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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 19181
Experience:  Lawyer and current JAG officer.
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My husband is 100% disabled army retired veteran 20 years

Customer Question

my husband is 100% disabled army retired veteran 20 years service. He is filing for divorce & am wondering if I am entitled to receive 1/2 of his military retirement. We have been married for 44 years in Sept. We have been separated for 10 1/2 years. My previous lawyer said I was not eligible for 1/2 of is retirement pay because of him being 100% disabled.
Please give me some more advice
Thank You
Submitted: 2 years ago.
Category: Military Law
Expert:  Allen M., Esq. replied 2 years ago.

This is actually a commonly confused legal concept. No, you are not "entitled" because that words suggests a guaranteed legal right by statute. That's not how the law works.

All the Uniform Service Former Spouse Protection Act did was grant state courts the same right to divide military retirement as they have to divide civilian forms of retirement in a divorce. So, can you submit a request to the state court for a division of the military retirement? Absolutely. Given the length of your marriage, is it highly likely that you will be awarded 50%? Yes, it is highly likely, but it is not a legal right until the court actually grants it.

However, if all he gets now is disability and not retirement, the court may not choose to divide the disability payments. If he gets both disability and retirement, the court can choose to divide the military retirement, and often does.

Expert:  Allen M., Esq. replied 2 years ago.
I will just add that your previous attorney was not correct in saying that you are not eligible based solely on his receiving disability. That is false.
If all he receives is disability and not retirement, the court is unlikely to order any division.
But if he still gets retirement then you absolutely are still eligible for the court to consider dividing that retirement.

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