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Retirement pay as community property

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30mil

Junior Member
What is the name of your state (only U.S. law)? Louisiana
Where can I look in Louisiana code to research the treatment and dispersal of military retirement pay as community property to a (soon to be) former spouse?

Article 10 Sec. 1408 of the US Code grants the states the ability to treat military retirement pay as property that can be divided as if it were some kind of saving account that the former spouse has a right to. As far as I know, the only rights outlined are in the Constitution (and those rights ain't in there) but everyone around here seems to think a former spouse has a "right" to a members retirement pay.

I can't find anything in the Louisiana code that takes over from the US 10 Sec. 1408. I have been up and down both the CC and CCP code for Louisiana. What am I missing?

I'm not looking to be a a-hole, I just want to be informed where that much money (over my entire life) is concerned.

Can anyone help?

Thanks!
 


LdiJ

Senior Member
What is the name of your state (only U.S. law)? Louisiana
Where can I look in Louisiana code to research the treatment and dispersal of military retirement pay as community property to a (soon to be) former spouse?

Article 10 Sec. 1408 of the US Code grants the states the ability to treat military retirement pay as property that can be divided as if it were some kind of saving account that the former spouse has a right to. As far as I know, the only rights outlined are in the Constitution (and those rights ain't in there) but everyone around here seems to think a former spouse has a "right" to a members retirement pay.

I can't find anything in the Louisiana code that takes over from the US 10 Sec. 1408. I have been up and down both the CC and CCP code for Louisiana. What am I missing?

I'm not looking to be a a-hole, I just want to be informed where that much money (over my entire life) is concerned.

Can anyone help?

Thanks!
Yes, she would be entitled to a share of your retirement pay. Some or all of your retirement pay is community property.

Example:

Your retirement pay is 3000.00 a month. You were in the service for 10 years before you got married, and for 10 years until you divorced. You will retire at 30 years. The marital portion is 1/3 of your total retirement pay, or 1000.00. She would be entitled to 1/2 of the 1000.00, or 500.00 a month.

Since you were married 10 years of your service life, the government would split your retirement pay and pay her the 500.00 directly. If you were married less than 10 years of your service life, you would receive your full pay and would be responsible for paying her yourself.

Most of the calculations are a tad more complicated than my example, but I made it simple for the sake of the example.
 

nextwife

Senior Member
You were in the service for 10 years before you got married, and for 10 years until you divorced. You will retire at 30 years. The marital portion is 1/3 of your total retirement pay, or 1000.00. She would be entitled to 1/2 of the 1000.00, or 500.00 a month.
What is the name of your state (only U.S. law)? Louisiana
Where can I look in Louisiana code to research the treatment and dispersal of military retirement pay as community property to a (soon to be) former spouse?

Article 10 Sec. 1408 of the US Code grants the states the ability to treat military retirement pay as property that can be divided as if it were some kind of saving account that the former spouse has a right to. As far as I know, the only rights outlined are in the Constitution (and those rights ain't in there) but everyone around here seems to think a former spouse has a "right" to a members retirement pay.

I can't find anything in the Louisiana code that takes over from the US 10 Sec. 1408. I have been up and down both the CC and CCP code for Louisiana. What am I missing?

I'm not looking to be a a-hole, I just want to be informed where that much money (over my entire life) is concerned.

Can anyone help?

Thanks!

I read the first post and missed where it said how many years of service time they were married. Where was that information? The first post only referenced retirement payments now being received, not benefits accrued during the marriage.
 

30mil

Junior Member
Thanks nextwife, LdiJ, for replying,

I understand everything for calculating it. We are currently married and are in year 14.2 of our marriage with me getting ready to hit 18 years in service (I haven't retired yet with no immediate plans to do so). That calculation is actually used to determine what amount Defense Finance and Accounting will garnish from the members retirement pay "if" the former spouse has a properly worded and supported request.

What I am being told is, the state can award up to 50% of a members disposable retired pay for garnishment, regardless of calculations used by sec 1408 or time married to the member while in service. That it is up to the state to decide how to partition the "property". Most times, the state will use the federal formula.This came from a very sleep sounding and impatient lady at DFAS.

My real question, what does Louisiana law say on the matter? I can't get a straight answer from anyone here in Louisiana.

Was the lady at DFAS too sleepy? Is the state required to use the formula stated in USC 10?
 

mistoffolees

Senior Member
Thanks nextwife, LdiJ, for replying,

I understand everything for calculating it. We are currently married and are in year 14.2 of our marriage with me getting ready to hit 18 years in service (I haven't retired yet with no immediate plans to do so). That calculation is actually used to determine what amount Defense Finance and Accounting will garnish from the members retirement pay "if" the former spouse has a properly worded and supported request.

What I am being told is, the state can award up to 50% of a members disposable retired pay for garnishment, regardless of calculations used by sec 1408 or time married to the member while in service. That it is up to the state to decide how to partition the "property". Most times, the state will use the federal formula.This came from a very sleep sounding and impatient lady at DFAS.

My real question, what does Louisiana law say on the matter? I can't get a straight answer from anyone here in Louisiana.

Was the lady at DFAS too sleepy? Is the state required to use the formula stated in USC 10?
I don't know of any cases where one party requested that the federal formula be used that it was rejected. If your stbx wants her share of your military retirement, she will get it.

I loved your little snip: "As far as I know, the only rights outlined are in the Constitution (and those rights ain't in there) but everyone around here seems to think a former spouse has a "right" to a members retirement pay."

Sorry, but you have a lot of learning to do. Just because something isn't listed in the Constitution doesn't mean it won't happen. The law is pretty clear on splitting military retirement pay and she will get it. It doesn't need to be in the Constitution.
 

30mil

Junior Member
I don't know of any cases where one party requested that the federal formula be used that it was rejected. If your stbx wants her share of your military retirement, she will get it.

I loved your little snip: "As far as I know, the only rights outlined are in the Constitution (and those rights ain't in there) but everyone around here seems to think a former spouse has a "right" to a members retirement pay."

Sorry, but you have a lot of learning to do. Just because something isn't listed in the Constitution doesn't mean it won't happen. The law is pretty clear on splitting military retirement pay and she will get it. It doesn't need to be in the Constitution.
(Ha) I know she'll get it if she wants it. There's nothing I can do about it so I'm not going to get twisted up and defensive. She can decline it, which I hope she will. My goal is to be informed. To not know what's going on and why gets me defensive and feeling like a target, and that doesn't help anything.

My "snip" was the result of an argument I got into with a neighbors wife about rights vs awards. The result of which was, just because people can get something, doesn't mean they should. Shouldn't have put it in, sry...

Thx mistoffolees
 

LdiJ

Senior Member
(Ha) I know she'll get it if she wants it. There's nothing I can do about it so I'm not going to get twisted up and defensive. She can decline it, which I hope she will. My goal is to be informed. To not know what's going on and why gets me defensive and feeling like a target, and that doesn't help anything.

My "snip" was the result of an argument I got into with a neighbors wife about rights vs awards. The result of which was, just because people can get something, doesn't mean they should. Shouldn't have put it in, sry...

Thx mistoffolees
Why would she decline it? Its a marital asset that she is entitled to receive, and she lived a military life too.

Of course if you want to give her other marital assets in lieu of the retirement, that is an option if there are other marital assets available.
 

30mil

Junior Member
Why would she decline it? Its a marital asset that she is entitled to receive, and she lived a military life too.

Of course if you want to give her other marital assets in lieu of the retirement, that is an option if there are other marital assets available.
We'll have to agree to disagree about some things. She is entitled, yes, but there is a lot of information you're not aware of that I'm not going to lay out regarding her "living a military life".
 
What "federal formula" are you speaking of? Federal law allows states to treat military retired pay as marital property. Federal law allows direct payment under certain criteria and restrictions on how much will be paid directly. That's it.

In most states, state law only treats retirement accrued during the marriage as marital property. So, the retirement you earned for your service prior to the marriage and after the divorce is not subject to a property division.

And, as Ldij and Nextwife point out, you are entitled to half of any retirement she accrued during the marriage and splitting the total assets & debts does not always mean splitting each asset and debt in half.

Just make sure you get an attorney familiar with military retired pay. Many are not and the decree does not read correctly, causing problems.
 
CC 2338 and CC 2341 cover what is considered community and separate property.

The military retirement you accrued prior to the marriage and after the divorce is NOT community property.
 

30mil

Junior Member
@ IrishLady47

The formula I refer to is found in the Defense Finance and Accounting Services website under garnishment. Federal was used inappropriately I guess. It outlines the legal speech required for a successful garnishment from a court order.

Your two LA CC references are exactly what I was looking for. Thank You.
 

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