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CASE IN POINT:  This office recently represented a military member (Wife)  who was married on November, 1989, and separated in July of 1996. The divorce did not occur until  2006 so the parties had not lived as husband and wife for ten years.  The Wife had been an active member of the U.S. Army since September, 1987 and was expected to retire in September, 2007. Following the formula, the pension would have been divided 45.7% to Husband and 52.5% to Wife. (228 months in service while married/240 total months in service = .95 times 1/2 = 47.5%.) Worse, the Husband had also had a military career, but was dishonorably discharged following a military court martial.  In fact, had Husband’s actions not resulted in his court-martial, he could have continued on and would have had more retirement funds but for his bad conduct.  Colorado, being a no-fault divorce state, did not consider Husband's bad conduct, but did consider his contribution.

Husband sought a percentage of Wife’s military retirement pursuant to the formula.  Our attorney argued on Wife’s behalf that equity demands their marital property be divided in accordance with the contribution each party made to accumulating the pension.  The Court agreed  and gave the non-military Husband only a portion of the Wife’s military pension which accrued while they were together.  Thus, the pension was divided 81 months in service while together/240 months in service = 33.7 times 1/2 = 16.87% for Husband and 83.12% for our client.  

The bottom line:  to the extent the pension is earned during marriage and to the extent the spouse contributed to the earning of the pension (including work as a homemaker) you will have to divide the pension with your Ex.  But the division does not have to follow the formula and there is latitude here.