Military Disability Retirement and Divorce

wiko123

PEB Forum Veteran
Registered Member
#1
Hello All and I hope you are well. some background I was medically retired from National Guard in 2014 100% DOD and 100%VA. I am currently 44 YO. going through a divorce and STBX want her 32% of my Retirement amount I am currently waiving for VA. I do not qualify for CRDP until I'm 60. I thought the DOD disability retirement pay was protected just like the VA is from being divided in a divorce but I cant find anything to support it. I agreed to not take any actions when I turn 60 and start getting CRDP to lower her portion but now they are trying to use that against me.

I guess my first question is, what I get from DOD is Disability Retirement and not regular retirement, correct?
Is DOD medical retirement protected from division like VA is?
Where can I find documents to support this.

I have worn out Google looking for this and now I'm turning to the experts.

Thank you
MSG G
 

gsfowler

Staff Member
PEB Forum Veteran
#2
Based upon what you are writing, you have a 20Y letter, correct?

If that is the case (because you mentioned 60), you would be collecting your NG non-regular retirement at 60 and your wife may be entitled to a portion of it. What percentage that is, they lawyers will have to figure out.

You should only be receiving a small amount of money from the DoD (if any) since that is offset by your VA C&P award.
 

wiko123

PEB Forum Veteran
Registered Member
#3
Based upon what you are writing, you have a 20Y letter, correct?

If that is the case (because you mentioned 60), you would be collecting your NG non-regular retirement at 60 and your wife may be entitled to a portion of it. What percentage that is, they lawyers will have to figure out.

You should only be receiving a small amount of money from the DoD (if any) since that is offset by your VA C&P award.

yes I do have the 20Y letter and I don't have a problem with her getting 32% when I turn 60 or start getting CRDP. the problem is they are claiming the DOD disability retirement I currently waive for VA is subject to distribution and she should be getting 32% of that as of right now. I'm trying to figure out exactly what I get from DOD is called and if it is protected like VA
 

gsfowler

Staff Member
PEB Forum Veteran
#4
First thing to note is that the division of assets in a divorce is subject to state laws, and each state may be slightly different. Here is a link that describes the scenario that you are asking about.

https://www.divorcenet.com/states/virginia/vaart_12

Most states would only award your wife 32% of your retired disposable income, from your situation there are two things to consider.

1.) Under the USFSPA, military disability pay is excluded from the definition of disposable retired pay, and therefore, disability pay is not subject to the same rules of division in divorce. So when a service member waives retired pay in exchange for disability pay, former military spouses may lose out on hundreds or thousands of dollars they might otherwise have received in the division of disposable retired pay.

2.) Service members must waive a certain amount of retired pay in order to receive VA disability compensation. As stated above, VA disability compensation cannot be divided between spouses in a state divorce court. If a service member waives any portion of military retired pay in exchange for VA disability, the amount waived is subtracted from the amount available to the former spouse.
 

chaplaincharlie

PEB Forum Veteran
Registered Member
#5
Under federal law, state courts may award a maximum of 60% of a member's "disposal retired pay" to a former spouse if there are very minor children, otherwise 50%. This was recently challenge in Federal Court and the law was upheld. If you are 100% DoD your "disposal retired pay" is 0. 50% of 0 is 0.
 

wiko123

PEB Forum Veteran
Registered Member
#6
Under federal law, state courts may award a maximum of 60% of a member's "disposal retired pay" to a former spouse if there are very minor children, otherwise 50%. This was recently challenge in Federal Court and the law was upheld. If you are 100% DoD your "disposal retired pay" is 0. 50% of 0 is 0.

Was that Howell V Howell or are you referencing another court case?
 
data-matched-content-ui-type="image_stacked" data-matched-content-rows-num="3" data-matched-content-columns-num="1" data-ad-format="autorelaxed">
Top