From The Mailbag: Retirement and Divorce

A reader wrote in asking about the division of military retirement in a divorce.  I have edited this email to remove personally identifying information and to make it more clear, but the gist is definitely still there:

I am a MSG who will be retiring this year with 20 years of service.  I was married for 17 years and have now been divorced for five years.   My divorce decree does not say what amount of my retirement she is to receive.   How is the formula calculated?  J

The writer is talking about the fact that courts are entitled to divide retirement pay when dividing other marital assets in a divorce.  In this situation, the divorce decree does not designate any portion of retirement pay to be paid to the former spouse.  The law states that the division of military retirement pay must be designated at the time of divorce, and it can not be renegotiated later.

This is a frustrating point for many divorced service members and their former spouses.  In most situations, it is the former spouse who later realizes that they could have fought for a portion of the retirement assets  However, former spouses also sometimes discover that the division of retirement pay isn’t always as rosy as it appears, and they would have preferred some other division of assets.  At the same time, it can be the retired service member who discovers that they agreed to divide pay when they didn’t mean to, or that they would have rather divided retirement pay than given other concessions.

This reader question emphasizes the importance of having divorces handled by competent attorneys who thoroughly understand all the many nuances of military benefits and how they can be divided and impacted by a variety of different variables.  There is no single right or best way to divide assets when a marriage dissolves, and it takes compromise and understanding to come up with a settlement that is equitable and appropriate for the situation.

As for our reader, J, he will not have his retirement pay divided because it is not designated in the divorce paperwork.

If you are divorcing, and a military retirement is in your future, be sure to consider this subject carefully.  It’s a big issue and you only get one chance to get it right.

About the Author

Kate Horrell
Kate Horrell is a military financial coach, mom of four teens, and Navy spouse. She has a background in taxes and mortgage banking, and a trove of experience helping other military families with their money. Follow her on twitter @realKateHorrell.
  • guest

    No offense, my husbands divorce decree had nothing in it pertaining to amounts, in fact there was nothing related to retirement benefits at all in the decree…She re sued TEN years later and was able to receive a portion of retirement based on the fact that it was “overlooked” (aka never addressed in a waive or not waive statement) in the original divorce. So this advice may not be true in all states.

    • Kate

      Guest, I would love to learn more about this. This is the first time I have heard about this type of situation, and I have a lot of questions.

      • ROGER

        MAY BE UPDATED, AND DIFFERENT IN DIFFERENT STATES, BUT IN NORTH CAROLINA THE FORMULA WAS 50% OF THE AMOUNT CONSIDERING YEARS MARRIED ON ACTIVE DUTY, I.E IN THE CASE STATED THE PENSION AFTER 20 WOULD BE 50%, THEN THAT AMOUNT WOULD BE SPLIT WITH HALF GOING TO EACH IF THEY WERE MARRIED TO EACH OTHER THE ENTIRE 20 YEARS, IF NOT IT WOULD BE REDUCED TO THE DEPENDENT, I E SHE WOULD GET 75% OF 50%, FOR THE 15 YEARS MARRIED, WHILST ON ACTIVE DUTY

        • USFSPA Killer

          Military retired PAY is N-O-T a “pension” ! ! ! It’s reduced CURRENT PAY for reduced CURRENT SERVICE !

    • et52

      This is happening to me! My attorney didn’t know you have too put it in the decree “overlooked” so now ex has Alzheimer’s and has secretly remarried someone on Match.com who has changed all his benefactors. We were married 17 military years and 22 years total. Lawyer said tough luck and won’t take it to court, afraid he will lose. Is there a case # you can share with me?

      • USFSPA KIller

        If your ex’s lawyer is smart enough to know there is NO TIME LIMIT on relitigating a divorce to initially include division of military retired PAY, then be prepared to get yanked back into court ! Remember the USFSPA only ALLOWS division, it does NOT REQUIRE it !

      • guest

        Nope, I wouldn’t share it with you in a million years, I think it’s a freaking travesty that this is allowed to happen, there is no way greedy ex’s should be able to come back DECADES after a divorce to sue for the pension. It’s public record, feel free to pay a 300 dollar an hour attorney to look it up for you.

        • USFSPA Killer

          Then if it’s such a “travesty” – which it is – then why aren’t more retirees banging on their federal lawmakers office doors to repeal the law ? Bunch of lazy ” I don’t care, let someone else do it”! And this is EXACTLY why the USFSPA has lasted over 30 YEARS ! ! ! ! !

          • guest

            for everyone banging on the door there is their spouse banging on the same door saying don’t repeal it…it’s a zero sum game.

        • USFSPA Killer

          Again – miltary retired PAY is N-O-T a “pension” – period, end of discussion !

  • Concerned Veteran

    I would have to agree with the above comment regarding a former spouse coming back years later to sue for a division of Retirement pay. The courts are more prone to favor the former spouse. Currently there is no “statute of limitations” for a former spouse to sue. In addition the courts are also dividing VA Disability circumventing federal law in the guise of lifetime alimony as well. The big winners in a military divorce are the attorneys who make a lucrative payday from a guaranteed stream of revenue from the Federal Govt off the backs of veterans. The USFSPA really needs to be rescinded or at least modified to reflect current social aspects.

  • Rick Brannan

    I negotiated it when divorced 8 years after retirement. I agreed to her getting 35%, however, she lost all other benefits since I retired early under the drawdown during the Clinton years in the White House. So, she only got 35%, no medical or dental benefits and once I die she has to not be married to continue receiving it. She remarried less then one year after the divorce. So she will have to divorce or he will have to have died in order for her to get the SBP once I die.

  • Jimenez, Peter

    HALF. Married ten years or more allows them to apply for HALF. At that point courts system consider them as part of your career builders. So there entitled. Makes no sence at all, but wait it doesn’t stop there, your new relationship will treat you like crap when they find out . Think of it as Adult Child Support for the EX.

    • Kay

      I was just told that they don’t go by half anymore. They go by something 2-2-20 or something like that. I have been married to my husband for 23 years. He retired in 2006 . Which made him have 22 1/2 . They said since we were only married 17 years while he was in active duty. I don’t qualify for medical or they didn’t mention anything. He retired E-7. With me unable to work they say no alimony. He took me off his SRB and we aren’t divorced.

      • Kate

        Kay, you are talking about a couple of different issues here.

        The eligibility for continued military benefits after divorce is based upon the 20-20-20 rule, which states that if you were married for twenty years, the service member served for twenty years, and there were twenty years that overlapped, you are eligible for indefinitely continued medical and shopping privileges. There is a 20-20-15 rule, under which you qualify, that gives you continued medical privileges for ONE year. You can read more about this here: http://www.militaryfamily.org/your-benefits/marri

        Issues regarding alimony and the SBP would be addressed in a separation agreement or divorce decree. This is a civilian matter and has nothing to do with the military.

        I strongly encourage you to retain an experienced divorce attorney so that your interests are protected in your divorce.

        • James

          If you are in NC, I recommend Sullivan & Tanner . They are outrageously expensive – we paid close to 10K for divorce. May have been on his feet in the courtroom less than 5 minutes, filed 2 documents that were a total of 2 pages each but charged out the wazoo for travel and pretty much sneezing. Due to the lack of understanding of the military divorce, I originally went to JAG and they were helpful but DEAD wrong on the law. I was 18 years in with a break in service. We were married for 21 years. My service overlapped six months less than 10 years for the 10 year rule. She got zero of my disability (legally correct). All property was divided before the actual divorce. That is when she decided that she wanted post-separation support – 3 years after the separation – and 50% or more of my retirement and alimony. We have NO children. JAG had me giving her almost 40% of retirement. She got exactly what she was entitled to – no more – no less. Cost a fortune to tell her that.

          Also, it is true that you can ask for anything in a divorce settlement but this is where it is really need to stress upon the attorney to be a good steward of YOUR money. We are pleased somewhat with the outcome but terribly disappointed in the attorney seemingly taking advantage of a service-connected disabled Vet with such outrageous charges.

    • Kate

      Mr. Jiminez, this is not accurate. The only milestone that occurs at ten years is that a former spouse will be eligible for direct payments from the Defense Finance and Accounting Service.

      Any spouses, in any marriage (civilian or military) can ask for anything in a divorce. The final settlement agreement is determined between the two parties and if they can not agree, it will be decided for a judge. There is no evidence that the courts specifically use ten years as a determiner, though individual judges may do so.

    • Angie

      Peter, that is not true. I just went through my divorce and in order to receive half of the retirement, one has to reach the “20-20-20” mark. The three “20’s” mean the for­mer spouse needs to have been mar­ried to the ser­vice mem­ber for 20 years, the ser­vice mem­ber had at least 20 years of ser­vice cred­itable towards retire­ment, and there had to be at least 20 years where the mar­riage and the cred­itable ser­vice over­lapped. “Over­lapped” means the two were mar­ried and in cred­itable mil­i­tary ser­vice at the same time. If the for­mer spouse meets these qual­i­fi­ca­tions he or she would be enti­tled to full mil­i­tary ben­e­fits. How­ever, upon remar­riage the for­mer spouse would per­ma­nently lose med­ical ben­e­fits. All other ben­e­fits could be recov­ered if the mar­riage ends in death or divorce.

      There is a formula for all other %’s of the retirement benefit for the former spouse. I am entitled to 50% because I had 27 years of marriage and we overlapped 26 years of service.

      • Kate

        Angie, I think you are mixing up two different sets of rules and regulations. The 20-20-20 rule is applied to military benefits, such as medical/Tricare and shopping privileges, as you stated. It has nothing to do with the division of retirement.

        The division of retirement is up to the court that decides your divorce. Division of retirement can be claimed for any marriage, though sense says that it should not apply to short marriages and should be considered as part of the total separation of marital assets. There is no formula (unless the courts in your state or county use a particular formula) and it is not decided by the military in any way, shape, or form.

        The ten year rule applies to the ability of the former spouse to apply to have their allocated portion of military retirement paid directly from the Defense Finance and Accounting Service (DFAS). If the marriage lasted 10 years, the former spouse can be paid directly. If the marriage did not last ten years, then DFAS will not separate pay even if the court order says that it should. At that point, the physical movement of the money becomes the responsibility of the service member.

      • dean

        Had the same experience. Married 34.5 years. My ex was 8-20 VA. Once divorce was completed no compensation, no benefits, etc. She only served 5 years and was on medical holding for a total of 6.5 years. Since she did not serve 20 years, the 20-20-20 did not apply. VA benefits are untouchable in Texas. So it goes.

      • USFSPA Killer

        Angie – come back to the REAL world ! You are wrong on the 20/20/20 being a requirement to apply for and receive a division of military retired pay as “jointly earned property” (only via the unconstitutional USFSPA!). There are former spouses getting payments from DFAS because their marriage and their military spouse’s service time overlapped by 10 years or more. There are also former spouses getting a check in the mail from their former military spouse because their marriage and service time did NOT overlap by at least ten years. By-the-by, you are NOT “entitled” to any percentage, you get what a divorce court ordered what you get.

    • USFSPA Killer

      The “10 years or more” service/marriage overlap is ONLY to allow DFAS to operate the garnishee order. There are MANY retirees whose service/marriage over lap was LESS than 10 years and now “put a check in the mail” directly to their ex-broomrider ! DFAS has no count of these casualties as DFAS refused the orders and doesn’t keep track of them.

  • Rudolph Gibson

    My ex wife tried to receive a portion of my disability pay after we had been divorced for 11 years. The attorneys had the payday not her.

    • Martin Brauchle

      My ex-wife (we were married 11 years) is coming after me 32 years after our Final Divorce Decree from Bell County, Texas. Her lawyer is trying to claim the court “failed” to divide my Retired Military Pay while I was still on active duty. What gives? Any help out there?

      • Kate

        Martin, up until a few weeks ago, I would have said that would never happen. However, one reader did tell me that this happened in her husband’s situation.

        My guess is that your ex-wife’s claim will fail, but it seems like strange things can happen. I think that if you and your lawyer can show that your military retired pay was considered when determining the division of assets in your divorce, that would be a help to your case.

        I am hesitant to comment on division of property and assets in a divorce, especially when I don’t know the situation. You’re going to have to trust the judge to make a good decision.

        Good luck!

        • Martin Brauchle

          Thanks Kate. My lawyer in Texas (I live in Kentucky) is going to question the Texas Courts Jurisdiction over me as well…………..

          • guest

            I was the one that had it happen to my husband, his was in the state of FL and she received a portion, it’s currently under appeal. He got screwed because the decree didn’t say a word about the pension or other retirement benefits, since there weren’t any at the time, therefore the FL judge said it was a topic left “un addressed” and still open to interpretation. If she had any money at the time in retirement accounts it would have opened her up to a splitting of those funds as well according to our lawyer. However, all she had was a quarter million in consumer debt. It wasn’t until he came close to his 20 (still active duty) that she came back with her hand out (currently in her third marriage mind you).

            I would fight Texas jurisdiction too, they are infamously pro ex in most matters that I’ve heard about.

            The good news is, if you are receiving disability payments, those cannot be split in a divorce decree, also, she’s had 32 years since UFSPA came out to argue this, she chose not to until now, just don’t skimp on a good lawyer.

          • Martin Brauchle

            Dear Guest – Thanks! Definitely not skimping on a good lawyer in Texas. Not once in 32 years has she ever approached me on the subject of dividing my retired pay. She to had three failed marriages, all to Army Non-commissioned Officers…. I wonder if she is suing the other two as well?

          • guest

            Might be worth looking her up in PACER if you know what names she went under with the ex’s. It’s a legal database that all the lawyers use. It charges .10c a page for search access but if it’s under a $20 total (i think) per quarter there is no charge (and we have just a couple of weeks left in this quarter).

            Also if you know what counties she lived in with them, or where she filed, the vast majority of civil cases (like divorces etc) are now fully accessible for free online access so you can check and see if she has filed against them. KY doesn’t currently have this feature (that’s where my husband married his ex 15 years ago). It’s generally as easy as typing in X County court office and looking for a database.

            The one question that may influence it would be if you got divorced before USFSPA came out. If so, she may be able to fight it on grounds that it hadn’t been federally permitted to be divisible at the time of your decree. GOOD LUCK!

          • USFSPA Killer

            UNfortunately, the USFSPA limited “back” claims to just two years before it’s effective date of 25 June 1981. If you were divorced before 25 June 1979, the USFSPA won’t grab you !

  • Liz

    I divorced my husband after 15 years of marriage all in the military. I was also in the military. Nothing was mentioned in our divorce about division of retirement. I felt I would not want someone getting half of my retirement. If the couple has children I feel they should share equal in the cost share until they are 18 or out of school. If I divorce someone why would I want that part of them if I am perfectly capable of taking care of myself . The only division should be what exists at the time of divorce. I know I am different but I am also proud to take care of myself. I do think from time to time I “should have” done this or that because as you get older and really retired from work the money is scares. So my suggestion is : Before you go after someone’s retirement be sure you really can not take care of yourself. It is not about getting even but self respect. The military needs to change this 1/2 “entitlement”. I am sorry if people object but when I see a woman receiving money from a military ex-spouse and they are not actively working when they can..they will not be my friend ever. P.S. my husband and I were enlisted.

    • Joy

      I thought just like you, my pride was in the way. I was earning good money three children and after being married 18 years while he was in the Military.

      In the divorce, I ask for $600 child support for the three children knowing that he would meet someone else one day and would have to provide for a new family. He served a total of 22 years remarried adopted her son gave him his middle and last name, stopped paying child support once he retired , also discovered that he did not include the percentage that I was to get once he retired in the divorce papers. This was in 1999 I am now unemployed, and have health issues and need financial help. He is in Texas somewhere on his 3rd wife that has 3 children. I looked at his retirement would be a fund for me and the kids in the future ……..

    • USFSPA Killer

      Liz – You are one of the very few that has your head screwed on and your feet on the ground – ! Congratulations ! By-the-by, the USFSPA – the federal law – limits what DFAS can divide (50% “property”, additional 15% for child support if ordered) from military retired pay, irregardless of what the court order says. Usually, the retiree is ordered to make up the difference by putting a check in the mail if the order requires more than 50%.

  • Charlie

    What is specifically being discussed here is when the decree says the retirement pay must be split but doesn’t say how much. The fact that it mentions it and addresses the pay means that it was negotiated, and that is a one time deal. When the paperwork doesn’t mention the retirement pay at all is when the spouse can come back years down the road to address it.

    Ultimately this is why you pay for a really, really good lawyer who can sneak this in under the radar with very vague language so the service member doesn’t lose their retirement pay. It’s your service, your pay, the spouse isn’t entitled to $%&#.

    • USFSPA Killer

      DFAS has very specific rules about how court orders are worded to enable acceptance. They usually more often reject many grey worded orders and tell the applicant to get a clarification order from the issuing court which should have acceptable wording in it like their “Instructions to Attorneys” shows.

  • Stella

    My divorce was final June 20th after 26 years of marriage, 9 years and 11 months of that in service. Ca is a 50-50 state. I am legally entitled to half and my benefits. I work at Wal-Mart he has not given me one dime more than the legal system has made him agree to. Still waitng for the retirement issue to be settled, it will be 2 years in October perhaps by then i can afford to start life over.

    • guest

      Why should he pay you a dime more then the legal system has told him too? Being married only ten years of service means you aren’t entitled to any benefits from the military, no health care, no commissary etc. If the divorce is already finalized it should outline what you are entitled to…retirement pay should be in the divorce decree. If it isn’t, then you probably aren’t going to get it.

      • USFSPA Killer

        A kangaroo divorce court can order health care, commissary, exchange, etc, but the DEERS system won’t permit it unless the marriage/service was a 20/20/20 overlap. By-the-by, you are NOT “entitled” to any retired pay – you didn’t serve under lawful written contract to the US Gov’t like your former military spouse did.

    • RRR

      I was married for 19 years, a little more of 17 years of which was in the military. Since I retired at 19 years 8 months she was only entitled to only 47 percent of my retired pay, it was prorated. Before she gets anything she must been married to me for least 10 years of service, not 10 years of marriage, she got that. So you take the total years of marriage during service at the time of divorce. Also note, once divorced if member is still in service, and that member gains more ranked after divorced, you will only be allowed your percentage of pay at the time of rank at that time of divorced. you will not be entitled to retired pay if he/she gains rank. It will be prorated for up to that rank and years of marriage during service.

      • Kate

        RRR, the things you are stating are perfectly reasonable, but they are not the law. The law says that the two parties can make whatever division they want, and that if the marriage was more than 10 years, DFAS is authorized to divide the retirement pay for the two parties vs. one party having to pay the other party each month.

        There is NO formula written into the law.

      • USFSPA Killer

        The 10 years refers to the overlap of B-O-T-H marriage and service, not just one or the other. It’s really amazing just how much WRONG info is out there ! ! ! !

      • USFSPA Killer

        RRR – Keep believing that fallacy – many retirees can attest to the fact that their former spouse cut includes all rank gained after divorce – UNLESS the court order states that the cut is effective on the rank at divorce, not final retied rank.

  • Joseph

    Soldiers & Sailors Relief Act states: state courts have no jurisdiction over
    the division of divorce spousal support. I was married more than years prior
    to retirement which allows payment of 50% of retirement ($650.00) for life
    whether she remarries or not. She has remarried and under federal law
    she continues to receive until one of us dies. If she is first, then I will receive
    full payment. If I am first then all stops.

    • USFSPA Killer

      Joseph – read the words of the USFSPA – it GAVE state divorce courts the OPTION to divide military retired pay according to their domestic relations laws ! Note that word – OPTION – they aren’t required.

  • guest

    I divorced after 32 years of marriage i meet the 20-20-20 rule. Our divorce lawyers did not put in a percentage for my portion of retirement. The divorce degree mentions I get half and the SBP. A JAG lawyer has figured out the percentage, she says this happens in the courts all the time. She has written up an amendment for percentage of which I will get less than 50% and my ex will not sign. ???

    • Kate

      Did DFAS not accept the language in your divorce decree? It sounds like you will need to get a lawyer to force your ex to sign the amendment. Be sure to retain someone who understands military divorce laws. Good luck!

      • USFSPA Killer

        Kate – No lawyer can “force” anyone to sign something they don’t agree with – that’s unethical and any lawyer who does that should be disbarred !

  • Angela

    I am new and I needd help. In my divorce agreement it says: “Upon retirement, Petitioner shall pay to Respondent as and for spousal support a portion of his retirement pay calculated as follows: one-half times the length of marriage overlapping military service divided by total length of military service, according to Navy guidelines. This support will replace the $1000 per month spousal support. Spousal support shall terminate upon death of either party or remarriage of the supported spouse”. Unfortunately my ex husband retired this summer and it is not paying anymore spousal supportas per the agreement BUT he is not paying the portion of retirement pay I am entitled. What can I do? I am a foreign national, working for the US Navy in Sigonella, but the US Legal Ofiice in Sigonella does not help me as I am no longer a dependent.

    • Kate

      Angela, there are a couple of things here. First, if your marriage lasted longer than 10 years, then the Defense Finance and Accounting Service (DFAS) will make payments directly to you upon submission of the proper documentation.

      If your marriage lasted less than ten years, then you need to start by talking to your ex-husband. It is possible that he thinks that you are already receiving your portion from DFAS, or that he doesn’t realize that he needs to make the payments. If he is uncooperative, you’ll need to find a good US divorce lawyer who understands the military. I can’t imagine that you would need to go to court unless your ex-husband really wants to be impossible. However, given that he has paid the previous spousal support, that doesn’t seem likely to me (without knowing him, of course.)

      Good luck!

  • Brian

    I’m retired military after 22yrs..My wife and I are divorcing after 18yrs of marriage. My wife has only been with me of military service for 10yrs 8mo of service. Her attorney is asking for 50% of retirement and stating that “Texas” is also a shared portion of my 50% Disability/Pension…. Can anyone legally share to this??

    • Kate

      Brian, her lawyer can ask for anything that he wants. It is up to you and your (hopefully very knowledgeable about military) lawyer to move the negotiation process along by telling them what you would like to see.

      VA pensions are not technically “sharable,” however, the amount of a VA pension can be included in the overall math used to come to a decision about the division of marital property and any support that might be provided one way or another. Again, that is up to you/your lawyer and your ex-wife/her lawyer. Ideally, the two parties will hammer out a negotiation that gives them both something with which they can be happy.

      If that doesn’t happen, then a judge will have to decide. I’d like to say that most judges are fair and equitable, but understanding the retired/disabled military compensation system is hard and not all judges have experience with it.

      Good luck to you!

    • USFSPA Killer

      Brian – 38 USC 5301 says that VA Disability Compensation is not divisible or attachable by anyone or any means, before and/or after the disabled vet receives it. Your ex’s lawyer needs to go back to school and learn about 38 USC 5301 !

      • guest

        WHile it’s not “divisible” it is NOT protected from alimony or child support calculations

  • Shawn

    i was only married for 8 years. is my ex wife entitled to any retirement? I believe in the divorce decree it states she gets a portion. I am remarried now. Is there anything I can do?

    • Kate

      Shawn, your wife is entitled to whatever you both agreed to, or the courts ordered, in your divorce decree. If the decree says that she gets a portion, then that is what she will receive. You could try to have your divorce decree changed. I have a hard time imagining that it would be successful, though I have had one or two people who say that they have done it. I would imagine that she would strongly protest.

      Because your marriage lasted less than 10 years, she can not request to be paid directly from DFAS, but rather you will have to make the payments directly to her.

      • USFSPA Killer

        Shawn, Kate – NO former spouse is “entitled” to any portion of retired pay – they get what a kangaroo divorce court judge says the former spouse will get. Only the military retiree is entitled to military retired pay !

  • Jason

    My divorce states in it that my ex will recieve (half) not 50% of my retirement. I have been in now for a little over 20 years. Do I continue to serve and she gets more if i were to do 26 years or do i get out now at 21 years? We were married for 9 years. We have been divorced now for 10 years. Can I bring this back to court? Please help.

    • Kate

      Jason, your situation highlights the importance of having the division of property written very carefully. Without reading the exact language, I can’t even guess what a court might rule. However, it sounds like you have agreed to give her half of your final retirement.

      Some people have told me that they have had success in having a division of property changed, but it that is true, it is very rare. Typically, a change to a division of property would be prompted by a change to the law (such as when the division of military retirement assets became legal), or a significant change to the situation that was true when the settlement was agreed (such as one spouse hiding assets from another spouse.)

      Good luck to you!

    • USFSPA Killer

      Jason – which is more – 6 eggs or half-a-dozen eggs ? You are highlighting one BIG HOLE in the USFSPA – there is no set time in your career that the “half” (“not 50%” as you say) will be figured – yes, it’s usually figured on your first retired pay amount, regardless of how long before you divorced – UNLESS you specify that it will be figured at a certain point in your career.

  • confused

    My ex-spouse and I divorced about 6 months ago when I was still active duty. In the divorce decree it specifically indicates that he keeps his military retirement and I keep mine. He retired 10 years ago and his retirement is less than mine will be. I am coming up on retirement in a few months and my ex-spouse is threatening to go back to court and claim half of my retirement (we were married 20 years which is all but two years of my active duty time but only half of his active duty time). My question is, can he take me to court and claim some of my military retirement now even thought the divorce decree specifically states he keeps his retirement and I keep mine?

    • Kate

      Confused, your ex-husband can try to do anything. Whether the court will permit it is another question. Typically, the separation of assets in a divorce decree is considered final unless there is a change to the law or significant additional information is uncovered. That doesn’t sound like the case for you. If he does try to have the division reopened, please find the more highly experienced military divorce lawyer you can locate.

      Good luck to you!

  • lissak

    I have been married for 31 years, married at 18. My husband was active duty for 24 years, and retired 8 years ago. Considering divorce and would like some info on what to ask for. He is a physician.

    • Kate

      lissak, I can’t (and wouldn’t) speculate on “what you should ask for.” A good divorce attorney or mediator will help you look at the entire picture and come up with a fair and appropriate settlement agreement.

      One thing I can say is that the law allows for the division of military retirement in a divorce agreement. It does not specify how military retirements may be divided, that is up to the two parties involved in the divorce. Since you were married more than 10 years, if you come to a settlement agreement that involves the division of military retirement, you may apply to the Defense Finance and Accounting Service (DFAS) to have those payments made directly to you.

  • Pacita Pacheco

    I had been married 23 years. My ex-husband was in a military marine. And hes is retired now. Our final divorce was Jan. 2001. When were at the court he agreed to give me 50% of his retirement military and the Post office. And stated in our final divorce. But tried to hire a lawyer. I started paying the lawyer. But they want more money at that time. I was having a hard time because of my 3 children. But now my children are all grown. All of my children was telling me that need to look another lawyer. But he is no longer live here in USA. He went retired to the Philippines. But he is an American. I don’t know what my options?

    • Kate

      If your divorce decree specifies that you are to receive a portion of military retirement, because you were married more than 10 years you can submit your divorce decree to the Defense Finance and Accounting Service (DFAS) to be paid directly.

      It definitely sounds like a good, military-experienced lawyer could help you a lot. Please find someone, or let your children help you find someone.

  • JLD

    I was married 24 years and divorced. My incompetent lawyer(now deceased) let the court award her $450 (which was my total retirement and if it increased, alimony would increase accordingly. The judge decided accordingly meant all of the retirement pay. This was 33 years ago. Do I have any chance of getting at least portion of MY retirement back?

    • USFSPA Killer

      Yea, when your ex passes on to her final “resting place” ! Then the garnishee will stop – but you need to notify DFAS quickly by some type of documentation – newspaper clipping, death certificate. You won’t get “back pay’ but you will get that portion that she was getting after she passes on. Of course if you predecese her, neither of you will get any type of retired pay – hers stops because you won’t be getting retired pay any more.

  • terry

    We were married for 11 years. Is there any state law that supersedes getting a portion of my ex retirement, regardless of whether or not there is something in the decree? And, is there an impact to this by marriage?

    • Kate

      I am assuming that your property settlement follows your state law, or it would not be accepted by the courts. Once it is finalized, there should be nothing left to debate (though some people do try.)

      The division of marital property is not impacted by remarriage unless those terms are set forth in the settlement agreement, usually with regard to alimony.

  • johhnie

    marriage 16 years of his army sevice. he put in divorce that all community property is 1/2. is army retirement part of community property? need help the state of louisiann is a community property.

    • USFSPA Killer

      You really need to check with a good (?) lawyer !

  • Jamie

    Any advice …. Married 18 years before divorce. I am 53 years old. She is taking half of my retirement. Already paying excessive amount of $2300 for spousal support and $1450 for child support. Child support just ended (child turned 18). Now she is taking me back to court for additional spousal support. I retire in 2 months. Her attorney is saying that I HAVE TO WORK UNTIL 65 and that she will not be able to go after my “new” earnings after retirement. Is that true? I thought if I retired, that was it! We are in California

    • Jamie

      correction to above….. HER ATTORNEY SAID THAT SHE “WILL” BE ABLE TO GO AFTER MY NEW EARNINGS….

      • guest

        Hire a damn good lawyer. This is all going to depend on what your decree says about spousal support, how long it’s for or if it’s permanent, if a percentage or dollar amount is in the records etc. They can’t FORCE you to work until 65, they can however force you to pay alimony that is in excess of what your earnings currently are.

  • rudy

    I have great advice; do not get married.

  • Michael

    Divorced, finally!! Court gave the standard 50% of the retirement. She will not speak to me and has not completed the forms to start the allotment. My question, is there a statue of time that she has to do this?

    • USFSPA Killer

      There is NO “standard 50% of the retirement”. What do you mean by “the allotment” ? Whose military retired PAY was divided and who will be getting the court ordered USFSPA property payments? In other words, who is the military retiree and who is the former spouse ? ONLY the former spouse and NO ONE ELSE, including the f/s’s lawyer, even with a Power of Attorney, can sign the DD Form 2293. A copy of the court order must be dated within 90 days of it being sent with the 2293 to DFAS-Cleveland.

      • Michael

        She was entitled to 50% of the retirement pay.
        My question is, how long does she have to file the 2293? Is there a time limit to do so? Can she wait 3 years? 5 years?

  • Wanda Gadsden

    Can you let someone know when there is a deposit pending for whatever reason