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Determining eligibility for military retired pay

As a previous post highlighted, a military divorce in New Mexico tends to be more complex than dissolutions involving civilians. This is mostly due to the military laws governing the process. However, the lifestyle, travel and deployments of the members of the armed forces also play a major role. While there are several distinct differences between a military divorce and a civilian divorce, one major difference is the need to divide military retired pay.

In order for divorcing spouses to begin the process of dividing military retired pay, a court order will need to be issued. In most cases, this is a decree of divorce, dissolution, annulment or legal separation that is issued by a court of law. This could also be accomplished through an approved property settlement incident to a decree of divorce, dissolution, annulment or legal separation. Lastly, this could be included in an order that is modifying a previously issued court order.

Divorcing spouses are not required to use a Qualified Domestic Relations Order or QDRO, because military retired pay is a Federal entitlement and is not considered a qualified pension plan. In order to be eligible for retired pay as a property award, which does not include child support or alimony, a former spouse must meet the 10/10 requirement. This means that in order for a division of retired pay to be awarded, the former spouse must have been married to a military member for a period of at least 10 years during which they performed at least 10 years of service that is creditable towards retirement eligibility.

If it cannot be determined whether the 10/10 requirement has been met, former spouses will be required to provide a copy of their marriage certificate. If it is determined that they are eligible, the court order must reflect this stating that the parties were married for 10 years or more while the military spouse served 10 years or more service that is creditable for retirement purposes.

Establishing eligibility can be difficult, especially when a former spouse need to provide evidence in order to gain rights to military benefits. Those going through a military divorce should take the time to fully understand their situation. This could help them take appropriate action while also protecting their rights and interests in the matter.

Source: Dfas.mil, "Guidance on Dividing Military Retired Pay," accessed May 23, 2016

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