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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26081
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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My wife and I divorced in 2005, after 34 years of marriage.

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My wife and I divorced in 2005, after 34 years of marriage. I granted her $575.00 per month as part of a Marital Agreement in the Retirement Section of the Divorce. The Spousal Maintenance section stipulated nothing for either party and both of us waived any rights to further support in the future. I paid her faithfully every month for 2 years until we remarried. Everything was fine until 24 May of this year when she told me that she was sick of being with me and that she was moving to Colorado, but did not have a specific date to do so. She is in fact deserting our marriage now the way I see it. My questions are: 1. Is she now entitled to the same money as she was getting from our previous divorce action? 2. Since I am now completely disabled by the Social Security Administration and also have had my Military disability raised from 10 percent of my retired pay to 20 per cent and will probably get more from my request for that to be raised further, can I keep some of the money from her since I cannot longer work? 3. Would a new divorce agreement override our original divorce? The botXXXXX XXXXXne is that I need every dollar I can hold on to so that I may live a normal life! thank you for your assistance? Michael Collier in Mesquite, Texas
Submitted: 2 years ago.
Category: Military Law
Expert:  P. Simmons replied 2 years ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

I am not sure I understand...you mention previous divorce...did you remarry her?

Customer: replied 2 years ago.

I guess you have not read my original statements and specific questions I had for this website. Do you not have what I origional;ly asked?

 

Expert:  P. Simmons replied 2 years ago.
Sorry...I see that now.

I can see the entire question now...initially it did not all show.

Can you verify, at the time of your first divorce you were retired from the military...or are you now retired military?

And can you tell me of your 34 year first marriage, how many years were you in the military?
Customer: replied 2 years ago.

Sorry for the delay, but the site was all screwed up. To answer your questions, I was in the army for 20 years 6 months and retired in 1988. My wife and I was married for all of that time except for the first 3 that I was in by myself. So, I was therefore married a total of 17 years to her while in the military and was still married to her when I retired.

 

Expert:  P. Simmons replied 2 years ago.
Thank you...and I agree...this site is screwed up!

Seriously...they are working on it now...it is undergoing a "transformation"...they plan to "relaunch" as "pearl.com" tomorrow...so it is a bit confusing today.

I am sorry for that.

On to your questions...

But first some background....I wanted to know history (of marriage and service) since that ties to what the court CAN award her and what else she may rate as benefits.

Since she was not married for all 20 of your service years, she will not get TRICARE insurance...not for life...She will get one year transition tricare...but that is it

Now...what can the court do?

I theory the COULD go back to your military retirement and give her part of it. That is possible under the FSPA (Former Spouse Protection Act).


This federal law allows the state divorce court to "divide" military retired pay (prior to the FSPA this was not possible at all). The FSPA permits, but does not require, a state court to award a share of retired pay. Its something that divorce courts had been doing for years with other pensions...the FSPA made it possible to treat a military pension the same as any other pension.

The court typically will award a portion of the retired pay based on the number of years of marriage during which the retired pay was earned, divided by the total years of service. If the spouses were married for at least ten years while the member was on active duty, the non-military spouse will qualify for direct enforcement, which means that his or her portion of the retired pay will be paid to him or her directly by the military finance office.

Since this second marriage did not overlap your active service, I would NOT expect the court to award a part of your pension...but I would not rule it out either...that leads to my next points


A divorce can be either contested or uncontested

Uncontested; Now the fastest, (and by far the least expensive) way to get a divorce is if you can agree on the terms. If you can agree on "who gets what" there is not a need for attorneys...this will cut the costs to a very small amount (court fees)

Contested; if you can not agree, this is a contested divorce. To proceed you need an attorney or need to act as your own attorney (very bad idea). Here the parties present evidence to the court on "who gets what" and the court decides. This take longer and involves attorney fees for both sides.

So if you can not agree, and particularly if she has a lawyer, you need one two, one who understands the FSPA (to protect your pension)

Now...your specific questions
1. Is she now entitled to the same money as she was getting from our previous divorce action?

No...not necessarily...the court is required to consider the information from your current marriage...so it could be she gets nothing more...it could be the court awards he something different...it all depends on the evidence you submit to the court (hence the need for a lawyer if you can not agree)


2. Since I am now completely disabled by the Social Security Administration and also have had my Military disability raised from 10 percent of my retired pay to 20 per cent and will probably get more from my request for that to be raised further, can I keep some of the money from her since I cannot longer work?

Yes. Again the need for a lawyer who understand the FSPA is key here, to help keep her OUT of your military pension.


3. Would a new divorce agreement override our original divorce?

No...it will not, at least not necessarily. But the court CAN consider it and will take it into consideration for this new decree.


If you would like any additional information or have more questions please don’t hesitate to ask!

Please remember to only rate my answer when you are 100% satisfied. IF you feel the need to click either "Helped a little" or "I expected more", please stop and reply to me via the CONTINUE CONVERSATION blue link with the issue you have. I will be happy to continue further and do everything I can to provide you with the service you seek.






Customer: replied 2 years ago.
Thank you for all the extra information you gave me, but I all ready knew about the "ACT" and the ramifications. I just did not understand about the ins and outs of the remarriage to her after a 2 year divorce in 2005. I thought you may have had case history about cases with regards XXXXX XXXXX situation in the Texas courts. Are you sure you don't have that information, or a place I can look to find it, either on the net, or in a law library? Please let me know and I can then give you the highest rating possible so you can get paid all that is due you. Regards XXXXX XXXXX from this retired Chief Warrant Officer retired (army).
Expert:  P. Simmons replied 2 years ago.
Ok...give me a few hours. I can do a bit of case law research on this...I have a service that can provide this for me...I will let you know what I find. But I have a few other matters to complete first.


Phil
Customer: replied 2 years ago.
Thank you very much! Just remember she is deserting me and I am really perturbed about this! this WILL BE a HOSTILE divorce! I will be awaiting your answer and you can send it directly to my email f you like at ...michaeltrk..at..sbcglobal..dot..net. It is a regular email address but I sent it this way to get through the sensors on this site.
Expert:  P. Simmons replied 2 years ago.
Ok...I have been researching this...and now have a question...your original decree of divorce had you paying her $570 / month.

After remarriage did you go back to court to have that order stopped?

If not, did you still pay it (perhaps a silly question...but the answer is important)??

Customer: replied 2 years ago.

No, I stopped paying her any money after we were remarried! I am probably screwed there right? No I did not go back to court to have that order stopped, as we were sharing monies and costs for items we were buying in our four years of remarriage.

I just hope that I can get away with paying her nothing, or at least decreasing the amount since I cannot work anymore.

Expert:  P. Simmons replied 2 years ago.
I am not finding any case law on this point specifically (remarriage to the same person with original support order left in place)...but there is a bit of stuff on support order after remarriage. I will dig deeper into that

Tell me...
Is she demanding that money now? Or is this proactive on your part?
Customer: replied 2 years ago.
This is definitely proactive on my part. You know that a good offense is always better if you prepare before hand! She has not asked for any money YET, but probably is because she has lost her job about a year ago and is running out of money now!
Customer: replied 2 years ago.
anything else you need?
Expert:  P. Simmons replied 2 years ago.
No, sorry..I am running down citations on these cases...give me approx 30 mins and I will have some thoughts.
Expert:  P. Simmons replied 2 years ago.
OK...I believe I have found the key issue...tell me, do you have your decree of divorce handy?

If so I want to know how they worded the support order (alimony order)?

TX law appears to have a few different ways the court can do that...I would like to see how your court did that.
Customer: replied 2 years ago.

The divorce decree reads in the Alimony/Spousal Maintenance section 7: "No spousal maintenance is ordered, as neither party has requested or agreed to such relief."

In section 9 it states that "the parties property agreement is approved and incorporated herein.

The Property agreement in item #2 Spousal Maintenance states: Mutual Waiver with no maintenance or spousal support on any parties part shall be rendered. (WOrds to that effect.)

In Section # XXXXX "Retirement Benefits" it states that verbatim "The parties agree that the wife is entitled to a fixed sum of Five hundred seventy five ($575.00) dollars per month, beginning on or about 9/1/2006 and the first day of each month thereafter until her death. the husband shall make all payments directly to the wife unless he receives notice that the wife has received payment from the United States Army.

I hope this answers your questions on this subject as this is the only portions of the decree talking money for any support. Michael

Expert:  P. Simmons replied 2 years ago.
Ahh...thank you sir...I was under the mistaken impression you were paying support..but not so

Just a moment, I need to do one more search....

Customer: replied 2 years ago.
Waiting! thank you!
Expert:  P. Simmons replied 2 years ago.
Ok...I have it...this is going to turn on the issue of separate vs community property and commingling funds.

So this is easy.

Tell me this...you used to pay her $570..during your remarriage, what happened to your retirement check? Did it go into a joint account you both had use of?





Customer: replied 2 years ago.
No, we have had seperate accounts since remarriage, but I have checks that I have given her for the past four years to help her out with expenses, but no certain amount every month! I have always also been the one to pay for the checks for the places we have gone to eat, or have other fun. I haev witnesses to that effect also.
Expert:  P. Simmons replied 2 years ago.
Sorry for the confusion on this...I focused on support. I even researched support (it was not looking good for you)

This is NOT a support case...which is very good for you in TX. More below

First, let me give a bit more info that may help you understand what is going on here.

The Former Spouse Protection Act really is the key to this puzzle.

That is since what you were paying her before was NOT support...but a property settlement. And a property settlement is not impacted at all by remarriage. Even remarriage to the same person (at least in theory)...but that begs the next question...what about the interim...I mean, you were supposed to be paying her the support during the marriage.

Yes...you heard right...what SHOULD have happened is your retirement pension should have been split, her part to her, your part to you, and maintained in separate accounts. That is how TX requires it for community property.

You did not do that.


Your fault.


And hers.

But you have a good argument that you both “co mingled” these funds. So they became community property again.

You have a weak spot that you did not pay her...but she never complained...and under the legal doctrine of laches I believe it is too late for her to complain now. I believe the money that should have gone to he is now community property.

So if you land in court you have a very good argument to show you do not owe her anything for the past payments you did not make to her.


Now...let me take one more shot at your questions

1. Is she now entitled to the same money as she was getting from our previous divorce action?

Yes. Your remarriage has NO impact on that prior divorce decree. That was a property settlement...you need to keep paying it. YOu may want to start that soon.

There is a LOT of cases that support this...one example is

Wallace v. Fuller, 832 S.W.2d 714 (Tex.App.-Austin, 1992)


2. Since I am now completely disabled by the Social Security Administration and also have had my Military disability raised from 10 percent of my retired pay to 20 per cent and will probably get more from my request for that to be raised further, can I keep some of the money from her since I cannot longer work?

She gets the $570 since that is what you decided at the first divorce. Again, your remarriage had zero impact on that...that order is still valid today. That is a GOOD THING. Seriously...there is little to no chance the court will give her any more of your pension (community property law prevents that) and since you did not award support prior? No way she is getting it now.

You are on the hook for the $570...sorry, but not for more.

NOW...you raise a good point...what if your disability goes up? Can you have her get less money from your pension.

The short answer is no. If you had agreed to give her a % of your pension vice the $570, her take would have gone down as your disability went up. The Wallace v. Fuller case supports that directly. But you did not go that route...and since you did not, you are on the hook for the $570 every month. No more, no less.



3. Would a new divorce agreement override our original divorce?

No. See above. The new divorce will split up any community property you have...she gets no more of your military pension. I seriously doubt she gets alimony.

But look....what I said earlier still goes...if she hires a lawyer, you need one as well.

But you have a strong case, since you were not paying support earlier and you have already agreed to what her take on your pension is...that is not going to change now.

Sorry for the confusion

Let me know if you have more questions.
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26081
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
P. Simmons and 2 other Military Law Specialists are ready to help you

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