My wife has filed for divorce in the statoe of Nebraska and is currently residing in that state. I am stationed in Newport News, VA. and reside in that state. Since I AM NOT a resident of Nebraska, can she ask to be awarded any part of my military retirement income?
Thanks for the chance to help. I am an attorney with over 12 years military law experience.Short answer: Yes. You bet she can. That comes from 10 US Code 1408. You can see the law that applies herehttp://www.law.cornell.edu/uscode/text/10/1408This is federal law that allows the divorce court to divide the military pension as property. So the court has jurisdiction to order you pay a portion of your pension to her. No issue there.It may be a good idea for you to hire a Nebraska lawyer to assist you with this. The court can award up to 50% of the pension...and DFAS will pay it to her directly. If you want to make sure she does not get too much of your pension, hire a lawyer to fight this case.
What about provisions as stated in para C4 of above reference?
That goes to jurisdiction. The court must have jurisdiction before they can render a judgment. If they do not have jurisdiction? Then you do not have to answer the complaint. That is 1st year law school stuff...a court can not proceed in a case without jurisdiction. I was under the impression you were involved in an active divorce case and therefore the court had jurisdiction.
I am in an active divorce case but if I read the ref. correctly--the court cannot award any part of my Retirement pay to spouse because the court does not have legal jurisdiction over me since I an not a resident of that state.
Not if you are in an active case.If you have responded to the original complaint or have made any appearance, then you have consented to jurisdiction and the court has jurisdiction.What this statute basically says is that in a default judgment the court can not divide the military pension. So, for example, if she filed and served you notice but you never responded, the court would not have jurisdiction.But if you respond to the original filing, then you have consented to jurisdiction...once that happens? They have you.So if you answered the complaint or made any appearance or filing, the court will have jurisdiction and can divide the pay.
Thank you for the advise. It doesn't seem very fair to the active duty military member especially since the spouse has done nothing to enhance that military members career. Thanks, XXXXX XXXXX the explanation of the law.
You are welcome.Please let me know if you have more questions, if not please rate the answer so I get credit for my work.
Retired Marine Corps Lawyer, Veterans Services Officer (VSO)
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