Would my military retirement pay be apportioned in a divorce?

Question

I was receiving retired military pay before I married my wife. My retirement pay was going to an account that was established while I was on active duty and continues to do so as of today. I used a separate account when I worked on another job and all of the earnings went into that account.  After all kind of research I cannot find anything that says that retirement money is only separate property because it was owned by me before my marriage. The funds were not co-mingled and they continued to grow throughout my 14 yr marriage. In addition, these are not wages, it is a distribution and they should not be divided in a divorce.

Dave Hawkins · Answer

It can be, yes.

Gregory Crain · Answer

Yes.

Steven D. Dunnings · Answer

Yes.

Cathy Cook · Answer

If you were already in retirement pay status before marriage, that money is your separate property.

Harry Roth · Answer

No, your retirement, earned prior to marriage and received during marriage, is your separate property.

Marshal Willick · Answer

It largely depends on the law of the State hearing the divorce. In Nevada, if the paper trail substantiated what you say below, then no - all of the military retired pay would be separate property under the law of most States. In Nevada, for example, it would definitionally be separate property, and if not commingled (say by deposit into a joint account) would be yours automatically. Some other States have different rules.

James Albert Bordonaro · Answer

If the retirement funds have been kept separate from the joint funds of the marriage you have a strong argument to being able to keep them and the interest thereon. You're probably going to need to hire a lawyer as this is a complicated area of the law.

Steven Alpers · Answer

Anything earned before marriage is separate property. It may be considered on the issue of support.

Melvin Franke · Answer

Probably not, but when dividing assets the Court may apportion it to you and try to make it up to her by giving her other assets. How long you were married makes a difference.

George Seide · Answer

You are correct. It may be counted as income to determine a spousal or child support amount, but she is not entitled to any of it as a property division as it is your separate property.

Keven A. McKenna · Answer

As premarital assets, if proven, you would probably win that point in a divorce proceeding in R.I.

John Brennan · Answer

I believe you have a good argument. Call my office with details and for an appointment.

Gregory Graf · Answer

Your military retirement is only subject to division if you were married for ten years or more and at least ten years of the marriage overlapped with your active military service. The description you give does not meet those standards and your wife is not entitled to a division of the retirement. The income from your military retirement will be considered as income for the purposes of child support if you have a child with your wife.  It is also a factor to be considered by the court to determine if maintenance (alimony) should be awarded. The income from your retirement is separate property but if it is saved in an account, it becomes a marital asset.  The account you had prior to the marriage remains separate property except any increase in value of the account.  The increase in value in the account is marital property.  There are several things you can do to minimize the marital exposure; talk to a lawyer familiar with military retirements and domestic relations.

Kenneth Friedman · Answer

Your military retirement pay is not a marital asset under the circumstances you describe. It still needs to be disclosed, and the income from it could be considered for purposes of alimony and/or child support, but the entitlement itself should not be divided in a divorce.

Gary Russell · Answer

However, it is income once it is paid that was accrued during the marriage. So they might be divisible. Also, the court can award separate property if warranted.

Leonard A. Kaanta · Answer

Since she was not married to you while you were in the service, she has no claim to the retirement pay.

Eric Smith · Answer

In Texas there is a presumption first that all income during the marriage is community property, so in a contested matter it would be your burden to prove that these funds are separate property, but the facts you describe seem to support that this is largely un-co-mingled separate property. One sticking point is the income earned from separate property, in this case interest or dividends, might be considered community property and need to be traced out.

Loren Zahn · Answer

Property acquired prior to marriage is separate property. Family Code Section 770. Since you earned your retirement pay prior to marriage, it is separate property. So long as the funds are not co-mingled, then they remain separate property.

Dennis Leffert · Answer

The way to look at it is that all monies EARNED during the marriage are entitled to be included as part of marriage unless you and your wife had a prenuptial agreement. There always is, however, a possibility the Court will define those earnings as your Separate Property, So, ask yourself this question: Was any of the money, earned during the marriage, used for marital matters such as property, furnishings, fixtures, food, etc. Usage is also an important factor in the Court's consideration of whether or not the monies earned during the marriage were kept separate, not used for marriage purposes, etc.

James Lentz · Answer

This is WAY too technical a question to seek an answer on a board like this. And a lot is at stake. Please contact a Family Law *Specialist*, preferably with experience in military pensions.

Glenn Tanner · Answer

It appears that the military retirement is separate property. The court "divides" or designates who gets what and how much of all property. You want to ask the court to characterize the military retirement as separate property and to give it all to you without any compensating award of a different asset to your wife.

Dennis P. Mikko · Answer

If the money was earned prior to marriage and remained in a separate account and never co-mingled, there is a strong argument that it is separate property owned by you and not part of the marital estate.  A judge could invade this separate property if there was insufficient funds in the marital estate and equity would suggest it was the right thing to do.

Timothy Byrne · Answer

It depends on your state law.

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