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Divorce and Military Retirement Pay

Unread postPosted: Wed Mar 09, 2005 4:11 pm
by nuke
The bad news is that regardless of what your spouse did (cheated, tried to kill you etc.), she is entitled by law to "her" portion of your retirement. After hours on the phone cussing at DFAS I was able to get them to give me the language required to minimize the amount of money she can take.

1. You MUST get the court to evaluate the "value" of your military retirement AT THE TIME OF DIVORCE and put it in your decree and especially the QDRO (Qualified Domestic Relations Order). This is to prevent her from getting a portion of some future value yet to be determined as is usually done if you don't fight it. Since most of us will retire under the high 3, the way this is done is to calculate the average of the highest 36 months of BASE PAY ONLY (since this is what your retirement is based on, no special pays, you'll have to explain this to damn near everyone). Typically this will be the average of the 36 months prior to separation/divorce (some states stop the clock at separation, others at the time of filing, and others at the time of divorce). You will need to calculate this as a dollar figure and bring your LES for the last 3 years to court with you.

2. The language itself needs to read similar to the following:

XWIFE is awarded as her sole and separate property the following portion of XHUSBAND'S military retired pay:
One half of the fraction (years of marriage divided by XHUSBAND'S years of service). XWIFE's portion of the military retirement shall be based on the high 36 month base pay at the time of the divorce, which the court has determined to be $WXYZ. XWIFE shall receive COLA adjustments after XHUSBAND retires.

3. There is an organization trying to repeal the law that allows the miltary retirement to be divided in divorces. You can check out their website:

http://usfspa-lawsuit.info/

Military retirees pay is considered property NOT income.

Unread postPosted: Sun Mar 27, 2005 9:49 pm
by time2fightback
The current law is that military retirees pay is considered property NOT income.
Here is just one of the many links. It can be divided just like property.
http://caselaw.lp.findlaw.com/scripts/g ... l=1987ok56

Unread postPosted: Thu Apr 28, 2005 10:42 am
by nuke
True, but beside the point. The point here is that you can have the value of said property determined at the time of divorce and split according to that value, instead of having her get a portion of some future value that is unknown. The latter in my opinion being extremely unfair, since when you withdraw from your investment (in this case a marriage) your money should not continue to grow from that investment. No other property is divided this way. Imagine if your spouse was to get 20% of whatever you sell your house for in 20 years, that would be considered outrageous. Yet this is the standard for military retirement division UNLESS you challenge it and make the above provisions.