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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 13564
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I am having several problems dividing the military

Customer Question

I am having several problems dividing the military retirement. One being I am still on drill status and have not retired. Two attorneys that I have spoke to are attempting to divide my military retirement in a way that gives my wife post divorce interest in my Air National guard retirement, I contacted DFAS and they inform me that due to the fact I am not retired from the Air National Guard at this time the formula below it what should be used in the court order
“The former spouse is awarded _____% of the disposable military retired pay the member would have received had the member become eligible to receive retired pay on _____________, with the rank of ________, with _______ reserve retirement points, and with _______ years of service for basic pay purposes.” If the court order directs us to calculate a hypothetical retired pay amount using pay tables in effect at the time the member becomes eligible to receive retired pay, the court order must provide us with: 1) the percentage awarded the former spouse, 2) the member’s rank to be used, 3) the reserve retirement points to be used, and 4) years of service for basic pay purposes. We will make the hypothetical retired pay calculation using the basic pay figure from the pay tables in effect at the member’s retirement for the rank and years of service given in the court order, regardless of whether the member entered military service before September 8, 1980, or on or after September 8, 1980.
I was instructed by the other two attorneys to use a different formula that as I previously stated would give my ex-wife post divorce interest in my retirement. My original divorce decree dose not address this retirement and only "states government retirement" it is not clear if they are addressing the military requirement or the Federal Civil service retirement.
I also asked DFAS to confirm the statement below. DFAS told me this was correct and the statement must be in the court order of they will divide the retirement pay at the reduced retirement age and not at age 60 if this statement in not in the court order.
If the marriage was entirely before 1/28/08, then the before age-60 retirement payments were earned only after the marriage, so the benefit would be retained 100% by the military member. No matter what formula is used to determine a division percentage, the division order must specify that no division occurs until member age-60. Caution: If the division order is silent on this issue, all retirement payments will be incorrectly divided by DFAS, so the order must state that payment division will begin only upon the military member reaching age 60. If DFAS will not change their payment destinations at age 60, then the division order must state that the ex-spouse return payments to the military member each month before age 60.
The other two attorneys that I spoke with told me that they could not put any statement in the military division order that would prevent my ex-wife from getting this early retirement age benefit. I am kind of confused at this point.
Submitted: 3 months ago.
Category: Military Law
Expert:  Phillips Esq. replied 3 months ago.

I have carefully reviewed your post. However, I did not see a specific question. What is your question?

Thank you for your cooperation.

Customer: replied 3 months ago.
I am in the Air National guard and qualify for the early retirement benefit by the law enacted in 2008. This benefit and all of the qualifying time for the early retirement was earned post divorce . How do I write a military division order to state that she is not entitled to the early retirement benefit and will not receive her portion of the retirement until the normal retirement age of 60 years of age.

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