Several myths and urban legends surround the division of military retirement. One common myth is that the non-military spouse has no right to military retirement unless they were married during at least ten years of their spouse’s service. Another common myth is that DFAS will begin paying the divorced non-military spouse based solely on DEERS information or that a clever non-military ex can obtain a share of the retirement without a court order but simply upon submitting the proper forms.
In reality, Federal Law ensures DFAS treats military retirement like any other asset. Military retirement is subject to the same bargaining, haggling, and litigation as any other asset. Many of the aforementioned myths stem from prior law and the procedural mechanisms used by DFAS to divide military retirement once a provided with a court order. For example, DFAS will send the non-military ex-spouse his or her portion of the monthly retirement check directly if the marriage was over 10 years during which there is 10 years of credible military service. However, if the marriage was under 10 years DFAS sends the entire check to the service member and requires the service member to pay his or her ex-spouse. Neither is done until an order is provided.
Prior to the enactment of military deployment statutes, a non-military custodial parent was able to withhold his or her child completely from the military member’s entire family –which could include a step parent, grandparents, half siblings. The non-custodial service member’s right to possession and access of the children ended with the deployment and their courted ordered time with their child reverted to the other parent. Siblings who grew up seeing a brother or sister half of the time or more could only see his or her siblings with the permission of the service member’s ex-spouse. Not surprisingly under the old law the 1st, 3rd, and 5th weekend often became never during the deployment. Possession and access was at the whim of the service member’s ex-spouse.
Currently Texas Law allows the non-custodial military parent the right to obtain a temporary orders hearing to designate a spouse or grandparent to exercise his or her visitation with the child during the deployment. If the military member is the custodial parent, the non-custodial, non-military parent, has the right to obtain a temporary orders hearing to grant him or her custody of the child during the deployment. Often current divorce decrees or modification orders contain language that sets out these provisions without requiring the parents to go back to Court prior to each deployment. It becomes simply part of the visitation arrangement.