Is Army Retirement Disability considered marital assets and can they be awarded to ex spouse?

UPDATED: Oct 1, 2022

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Is Army Retirement Disability considered marital assets and can they be awarded to ex spouse?

i was divorced 7 years ago in colorado, my ex spouse is trying to get 50 of my
retirement. My Army retirement, VA disability, and SSI are all tax free and
considered disability. Can she get any of my disability pay??

Asked on December 11, 2017 under Family Law, Texas


B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Without seeing your final decree....the best answer I can give you is "it depends."  
If the retirement did not exist at the time of the divorce, then she has no potential claim to any of the benefits.
If the retirement benefits did exist, but were awarded to you...then she is precluded from trying to "redo" the division of the community estate.  So, look at your decree, if it awards you all of your pensions and retirements, then it's your pension.
If the retirement benefits existed at the time of divorce, but it was not addressed by the divorce decree, then she could potentially file a claim to "divide an undivided asset," namely, the retirement plan.
She cannot access your VA disability or SSI because those are considered income, much like have a job.  Once you were divorced, your subsequent income immediately became your separate income.  The only way she could potentially get these funds is if you owed child support....and in that event, she could request some payment of that obligation ---much like a child support obligation being withheld from a regular paycheck.

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