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U.S. Military (Ret.): State courts have leeway in deciding how much ex-spouse gets

Nov. 28, 2012 - 03:51PM   |   Last Updated: Nov. 28, 2012 - 03:51PM  |  
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Q. I'm a military retiree who receives military retirement pay and veterans' disability compensation. I'm going through a divorce and would like to know if my spouse is entitled to alimony or support. We have been married for 12 years before separating, and she now works.

A. As often as I write about the issues surrounding retired pay and benefits in divorce cases, my mail clearly shows that there are still a lot of retirees who don't know what they may be in for when they untie the knot.

The answer to this question is: There isn't any one answer. It's really in the hands of the particular divorce court that has jurisdiction. Here are the basic things to know:

Under federal law, state courts are authorized to — but are not required to — consider military retirement pay to be marital property that is divisible in divorce settlements.

Veterans advocates insist that federal law prohibits the division of Veterans Affairs Department disability pay in divorces, but many state courts do not interpret federal law the same way and do, in fact, divvy up disability pay. Only two states — Arizona and Mississippi — have clearly and unequivocally ruled that VA disability pay is not to be considered as marital property in divorce settlements.

The whole situation is made even murkier because "alimony" as part of a divorce decree may not specifically address either military retirement pay or VA disability compensation.

It's possible that a court may simply order a veteran to pay a set monthly amount to the former spouse, and it's up to the vet to make the payments out of the income sources available to him — whether that's military retirement pay, VA disability pay or something else.

Another confusing factor is the so-called "10/10 rule," a provision of the Uniformed Services Former Spouses' Protection Act.

Some retirees believe this rule means that a former spouse can't get at their military retirement pay unless the marriage lasted at least 10 years. Not so. The 10/10 rule only affects how a court-ordered portion of retirement pay is delivered to the ex-spouse.

If the marriage lasted at least 10 years and overlapped with the retiree's military service by at least 10 years, then a former spouse may apply to receive direct payments from the Defense Finance and Accounting Service.

If the 10/10 requirement isn't met, a court can still order you to pay part of your military retirement to your ex-spouse; you simply must do it yourself, usually by mailing a monthly check. If you don't comply, your former spouse would have to pursue further legal action.

For military retirees — especially disabled retirees — divorce is a complicated situation that varies greatly from state to state. If you find yourself in that situation, you need to find a good lawyer who is familiar with your state's divorce laws — and with the USFSPA.

Retired Command Master Chief Alex Keenan served 28 years in the Coast Guard. Email him at retired@militarytimes.com.

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