could grant her 0%. Any of those figures is possible and legal, because all the law does is grant the state court the right to treat military retirement just as it treats civilian retirement...as a shared and divisible asset, if the marriage merits it.

Now, there is a rule that states that DFAS will only pay a former spouse directly if the marriage was 10 years, but that does NOT mean that an award can't be granted by the state court. It just means that the military member would have to cut the checks rather than DFAS doing it automatically. It is not a prohibition against an award.

If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Also, feel free to request me in the future, if you have questions concerning a different matter.

Expert:  Allen M., Esq. replied 1 year ago.

The applicable statute is call the Uniform Service Former Spouse Protection Act.

Within it, you'll see lots of entitlements created by a certain time frame of marriage, like Tricare for life and PX privileges, but those do not related to the potential of retirement division.

You'll also see the 10 year rule, which I mentioned above and relates to DFAS paying directly and not to the court's right to consider division.

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