If we get divorced is she entitled to my retirement, and if she is how much
Not entitled in the sense that there is a statutory provision that awards her a portion. The Uniformed Services Former Spouses Protection Act, USFSPA, allows military retirement to be divided by states incident to divorce just as any other retirement is divided by the state.
Virginia divides assets, including retirement benefits, through the process of equitable distribution as provided at Va. Code 20-107.3.
A frequently used method to divide military retirement is to award the non-military spouse one half of the marital portion. In your instance, one half of seven years divided by your total term of service. If you retired today at 21 years of service, she would get half of a third, or one-sixth.
Because she is not a 10/10 spouse as defined by the USFSPA, she would not get direct payment from DFAS. You would have to pay by check, allotment, or something. Also, you would have to do your own income tax accounting.
I will make this simple. if you retire today, 7 years of marriage divided by 21 years of military service equals 1/3.... now divide that by 2 so now you are at 1/6. If you retire today she gets 1/6 of your retirement. Obviously, the longer you stay in, those numbers will change, but the logic remains. Here is where you really need to focus. If you are already in the midst of litigation, you maybe stuck with the this formula but if you are negotiating a separation you might have a few things you can do. You MUST have a divorce attorney help you. There are many things you can do to try to lessen the sting of your spouse getting the money your deserve for defending our country. (Can you tell I am a little biased??) DFAS and the Court will accept putting in provisions to agreements that limit the calculation based on rank as of the date of separation, using date of separation as apposed to date of divorce, or even getting her to agree to a set amount (of course lower than the above formula) YOU REALLY NEED a divorce attorney. You need to stop by your JAG office and get a copy of the Regs on retirement benefits.
As the previous attorneys have explained, your spouse may be awarded an equitable distribution of the marital portion of your retirement benefits (or, technically, military retainer pay).
Marital portion starts at date of marriage and ends at date of separation, converted to a percentage of the total (so 7 years/# of years of total service at retirement = % of retirement benefit that is marital share subject to division).
What spouse receives would be a % of marital share subject to division, where the % cannot exceed 50% of the marital share (see statutory language below). So, if she were awarded 50% of the marital share, then the formula applied would be 50% x 7/# of years of total service at retirement.
The specific statutes relevant to your question are set out in relevant part below:
20-107.3 (A)(2) Marital property is... All property including that portion of pensions, profit-sharing or deferred compensation or retirement plans of whatever nature, acquired by either spouse during the marriage, and before the last separation of the parties, if at such time or thereafter at least one of the parties intends that the separation be permanent, is presumed to be marital property in the absence of satisfactory evidence that it is separate property.
20-107.3(G0(1) The court may direct payment of a percentage of the marital share of any pension, profit-sharing or deferred compensation plan or retirement benefits, whether vested or nonvested, which constitutes marital property and whether payable in a lump sum or over a period of time. The court may order direct payment of such percentage of the marital share by direct assignment to a party from the employer trustee, plan administrator or other holder of the benefits. However, the court shall only direct that payment be made as such benefits are payable. NO SUCH PAYMENT SHALL EXCEED 50 PERCENT OF THE MARITAL SHARE OF THE CASH BENEFITS ACTUALLY RECEIVED BY THE PARTY AGAINST WHOM SUCH AWARD IS MADE. "Marital share" means that portion of the total interest, the right to which was earned during the marriage and before the last separation of the parties, if at such time or thereafter at least one of the parties intended that the separation be permanent.
Divorce is the process of formally ending a marriage. Divorces may be jointly agreed upon, resolved by negotiation, or decided in court.
If one spouse in a divorce has a retirement plan, it may be split between the parties. How the plan is split depends on its type and value.
Written by attorney Graham Norris
A Qualified Domestic Relations Order (QDRO) is a special court order that is used to instruct a plan administrator to pay funds to an ex-spouse, after those funds have been split by a... more
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