We often get questions on military pensions and whether there is any truth that if a couple has not been married for 10 years the spouse is excluded for sharing in the pension.
The answer is YES. but only if you read the fine print and look at the case law.
A review of USFSPA provides military retirement payments may not be made “under this section” to a former spouse who was not married to the service member for at least 10 years. 10 U.S.C. Sec. 1408(d)(2). The 10-year requirement applies only to military retirement pay paid directly by the military finance center to the former spouse. Virginia appellate courts have stated while a 10-year marriage is a condition for direct payment, failure to meet the 10-year requirement does not bar the court’s division of a spouse’s military retirement pay. Cook v. Cook, 18 Va. App. 726, 446 S.E.2d 894 (1994).
Likewise, the Court has held that even if the military personnel has not served 20 years and is not fully vested, does not mean that the spouse is excluded. Like any pension, the military pension is a deferred compensation and can be includable for consideration in a divorce. Similarly, The marital estate for purposes of dividing the pension includes only that portion of a military pension which is earned during the marriage.
Military pensions are tricky and you need to talk to a qualified domestic relations attorney who can better assist you.
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