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Lawrence D. Gorin
Lawrence D. Gorin, Lawyer
Category: Military Law
Satisfied Customers: 1506
Experience:  Military & Family Law. 30+ years experience. USFSPA pension division expertise.
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I was married to my ex husband for 7 1/2 years. He was in

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I was married to my ex husband for 7 1/2 years. He was in the Army full time for almost 5 of those 7 1/2 years. Since our divorce he has been active duty Army National Guard the majority of which as a recruiter. I have 3 children with him. His MOS is a combat one but he has never serve a tour yet. While I was married to him he serve a hardship tour for one year in Korea. My divorce lawyer did state in my divorce decree I would get a portion of his retirement based on the years we were together during his military time and a point system. It is my understanding that a point system has to do with the Army National Guard but not if they are full time. Can you advise how those retirement points work and if they would be applicable if he is now considered full time.

He has since been married two more times. He had another child with wife no. 2, but has no other children with wife no. 3 whom he has been married to for 7 years and he has been with her in the military for all of those 7 years. But has served no hardship tours and/or deployments.
Submitted: 4 years ago.
Category: Military Law
Expert:  Lawrence D. Gorin replied 4 years ago.
NEED MORE INFO.....
Is that all your divorce decree says? “Wife is hereby awarded a portion of husband’s military retirement.” Or does it say something more and specific (which I suspect is the case)?

Please take out your divorce decree and type-out -- word for word -- exactly and precisely, the provision of the document that refers to the division and award of the military retirement. Exactly what does it say? Only then can we intelligently respond to your inquiry.

Also, what if anything does his divorce decree from Wife # XXXXX say about the military retirement? (Again, we need the precise and exact wording.)

Also, for how long as the presently-existing child support order been in effect?
Customer: replied 4 years ago.

Retirement Plans

 

A qualified Domestic Relation Order Shall Be entered allocating Plaintiff, which is me, one-half of the marital portion of defendent's military retirement benefits in accordance with the Woodward formula, considering defendent's retirement points earned during the marriage. The Domestic Relation Order was filed showing that it is hereby ordered:

 

Amount to be paid to the Alternate Payee: The Alternate Payee is awarded a percentage of the member's military retired pay, to be computed by multiplying 50% by a fraction, the numberator of which is 1214, representing the number of retirement points earned during the marriage (he was full time Army during our marriage though and I have been told that points are for National Guard Army part time soilders), divided by the member's total number of retirement points earned. (After we were divorced he was hired by the Army National Guard year to year until he got an assignment as a recruiter.)

 

Time and Manner of Distribution. The benefit payable to the Alternate Payee shall commence on the date this order is implemented. Payment shall be consisitent with teh distribution options available and the therms and conditions of the Fund prevailing at that time.

 

Participant's Benefits. The participant's benefit under the Fund shall be reduced by the value of the benefit to the Alternate Payee, determined as the date benefit payments are commenced to the Alternate Payee.

 

Names and Addresses. The name, current mailing address and social security number of the Participant and Alternate Payee are:

 

which I have updated since this order.

 

Death. a. Alternate Payee. IF the Alternate Payee dies before she has commenced receiving benefits from the Fund, then to the extent permitted by law, benefits due to the Alternate Payee shall be paid to the Alternate Payee's estate or designated beneficiary. b. Participant. To the extent permitted under the Fund, the Participatn's death shall not affect the Alternate Payee's rights to receive benefits under the Fund.

 

Additional Provisions. In case of conflict between the terms of this QDRO and the terms of the Fund, the terms of the Fund shall prevail.

 

The Fund's administrator and the Alternate Payee may modify by written agreement any provison of this QDRO without further court approval as long as teh change has no adverse effect on the Participate. The Fund's administrator may unilaterally modify any term of this QDRO to the extent necessary to comply with applicable law.

 

All notices to be given or documents to be sent to the Fund's administrator shall be deemed given to teh Fund on the date mailed or hand delivered.

 

Distributions to the Alternate Payee under this QDRO shall be taxable to the Alternate Payee and not to the Participant.

 

I had the child support order updated when my second child turned 18 but still was in his senior year of high school because my ex husband tried to say he no longer needed support but the court ordered it in my favor. This was in October or November of 2008. He has since graduated and the child support order amount was changed to reflect the same. So it has almost been two years but there has been a drastic change, that being my son graduating.

 

My ex has never fought me on the amount he makes financially which I have always had to guess because I believe he knows he is making much more. His current wife has two children from a previous marriage and her ex does not pay child support but I know she has a case through Office of Recovery Services and i'm not sure what she has been paid. Her children are 16 & 13. So when they got married they were approximately 9 and 6. She has not worked consistently full time because according to my ex "it is too hard on her." Her children are old enough that the court should look at it and tell her she is more than capable of working full time and her making minimal should no longer play a pawith my child support. I am a hard worker and work double time and a half, along with my spouse, to support our children. My ex does nothing extra, never has and probably never will! He also also basically stated that "his attorney tells him he only has to pay what is court ordered." and "I am glad you do all that you do for our children but I can't." Maybe he would be able to if his current spouse worked. I believe this should be addressed, as well as him still staying to our youngest that he buys more for her younger sister (child from 2nd wife) because he pays me more in child support. This is a violation of the child support order to discuss any part of the child support with our children.

 

I am extremely frustrated and have worked so hard at being cordial with my ex. Because I have dragged my feet about going to ORS now I have his current wife upset with me. My oldest is in college and I'm assisting him with that. My second boy just had a baby with his girlfriend and I'm assisting them. So even though I no longer get assistance from their dad and he does not think about assisting them I am still their mother and will do what I can to assist them as they choose to be responsible too. It is my belief once a parent always a parent. So I do what I can, usually it means working harder, to assist where I choose to and am able to. I have 5 children total 4 of the 5 still live at home, as well as my son's girlfriend and their two week old baby.

 

He will be eligible for retirement in two years and so I want to find out what else I must do to start this benefit so that I can assist my children even though two of them are adults when they deserve. I also want to know if I am eligible for my share once he is eligible to retire even though he might still be working in the military on a second retirement (is that a possibility?). How do I go about find that out as well. Also, when you retire do you only get salary and no longer BAH & BAS and other misc. pay???

 

Thank you for your assistance with answering some of my questions. As soon as I learn a little more than I can maybe hire an attorney who will assist me with this mess.

 

Sincerely,

 

 

Holly J. Ziegenhorn

 

I believe my ex was the Plaintiff in his 2nd divorce. He has one child with her. They were only married for maybe 3 years (1998 to 2001).

 

 

Expert:  Lawrence D. Gorin replied 4 years ago.
ANSWER
Unfortunately, the lawyers and the judge involved in your divorce did not understand the military retirement system and how is applies when divorce occurs. They either were ignorant of or oblivious to the Uniformed Services Former Spouses' Protection Act (USFSPA), 10 USC § 1408, which is the law controlling this particular issue.
http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00001408----000-.html

Instead, what the lawyers and the court did in your case as to treat husband’s entitlement to receive military retired pay as if it were a private-sector retirement plan that is controlled by the federal ERISA law (Employee Retirement Income Security Act).

Apparently not understood is that the ERISA law (providing for the use of Qualified Domestic Relations Order (QDRO) to divide a divorcing spouse’s interest in a retirement plan, does NOT APPLY to the government’s military retirement system. The means, methods, procedures, terminology, rights and liabilities, limitations and restrictions applicable to a state divorce court’s treatment of a military retirement entitlement under the USFSPA law are entirely different than those applicable to private-sector retirement plans that are controlled by the ERISA law.

The fundamental problem in your case (which you will soon come to realize) is the failure of the lawyers (particularly YOUR lawyer) to understand (and apply) the correct law so as to protect your legal and financial interests. (You might want to confer with some other attorney about a possible malpractice lawsuit against the lawyer who represented you in your divorce.)

Among other distinguishing features, a QDRO, as defined in 26 USC § 414(p), does not apply to the division of military retirement entitlements. As to the division of military retired pay incident to dissolution of marriage, there is no “Fund” or “Fund administrator,” nor is there a “plan participant” and an “alternate payee.” What the lawyers did in your case (trying to apply ERISA’s QDRO law to the division of military retired pay) is like trying to smash a round peg into a square hold. To say that “Payment shall be consistent with the distribution options available and the terms and conditions of the Fund prevailing at that time,” and that “The participant's benefit under the Fund shall be reduced by the value of the benefit to the Alternate Payee, determined as the date benefit payments are commenced to the Alternate Payee,” is TOTALLY WRONG and will not work with the entitlement to military retired pay. Further, a provision that says “To the extent permitted under the Fund, the Participant's death shall not affect the Alternate Payee's rights to receive benefits under the Fund” is utter nonsense when it comes to the payment of military retired pay. And also very important (and not understood) is that the USFSPA law does not allow the divorce court to divide a servicemember’s entitlement to receive “military retired pay” and award a portion thereof to the former spouse. Rather, the state court is limited to dividing only “DISPOSABLE retired pay,” as that term is specifically defined in the USFSPA law. (Also, “disposable retired pay” is a “pre-tax” amount; it is not the same as “net pay” as that term is commonly understood.)

Typically, a QDRO as applied to the division of private section retirement plans requires the “Fund administrator” to deduct from the “participant’s” retirement benefit the portion awarded to the “alternate payee” and make the payment directly to the alternate payee. But due to the USFSPA limitations as applied to military disposable retired pay, and your marriage being of less than 10 years duration, DFAS (the military’s payroll agency) will not be involved in your case and will not make any payment to you of the court-awarded share of your ex-husband’s disposable retired pay. Instead, you will have to look to and rely upon your ex-husband to write a check to you each month in order for you to get your court-awarded share of his disposable retired pay. And because DFAS will not be involved in your case, there is absolutely no need nor purpose for any special type of court order (be it a “military QDRO” or a “Military Retired Pay Division Order.” (Hope you did not pay any money for such to be prepared.)

As to the method to be used for calculating the division of a retirement interest incident to divorce under Utah law, that state generally uses the same approach used in most other states, applying to “coverture fraction” formula when divorce occurs prior to retirement. The methodology was enunciated by the Utah Supreme Court in the case of Woodward v. Woodward, 656 P2d 431 (Utah, 1982), in which the Utah Supreme Court concluded that (unless the parties agree to some other arrangement) the appropriate method for dividing defined benefit retirement interests when divorce occurs before the employee spouse has gone into retirement status and the present value of the future retirement benefit cannot accurately be determined at the time of the divorce is to use a “deferred distribution” approach based upon fixed percentages. The court said that “the marital property subject to distribution is a portion of the retirement benefits represented by the number of years of the marriage divided by the husband's [or wife's] employment. The wife [or husband] is entitled to one-half of that portion.” Woodward, 656 P2d at 433-34. This is what the “Woodward Formula” is all about.

For more info as to just how this applies to military disposable retired pay, check out the following websites:
http://www.abanet.org/family/military/silent/mpd_scoutingterrain.pdf
http://www.abanet.org/family/military/silent/mpd_servicemember.pdf

NEXT, here’s what my colleague in North Carolina, Col. Mark Sullivan (USA ret.), tells us about dividing national guard and reserve service pension rights incident to divorce:
-----> There are two key considerations to keep in mind. First, since Guard and Reserve personnel do not begin to get paid until age 60 (regardless of when they retire), this deferral of payment must be taken into account in the negotiations and the present value calculations. The second consideration concerns the marital fraction. In those cases where the marriage and the service career do not exactly overlap, the nonmilitary spouse usually receives one-half of the marital fraction times the servicemember’s pension benefit. This marital fraction should be computed twice -- once using marital years of service over total years of service, and then again using marital retirement points over total retirement points -- to determine which computation will best benefit the client.
-----> To see what a difference this might make, let's take an example. Major Bill Smith has five years of Army active duty and 15 years of Army Reserve service. He married when he left active duty. When dealing with Reserve or National Guard issues, be sure to ask the servicemember for a copy of his most recent “points statement” to see how many points have been acquired and how many were during the marriage. To calculate the marital fraction using points, calculate the points he acquired during active duty by multiplying 5 times 365 to get 1825 points. Then count his Reserve points. Assume that he acquired 60 points a year (for weekend drill, "summer camp" and membership) for 15 years, or 900 points. Thus his total points at 20 years are 2725 [1825 + 900], of which 900 (or about 33%) are marital. This should mean that 33% of his retirement pay (assuming retirement and date of separation both occur at year 20) is marital. If we apply the marital fraction using years to his retirement pay, however, then his pension is 75% marital (15 years/20 years = 75%).
-----> What a difference! Recognition of these two ways of calculating the marital benefit, and the difference when Major Smith's pension is calculated, is essential to competent representation in the Guard/Reserve pension case. Once again, the federal statutes do not tell us what to do, what fraction to use or what results to expect. This is state-law territory, not something set out in the USFSPA.

ALSO, military retired pay ends when the military retiree dies. Unlike private sector retirement plans, there is no provision for military retired pay to be paid to anybody other than the retired servicemember while he is still alive. No provision to continuation of such retired to a surviving spouse. Thus, unlike private sector ERISA plans, USFSPA makes no provision for and Qualified Joint And Survivor Annuity (QJSA) or a “Qualified Pre-Retirement Survivor Annuity” (QPSA).

However, the military does provide a special life insurance program known as the Survivor Benefit Plan (SBP). This will provide a monthly annuity for a military retiree’s surviving spouse in an amount generally equal to 55% of what the retiree had been receiving at the time of death. But this can only be provided upon the “election” of the military retiree. But in the case of divorce, the court may include a provision in the divorce decree that orders the military spouse to make such an “election” for “former surviving spouse SBP coverage.” And it if this done, a “DEEMED ELECTION” application must be submitted to DFAS within one year from the date of entry of the order directing that the election be made. And failure to timely submit the deemed election application with the one-year window allowed for doing so will result in the total loss of surviving former spouse SBP benefits. (I note that your divorce decree says absolutely nothing about your ex-husband being require to elect SBP coverage for your benefit and protection. THIS SHOULD HAVE BEEN DONE!! And it was your lawyer’s responsibility to protect your interests.)

In sum, in order for the former spouse to remain eligible for survivor benefit plan coverage, the member must make an affirmative election for such coverage within 1 year of the date of the decree of divorce, dissolution or annulment. If the member neglects or refuses to make such affirmative election it is possible to protect the former spouse entitlement to the SBP coverage by having the former spouse make a "deemed election" for such coverage within the one year time limit. Accordingly, the member shall be deemed to have made the necessary elections thereby preserving the former spouse entitlement to the SBP coverage.

NEXT.....Unlike ERISA retirement plans, USFSPA makes no provision allowing you to be eligible for receipt of your share of the member’s disposable retired pay prior to his actual commencement of benefits. Also, a retired servicemember who is otherwise eligible may receive only “military retired pay,” as there really is no “military pension.” And there is no “second retirement.” And when he leaves military service, there is no provision of BAH & BAS and other misc. pay. Just retire pay.

FINALLY, here are some websites that will give you far more information than I can provide in this limited space. Be sure to look at each one of them (and hopefully all of the URLs work).....

Everyday Errors in Military Divorce Cases --
http://www.abanet.org/family/military/militarydivorce_errors.pdf

How To Find A Military Divorce Attorney --
http://www.abanet.org/family/military/eagle_militarydivorceatty.doc

Dividing Military Retired Pay (from DFAS)
http://www.dfas.mil/garnishment/retiredmilitary/speech8.pdf

Higdon on Military Retirement Divorce
http://www.texasfamilylawinfo.com/docs/Higdon-Military_Retirement_Divorce.pdf

The “Silent Partner” series at the ABA website:
http://www.abanet.org/family/military/silent/mpd_scoutingterrain.pdf
http://www.abanet.org/family/military/silent/mpd_servicemember.pdf
http://www.abanet.org/family/military/silent/mpd_spouse.pdf
http://www.abanet.org/family/military/silent/pension_division.pdf
http://www.abanet.org/family/military/silent/mpd_crdp_crsc.pdf
http://www.abanet.org/family/military/militarydivorce_errors.pdf

The Uniformed Services Former Spouses’ Protection Act (USFSPA) is codified in the United States Code (USC) as 10 USC § 1408. Verbatim text of the entire federal statute is online at:
http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00001408----000-.html
http://www.militarydivorceonline.com/section1408.html
http://supportavet.us/usfspa.html
http://law.justia.com/us/codes/title10/10usc1408.html

And still more....
http://www.dfas.mil/militarypay/garnishment/fs-qa.html
http://www.dfas.mil/militarypay/garnishment/fsfact.html
http://www.dfas.mil/garnishment/retiredmilitary.html
http://usmilitary.about.com/cs/generalpay/a/retirementpay_2.htm
http://usmilitary.about.com/?once=true&
http://www.military.com/benefits/legal-matters/usfpa-overview

Apologies in advance for any duplicate links and any that may not work.

OK. That’s all I can offer for now. Hopefully, I have provided enough here to justify the $15 expense. I wish you well, and I thank you for allowing me to answer your questions.

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Edited by Lawrence D. Gorin on 8/10/2010 at 8:27 PM EST
Lawrence D. Gorin, Lawyer
Category: Military Law
Satisfied Customers: 1506
Experience: Military & Family Law. 30+ years experience. USFSPA pension division expertise.
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