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P. Simmons
P. Simmons, Lawyer
Category: Family Law
Satisfied Customers: 26647
Experience:  16 yrs. of experience including family law.
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I recently had a Family Law Judge in Alabama rule that military

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I recently had a Family Law Judge in Alabama rule that military retirement for the military member is included in child support computations, but the percentage of military retirement awarded the ex-spouse (non-military member) is not to be included in the computation of child support as income due to its being divided as "property" at the time of the divorce.
If the division was as "property" at the time of divorce, would the military retirement be totally removed from the child support computation for both parents?
Submitted: 1 year ago.
Category: Family Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

It is correct, under the Former Spouse Protection Act (Title 10 US Code Section 1408), the military retired pension is awarded to a former spouse as property.

That is consistent state and federal law...since the pension was earned during the marriage, the portion earned during the marriage can be divided as property. The same is true for any pension, really, or for IRA's, 401K's, etc.

But I am not sure I understand what you mean by

but the percentage of military retirement awarded the ex-spouse (non-military member) is not to be included in the computation of child support as income due to its being divided as "property" at the time of the divorce.


Are you saying that the family court judge will not include this income received by the former spouse as income for child support purposes?
Customer: replied 1 year ago.

I receive 65% of my retirement. My ex-spouse received 35%. The ruling specifically included my portion of military retirement for child support computation, and specifically excluded my ex-spouse's portion of my military retirement for child support computation.


 

Expert:  P. Simmons replied 1 year ago.
And you appealed this? The appeals court approved this??
Customer: replied 1 year ago.

My attorneys filed for reconsideration of the trial judge. She just affirmed her earlier ruling.


The Court of Civil Appeals affirmed (no - comment) the trial Judge's ruling.


 

Expert:  P. Simmons replied 1 year ago.
That does not make sense...if you look at the rules (you can see them here) http://www.alacourt.gov/pdfppt/rule32.2009.pdf

You see it states

(B) Definitions

(1) Income. For purposes of the guidelines established by this rule, "income"
means actual gross income of a parent...

(a) "Gross income" includes income from any source...

So that sounds silly

That is, the 65%/35% is from the same source...it makes absolutely NO sense to count as income for one and not for the other...

Give me a moment, I want to do a case law search...




Customer: replied 1 year ago.

I have AL Rule 32 sitting right in front of me (given to me by my attorneys), and I read it the same exact way you and my attorneys read it.


 


I did not have an extra $25k lying around to take this issue to the AL Supreme Court, but I know this ruling may effect veterans paying child support across the state of Alabama.


 


This ruling will definitely continue to effect me as I have a 15 year old son with a disability who will most likely receive child support the rest of his life.

Expert:  P. Simmons replied 1 year ago.
$25K for the supreme court? That seems steep...it is an appeal with a single in person brief. I know appeals lawyers are expensive...but I bet if you shop around you can get a better rate.

I did a quick case law search and found


Jenny Kim Santiago
v.
Derek Anthony Santiago
(NNN) NNN-NNNN


Here is a key passage

At the time of the modification hearing, the husband was paid $2,315.60 per month in military-retirement income, and the wife was paid $992.40 per month in the husband's military-retirement income, per the parties' divorce judgment. At the time of the parties' divorce and at the time of the modification hearing, the husband also received $857 per month in Veterans Administration disability benefits


NOTE: the appeals court uses the term "military-retirement income"

It is income. No if, ands or butts


But you need to appeal to win this.

You have a great case...the Santiago case helps establish that.

But you will need to appeal to win this.

Ideally with an attorney who can show the court case like like Santiago that helps prove the point

Customer: replied 1 year ago.

Thanks Mr SImmons. Have a great day.

Expert:  P. Simmons replied 1 year ago.
Yes sir

Best of luck in this fight

P. Simmons, Lawyer
Category: Family Law
Satisfied Customers: 26647
Experience: 16 yrs. of experience including family law.
P. Simmons and 5 other Family Law Specialists are ready to help you

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