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legalgems, Lawyer
Category: Military Law
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I separated from my spouse in Mar 97 in the State of NC

Customer Question

I separated from my spouse in Mar 97 in the State of NC which has a one year, one day requirement before the divorce will be granted, subsequently being granted a divorce in Mar 1998. We married in Jun 87. First question: Is my former spouse entitled under the 10/10 rule to a portion of my retirement?
- At the time of the separation I had 13 years of active duty (credible service) and was a Army Captain. On the date of divorce I was five months short of completing my 14th year in uniform. I went on to serve 32 years in uniform retiring as an Army Colonel (06) Sept 2016. Second question: Is my former entitled to 20% of the 13 or 14 years or 20% of my 32 years?
- thoughts?
Submitted: 9 months ago.
Category: Military Law
Expert:  legalgems replied 9 months ago.

Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

Customer: replied 9 months ago.
In addition to speaking to a DFAS para legal, I sent her a copy of the State of NC Certificate of Absolute Divorce
Expert:  legalgems replied 9 months ago.

Thank you;

this would be under the jurisdiction of the NC court that issued the order, as it deals with marital property that was divided at the time of divorce.

Military retirement pay can be accessed by a former spouse in 2 ways, one as a property division, one as alimony/child support. The Uniform Services Former Spouses' Protection Act applies to any military marraiges after June of 1981 and is codified at 10 USC 1408.

The 10/10 rule does not require the parties to be married for 10 years and to have 10 years of military service in order to allow the former spouse benefits; rather, that is the threshhold that must be met if the former spouse wishes to have direct payments, versus having it disbursed to the military member and then sent to the former spouse.

In order to have the protection of hte Act, the order/judgment must state it as a property award, and it must either express a fixed dollar amount, or a percentage of disposable retired pay. If the military spouse is still on active duty, it can be by a formula or by a hypothetical retired pay award. Either way, it would be based on disposable retirement pay. Unlike civilians, a QDRO is not required.

Normally the former spouse is only given credit for the property interest that accrued during marriage, and the state has determined that marital property is property acquired after marriage and BEFORE the date of SEPARATION - please see this statute for a reference on this. section 50-2-(b)(1)

So if the decree does not have a formula or a hypotehtical retired pay award, one would need to seek clarification; but the court would not give the former spouse credit for retirement pay earned either before the marriage, or after the date of separation. Some courts will take a wait and see approach (given all of the variables involved in retirement pay) which then does require the parties to go back to court years later. So even though that is frustrating, some courts prefer that to ensure a fair division.

The court that issued the decree has continuing jurisdiction over the issue. Here is a link to the state bar attorney referral:

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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.

Expert:  legalgems replied 9 months ago.

Hello again; just checking in to see how things worked out;
if you have further questions please don't hesitate to reach out to me here on Just Answer.

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