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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 19317
Experience:  Lawyer and current JAG officer.
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Is my ex-wife entitled to 50% of my military retirement

Customer Question

Is my ex-wife entitled to 50% of my military retirement pension?
JA: Because laws vary from state to state, could you tell me what state is this in?
Customer: Our divorce was done in Alaska, but I am now a resident of California
JA: Have you talked to a lawyer yet?
Customer: Not on this issue... At the time of my divorce I was in the final year of service. It was not a very smooth break up and I just wanted to get the proceedings over with as quickly as possible. The divorce went final in 2013, but we had been separated since 2010
JA: Anything else you think the lawyer should know?
Customer: Just that I have had a catastrophic financial collapse since the divorce. The cost of living here in California and mounting creditors has forced me to file for Chapter 13
JA: What state are you in? And has anything been officially filed?
Customer: I am in California & yes I have already filed for the bankruptcy
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 question of the division of military retirement isn't one that is answered entirely by military law. Let me explain. back in the 80's, military retirement couldn't legally be divided by state courts, because it was a federal benefit and the rule of preemption doesn't allow a state law to overstep a federal one.

Congress recognized this as an issue and passed a law allowing state courts to divide military retirement. However, while that law allows a state court to divide military retirement, it does not dictate how that division has to take place. All the law does is grant state courts the same right to divide military retirement as they already had to divide civilian forms of retirement.

So, a former spouse is not entitled to any specific result in a divorce and only obtains a legal right to military retirement division if the state court, during the divorce, orders a division in the decree. Your former spouse would be entitled to 50% of your retirement only if your divorce decree specifically states that she is entitled to 50% of your retirement. Without that statement in the decree, she has no entitlement.

If the decree does grant her 50% of your retirement, that grant is permanent unless it specifically states that it is not. It is not an award that fluctuates based on either of your financial positions, like child or spousal support might.

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. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Also, feel free to request me in the future, if you have questions concerning a different matter.