Legal Question in Family Law in Oregon

Military retirement (National Guard)

YOUR QUESTION:

In a divorce settlement, I have been married for almost 8 years and have been in the military for 16, mostly as a reservist with a couple of years active duty. Is the spouse entitled to a portion of the (notional)equity even though 20 years has not been reached(thus no guaranteed fund, and 10 years of concurrent marriage and service has not been reached)? Is there an Oregon statute that addresses this or case history?

ANSWER:

Yes, there is an Oregon statute. ORS 107.105(1)(f) says: �There is a rebuttable presumption that both spouses have contributed equally to the acquisition of property during the marriage, whether such property is jointly or separately held.�

As a general rule, except for property being acquired by one spouse as a result of gift or inheritance (and not commingled with the common financial affairs of the family after being received), the �presumption of equal contribution� will be applied. Accordingly, your spouse (or soon-to-be ex-spouse) is entitled to half of that part of your military retirement that was acquired during the years of marriage. Total number of retirement points accquired during the marriage will be divided by total number of points earned as of retirement. Resulting figure will then be divided in half, resulting in the portion to which ex-spouse will be entitled.

Of course, there is a chance that you might never receive any military retirement. You spouse gets her �marital share� of whatever you get. So if you don�t ever get anything, neither does she.

Second, as to the �10/10� rule (ten years of military service coinciding with 10 years of marriage), that rule does not apply to the divorce court�s authority to award to the former spouse the right to a portion of the service person�s military retired pay entitlement itself. It only applies to whether the former spouse will receive the check for her share directly from the military pay center (DFAS). The check can be split at the source only if the �10/10� rule has been met. If it hasn�t been met, DFAS will not split the payment and send ex-spouse�s share directly to her. Instead, DFAS will send the entire amount to you and you, in turn, will then have to divide the check and pay over to former spouse the share that she was awarded by the divorce court (or risk being held in contempt of court).

LAWRENCE D. GORIN

http://www.divorcesource.com/OR/pages/ldgorin.html

Law Offices of L.D. Gorin

521 S.W. Clay St., Suite 205

Portland, Oregon 97201

Phone: 503-224-8884 (afternoons, Pacific time)

Fax: 503-226-1321

E-mail: [email protected]