This one is easy to play our game with. Let’s picture the situation where the military member chose to stay in for 30 years. Coincidentally, he was married to a different spouse for each decade of his career. Three wives, 10 years each. Under the theory proposed, how much would the first wife get? Half. The second? Half. And the third? Um, half?? And how much would the military member get? It doesn’t work, does it?
Okay, there is a black and white answer here. The word “half” that you hear people talking about is “half of the marital share” of the retirement pay, not “half of the whole” retirement pay. The first wife would get one-half of 10/30ths (10 years of marriage divided by 30 years of total service) as her share of the retirement pay–half of the amount that was earned during the marriage. The second and third wives would each get the same amount. Collectively, the 3 wives would receive one-half of the whole retirement pay.
The military member receives the other half. That sounds fair, doesn’t it?
One more thing: the “10-year rule” has no bearing whatsoever on this subject. A spouse is entitled to claim a piece of the marital portion of any property regardless of the length of the marriage. A spouse married for 9 years or 5 years can claim a proportional share of the retirement (50% of 9/30ths, or 50% of 5/30ths). There is such a thing as “too short a period of time to have a real claim in retirement,” but the judge (or the parties) will have to decide that on a case by case basis.
There is a 10-year rule, mind you. It pertains to whether the federal government will be willing to write the non-military spouse a separate check. If the marriage exceeds 10 years, the spouse can ask the government to cut her a check for her share. Less than 10 years, no luck.
One last point: whether the marriage is 5, 10, 20 or 30 years, the entitlement to a share of the spouse’s retirement pay is not automatic, at least not in Virginia. All that Congress did in the legislation which it enacted back in 1982 (allowing division of military retirement pay) was to give the various state courts the authority (not the obligation) to treat retirement pay as an item of property, to be divided just like any other piece of property (like a car, or a television set). The state courts were obliged only to follow their normal property division laws, and in Virginia, that would be equitable distribution.