i am going through a divorce (new york state) right now i was married for over 18 years of my 22 years, my wife was married to a military member for 14 of his 26 years, if my retired pay is real property why can't i use his retired pay as real property since she can go after his retirement, does that make sense to you? i am now a resident of virginia does that make a difference?
State/Country relating to question: New York
Thanks for the chance to help. I am an attorney with over 12 years military law experience.I want to make sure I understand. You are or were in the military, and your wife was married to someone PRIOR to you who was military as well? And she is getting paid each month from his pension?
no, she would not force him to pay child support he was court ordered to do. and she would not seek monies from his retirement, i am retired from the m ilitary.
Thank you...but what do you mean bywhy can't i use his retired pay as real property You want to know why you can not argue that since he should have paid her more, now you should pay her less?
Thank youBut I am sorry to have to bear bad news.THe law that allows a court to divide military pension as property rights (it is called the former spouse protection act) does allow the divorce court to divide the pension as property. But that law does not require division of the pension. So if the couple divorce and they did not divide his pension, she has no entitlement to it at all. Period. And even if she did? That would have no impact on a claim she would to your pension, since the court can divide your military pension in the exact same way (as property). Her separate property would not have any impact on her claim to your pension as marital property.So you have two problems. One, and most significant, her divorce is final...there is no way for her to go after his military pension now...so there is no way for you to do that either (even if you could)The other problem is that her claim to your pension (if she has one) is not impacted at all by any separate property she may have.Sorry to have to bear bad newsLet me know if you have more questions.
Retired Marine Corps Lawyer, Veterans Services Officer (VSO)
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