Divorce Considerations

Q:  I am an AD Soldier currently serving in Iraq.  My wife and I have been married for eight years last march. While deployed she has had an affair. I am contemplating divorce when I return home. If we divorce, what pay and benefits will she be entitled to?

--Carter

A:  I’m sorry to hear your story and know it doesn’t help, but I appreciate your service and sacrifices.  Although I’ve been asked to play marriage counselor on many occasions, I’m not credentialed.  Having said that, I do believe in marriage – especially if kids are involved -- so I hope you’ll explore all of your options.  If it comes to divorce, I’d recommend that you approach it as a business transaction.  Try to step back and separate yourself emotionally to the extent possible.  All property acquired during your married life is up for grabs.  That includes a portion of your military retirement pay, Roth IRA, Thrift Savings Plan, bank accounts, other investments, furniture, cars, etc.  (By the way, any inheritances that were kept in single name will likely not be subject to division in divorce court.) 

Almost always, one party suffers a dramatic decline in lifestyle.  To be fair, each of you should be left with an emergency reserve account, a portion of retirement savings, and a chance at a new beginning.  It’s worth noting if you end up paying alimony, that it’s typically a tax deduction for you and taxable income for her.  You didn’t mention children, but in the event there are little ones, life insurance with appropriate beneficiaries is a necessity to ensure they continue to be provided for even in the worst of circumstances.  So don’t put your head in the sand, enlist the help of a top notch attorney.  I know from personal experience you have a tough time ahead and my heart goes out to you.

Comments

[SFC Rice]

It's easy to say a spouse is entitled to 50% percent of a soldiers retirement. The truth in this matter is "BS." Each individual has to make their way in this life. One person may work longer and earn more! Thus a military retirement is desirving to the individual soldier that earned it. Community property isn't charity property. If our society thinks it's ok to accept charitable law enacted by congress, then we're Fools for allowing it. We'll suffer the economic consuquence! No one is taking my retirement from me! I have never seen a 50X50 marriage yet. Along with that, it's time for the US military to divest itself from marital matters. A NCO's retirement isn't enough for one soldier to live on let alone split it with someone who doesn't love him. If a the woman decides to leave the soldier, then she leaves all the accouterments too. Hey, life's tough! Enough said!

[June Walbert]

Wow! There is a lot of interest in the topic of divorce and allocating of military benefits. There are also many opinions and misconceptions. All property owned by a couple is subject to being split during a divorce – including military retirement pay. Where the 10-year rule comes into play is regarding DFAS (Defense Finance and Accounting System) dispatching payments directly to the servicemember’s ex-spouse. If a marriage does not overlap with 10 years of military service, depending on the laws of your state, an ex-spouse may be awarded a portion of your military retirement pay. If the DFAS does not make the payment directly, the servicemember would be responsible for doing so according to the court’s direction. For more information, check out the Uniformed Services Former Spouse's Protection Act on military.com.

[Ismael Rivera]

You have to have been married for ten years or more for her to get any portion of your pay or retirement. However if you have children as in any devorce where children are involved. You will most likely have to pay child support and she may try to have you pay spousel maintance which would be for her "to maintain herself".

[pearl forbes]

The union only has to be ten years, The benefits are rationed based on the number of years; such as medical care, px and/or commissary privileges. In each branch of the military there is a Adjutant Corp that can assist in these matters.

[Donald Abrams]

It is a Congressional Act not a law, very critical and vague in "verbiage." It basically reads that U.S. States can treat Armed Forces' Retirement pay as joint property. Any amount of time applies, 1 mos to 30 years, depends on standardized formula. The "Ten Year rule" means direct deposit is authorized no more than 50%. However the ex-spouse must seek and get approval from the Host Armed Service. The information is out there, seek out the Uniformed Services Former Spouses Protection Act. My advise; don't get married until after you retire!

[Karen]

It is my understanding that a military spouse has to have been marriage for at least 10 years to receive retirement benefits. Even if he/her divorced their spouse after that ten year mark they should be able to receive in part that benefit also. I was wondering if their is a adult child that resides with you that has a mental handicap; if they can uptain those benefits until they depart this life or if they have to pick social security and/or both?

[falconrk]

Lots of misconceptions running around out there concerning military benefits and divorce. The Uniformed Services Former Spouse Protection Act (USFSPA.) gives immediate benefits availability to the spouse no matter the length of service. Spouses have even been awarded benefits under USFSPA even if they were not married to the service member during their service time. Its a raw deal, but there are several organizations out there fighting it. Google it!!!

[Michael]

I was married almost as long (7 years) myself, and when I divorced she was not entitled to anything other than child support according to the laws of the state of Texas. We needed to be married for 10 years or more to receive alimony, and according to the JAG Officer I spoke to, she needed to be with me atleast 10 years while active in order to receive half my retirement. Of course check on this info yourself for your state, and with JAG first. May God bless you all in this difficult time.

[MSgt RL Thompson]

What kind of ridiculous advise is this anyway ? This is some thing that some one seriously should address, having spent a full career in the military and going thru a divorce. I foud out there is actually a book that was filtered thru the Family Service Center when my "X" and I were going thru our divorce that pointed out to her how much she rated of my income ... had I cheated on her or abused her and be the cause of the divorce then ok I had it coming to me and to provide support to her would be in order... But my case was similar to this and yes, they tried to obtain a part of MY retirement to give to her, and she never worked a day during the time I was in the service. This is a fight which needs to be fought for our service members. It is the only institution which gives to the "X" because she supposedly "served with us"... Well I brought home the pay, the benefits and served at will, and she enjoyed them and the company of others... so she gets nothing !!! and this young man should fight to give her nothing as well. He served his country and she was aware of the hardships, she cheated on him and deserves to recieve nothing and hope her new company can provide in place of her FORMER HUSBAND. To those who give advice such as this and designe the law which says the spouse deserves a part of his income and retirement after so many years... your idiots.

[amos davis]

Hello Carter:

Thank you for your service. With that stated I will try to give you information about what will occur if you have children. Most times in divorce court the noncustodial parent receives the short end of the benefit of the divorce, and more than likely the noncustodial parent is the man (father) of the children from that marriage. If your children are young, you can count on many years of paying child support until they reach 18 years of age, become emancipated, or are enrolled in college past the age of 18. The home is normally given to the mother of the children, unless you can prove that she has been abusive towards them.

Most dads who are divorced become weekend parents who must by law pay their ex-wife child support, and that will place your life and lifestyle in shambles. Unless you have a lot of money, it is difficult to fight for your parental and property rights with a competent (sp) Family Law Attorney.

Try by all means to mend the relationship with your wife, for the sake of your children first, and second, for the sake of your financial future.

Trust me on this statement, "I have been there. War is hell, and the Mother of all devils is a divorce when children and property are involved. If you do not have children, then you will be free to walk away, but know that if you live in a community property state, there will be a division of assets.

Peace be with you,

Amos Davis

[H Eugene Lunsford, EA CDR,USN [Ret]]

The VERY onerous 1982 FSPA contains the "10/10" rule, so Carter should excape. IMO, make what ever deal you can make to PREVENT the imposition of this life sentence [I've been paying LONGER than I was married]. The latest attempt to overturn was defeated by the courts and Congress is unwilling to revisit the issue.

[David Gilbert]

No , It's 10 Years And half Of your Retirement .

[jd hurt]

My ex-wife gets 40% of my military retirement and I was glad to give it to her.My question now is she has been getting this payment for 15 years and my children are all grown and on their own. She has remarried 15 yrs ago. Why should I continue to have to pay her. she has 3 incomes. I only have 1. What can be done about this law.??? thank you

[Bill]

To answer the comment of how long a person has too be married before your spouse can start claiming part of your retirement if a divorce happens, is ten years of a spouse being with you while you are active duty. They start pro-rateing at that point. As far as myself, we were married seventeen years of the twenty I was in and my ex-spouse got 43.96 Percent of my retirement. Sometimes it is cheaper to keep her. Thank God my children were grown.

[no name extended]

You only have to be married for 5 years during your active duty for her to be entitled to a portion of your retirement. However if adultry can be proven (almost never is unless a pregnancy is involved) she will relinquish all rights to your retirement, custody of children, all marriatal assets and no alimony. Of course this all depends on where you file for divorce. Some states have a no fault law when it comes to marrages and you will get screwed and have to pay everything. Then there are those states that look at you being in the military and what she has done even with the no fault law and will award you everything. I just went through this with my ex and I was awarded everything to include full custody of my children, both cars and motorcycle, the house in Tennessee, the furniture, and alimony to be payed to me. But my wife was inpregnated while I was deployed to Afganistan.

[Kevin Luby]

The spouse is entitled to half of the retirement after 10 years of marriage during the SM's(Service Member's) employment (Military Rule.) Check your state though, because some states calculate their own versions not requiring the SM to be married for the 10 year federal minimum. Unfortunately for the SM, JAG is worthless. JAG is not on your side, they side with the spouse. It doesn't matter what the spouse did, they are still entitled to most of your BAH. If they are still in the home, they can stay there since the military assumes you can live in the barracks/VOQ. My suggestion is to not even bother with the JAG office, and get a good civilian attorney, with experience dealing in military divorces. Get a non-military court order describing what support will be provided during the preliminary period of divorce. The military BAH thing only goes into effect if there is no other court order. Usually what the civilian court orders is a much better option for the SM.

[Joel Huggins]

Pay and benefits starts ticking the moment you say "I do!" The other thing is depending on the state that you live in, some are no fault and some actually take all of that into account. Florida is a no fault state thus everything is getting split. It is best if you try to divide stuff up between the two of you otherwise attorneys give parties the Rhino skin to go for the jugular. Keep in mind that there are no friends in divorce, but it does not have to be a hateful thing. It is already painful enough. When I got divorced I wanted to take as much stuff as I could but then I started thinking and wanted my son to have what he needed to relax as he had already been through enough, thus I have her almost everything and I took all the debit in my name as I wanted to get my credit back in good standing. Keep in mind we did not have attornies and did this on our own. Keep the legal eagles out and go talk to the JAG if you have questions. Hope this helps. You are not alone.

[Jackson]

In a nutshell, the spouse is entitled to 50% of retired pay based on the total number of years in the marriage.

[L. Johnson]

I'm retired Air Force and a divorcee. Unless the law has changed since I retired (1995) and unless it varies between different branches of service; the rule was you had to be married at least 10 years.

[Keesha]

I think the advice given was very sound. I do want to add that while an affair is never right, and you have every right to be angry that any one with training will tell you NOT to make a decision while your deployed. Come home and go to a marriage counselor. Many judges will require it anyway, and if you have a chance to recapture your relationship you might want to consider it. Not for her sake, but for yours. Then if you have to walk away you can honestly say you tried everything. Which can only help you in divorce proceedings. Another big thing is to make sure you command is aware of whats going on. No matter how painful that might be, it's really important so they are in your corner when it counts. Good luck.

[John Hix]

Thought a couple had to be married 20 years on active duty for one to get any part of the retirement check of the other? Did the law change? Thanks