Mr. & Mrs. Lewis ( US Coast Guard, 24.5yrs ) & Felicia Williford, are presently going through a NYS divorce. Mrs. Williford is presently receiving $1,418.00 monthly support from the Coast Guard. Mr. Williford has filed court papers trying to reduce this amount to approximately $1,300.00 monthly for the next two years and no further payments until he retires in approximately 5 years. The NYS Supreme Court Judge has just advised Mrs. Williford that if she doesn't take the negotiation, he'll reduce her monthly payment to $500.00 monthly. Question: Does the Uniform Service Former Spouse Protection Act supersede this Judge's intended court order? Does the $1,418.00 monthly garnishes continue until the Coast Guard receives a court order?
Thanks for the chance to help. I am an attorney with over 12 years military law experience.The Former Spouse Protection Act (FSPA) does NOT supersede the court order. It is actually a common misconception that the FSPA regulates this area. That is not the case. Let me back up and give some background information...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.Your attorney needs to review the law. It is not complex. You can see it here10 US Code 1408As I mention, the law does not have any requirements on support other than the 50% maximum division. The court can give up to 50%...or as little as 0%.You want to fight this the same way you would fight for a 401K or an IRA that was contributed to during the marriage. BotXXXXX XXXXXne: This is not complex...you are looking at a divorce where the court can treat the pension as property...your lawyer needs to understand that and once he or she does, they can petition the court for the proper result.Let me know if you have more questions.
I read the 10 US Code 1408. Is there a chance that after 24.5 years of marriage, that the NYS judge could order less than the 50% ? How do I obtain my estranged husband's actual pay ?
Less than 50%? Doubt it...not if your lawyer is doing their job. I would expect a equal division of the pension with a marriage of this length.BUT UNDERSTAND THE COUT IS NOT OBLIGED TO GIVE ANYTHING.That is why your lawyer needs to understand the law and make the analogy to a 401K...which really is what this is based on how the FSPA treats it.How to get his pay info? If he will not give it up, have your lawyer ask the judge for an order...the jude will order production if his lawyer is being silly about discovery issues.
Mr. Simmons, thank you for your time and expertise. As you can see, the judge in question is rushing things along without my discovery requests. He is now mandating that a trial start this coming Wednesday. I just made an appointment with another attorney ( a retired Coast Guard Commander ) and hopefully I'll see a better out come to this court process.Thank you again for your information. Felicia Williford
Ma'am, you need a good lawyer. One to school the judge...very few lawyers understand the FSPA...that is until they read it...but once they do, it is not complex. You need a lawyer to school the judge on the FSPA...everything else should flow from thereONE MORE THOUGHT!Your lawyer needs to be fighting for SBP.Have them look at Ch 73 Title 10http://www.law.cornell.edu/uscode/text/10/subtitle-A/part-II/chapter-73/subchapter-IIThis is insurance on the pension.You need thisYour lawyer can make it happen.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).