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Lawrence D. Gorin
Lawrence D. Gorin, Family Law Attorney
Category: Family Law
Satisfied Customers: 1544
Experience:  30+ years family law experience. QDROs, UIFSA, UCCJEA expertise.
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My husband and his ex-wife divorced 14 years ago. the divorce

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My husband and his ex-wife divorced 14 years ago. the divorce papers state the ex-wife could get a portio of his military retirement and that a qdro should be filled. ex-wife has waited until now (14 year later, 2 years after his retirement) to file the qdro - asking for 50% of his entire military retirement. not just the portion during the 11 year marraige. the WA court commissioner has awarded her 50% of the retirement for the 11 years they were married, but at a full 24 year military service retirement (not at what his rank was at the time of the divorce). she had no part in his future promotions, which increases his retirement. the commissioner also awarded her a settlement for the last 2 years of retirement pay, with interest, even though she never filed the qdro. commissioner totally disagreed with Laches. Do we have any chance what so ever for appeal? also, this is a WA state court, where the retirement is considered marital property. However, my husbands legal state of record for his entire military career was Alaska, not Washington. Therefore none of the retirment was "earned" in WA and I dont think should be considered marital property.
Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

Larry (Oregon lawyer) is not on today. If you need an answer today, I am happy to assist...otherwise I will opt out and allow him to address this when he returns.

Let me know

Customer: replied 3 years ago.


Yes, I would like an answer today

Ma'am, can you tell me, if you know,

Did the original order for division of property (the original decree of divorce)...did that order specify a time frame for the QDRO?

YOUR QUESTION:
Do we have any chance what so ever for appeal?

ANSWER:
Most likely, NO. Besides that, the cost of an appeal may very well outweigh any gain to be made. Not to mention that if you lose the appeal, you may end-up having to pay the other party's attorney fees, as well as your own.

FURTHER COMMENTS:
The divorce occurred 14 years ago. At that time, the divorce court adjudicated the issue of wife's entitlement to a portion husband's military retirement. It was known at that time that husband's legal state of record for his entire military career was Alaska, not Washington. I am assuming that at the time of the divorce proceeding, no objection was made regarding the court's treating the military retirement entitlement as community property subject to division incident to divorce, in accordance with Washington domestic relations law. Any objection as to the court's decisions would have had to be made at the time of the divorce. Consequently, it is now too late to assert such an objection.

Also, as expressed by the Washington Court of Appeals in Landry and Landry:

 

"We once again repeat the rule that trial court decisions in a dissolution action will seldom be changed upon appeal. Such decisions are difficult at best. Appellate courts should not encourage appeals by tinkering with them. The emotional and financial interests affected by such decisions are best served by finality. The spouse who challenges such decisions bears the heavy burden of showing a manifest abuse of discretion on the part of the trial court. The trial court's decision will be affirmed unless no reasonable judge would have reached the same conclusion."

The same is true as to objections as to the methodology used by the divorce court in formulating the division of the military retirement entitlement. While the method you are suggesting (based on rank was at the time of the divorce) is perfectly proper, logical and reasonable, it is not the method used by Washington divorce courts. As repeated expressed by the Washington Court of Appeals:

"The typical formula used to determine the total community share of a pension is the months of marriage divided by the total months of service multiplied by the monthly benefit at retirement. In re Marriage of Chavez, 80 Wash.App. 432, 436, 909 P.2d 314 (1996) (citing Bulicek, 59 Wash.App. at 638-39, 800 P.2d 394; Pea, 17 Wash.App. at 731, 566 P.2d 212). The community share is then multiplied by each party's percentage award. See Chavez, 80 Wash.App. at 436-37, 909 P.2d 314; Pea, 17 Wash.App. at 731, 566 P.2d 212."

Further, Washington has long accepted the principle that the character of property is determined under the law of the state in which the couple is domiciled at the time of its acquisition. Pension benefits are deferred income. As such, pension benefits which accrue during a term of employment are characterized in the same way as the income earned during that term of employment. Separate property retains its separate character when it is brought into Washington, unless it is commingled with community property. Thus, to the extent the military retirement entitlement was acquired while husband was stationed in ALASKA (and not in Washington), it would generally be considered as husband's separate property. But, again, the time for that objection to be made was at the time of the divorce. In the absence of timely objection, the objection is deemed as being waived.

Lastly, as to the commissioner awarding ex-wife a settlement for the last 2 years of retirement pay, with interest, even though she never filed the qdro, it needs to be understood that ex-wife became entitled to her court-awarded portion of the military retirement from the time husband commenced receipt of Military Retired Pay. The QDRO (Court Order for Division of Military Retired Pay) does not "make the award." Rather, the QDRO is merely the procedural means that authorizes the military payroll agency (DFAS) to split the retiree's disposable military retired pay at the source by deducting the former spouse's court-awarded share of the retirement payment and sending it directly to the former spouse, thus eliminating any need for the former spouse to look directly to ex-husband in order to collect her court-awarded share. To the extent the retiree received retired pay that rightfully (or at least legally) belonged to the former spouse by virtue of the divorce judgment, it was not his to keep. There was no legal error in ordering husband to pay to ex-wife the portion of the retirement money that had been awarded to her but that had been received by husband and which he then converted to his own use rather than immediately paying it over to ex-wife.

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NOTE:
I realize that this answer may not be entirely to your liking, and I regret being the bearer of information that you really don’t want to hear. But it would be unfair to you and unprofessional of me were I to provide you with anything less than truthful and honest information. I hope you understand.

Lawrence D. Gorin, Family Law Attorney
Category: Family Law
Satisfied Customers: 1544
Experience: 30+ years family law experience. QDROs, UIFSA, UCCJEA expertise.
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