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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26285
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I am a retired military member and my wife wants a divorce.

Resolved Question:

I am a retired military member and my wife wants a divorce. I was wondering how much of my retirement I have to pay her and for how long? I served 21 years and we were married for 11 of those years. Additionally, If I agree to pay for our childrens Braces, health care until they are each 23 and 50% of college costs, will my child support payments be lower?

Thank you,
David
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

The law that covers this is found at Tile 10 US Code Section 1408. It is called the Former Spouse Protection Act. IT allows division, by the divorce court, of the military pension. If you look at the law (you can see it here 10 USC 1408) you see that there is no set percentage required by the law. The amount is totally at the discretion of the trial court. So they could, for example, give her up to 50% (that is the max allowed under the law).

OH is an equitable distribution state...that means the court will divide the property of the marriage according to what they find fair.

Based on what you describe? I would expect her to get 25% (1/2 of 1/2) since she was married for half your career. But the court can give more or less, mostly depending on if you can agree.


You see, 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 agree? Then it is easy...and you both save money and time.

This is separate from child support...the court decides that.

You can certainly offer to pay for braces and health care (though TRICARE will cover your kids...you do not need to agree to that...the court can order it), but the court will calculate support based on relative income and needs of the kids alone...not much to negotiate here.





Customer: replied 1 year ago.
Based on our "conversation" I would expect that we will attempt to file for an uncontested divorce. I think her biggest concern as that she get what she believes she is entitled to. How long to I have to pay her? 10 years?
Expert:  P. Simmons replied 1 year ago.
Pay what? Retired pay? Support?
Customer: replied 1 year ago.
retired pay. I know any child support would have to be paid until my kids reach the age of 18 respectively.
Expert:  P. Simmons replied 1 year ago.
Retired pay is considered property under 10 USC 1408. So typically it would be paid for life (yours or hers, whichever comes first)

If she will agree for a lesser term? Good for you. But the law allow the court to order for life.

Customer: replied 1 year ago.
Thanks for all the information. Would it be a realistic (smart) to ask for a provision be placed in the divorce paperwork that if she remarries (legal, common law, etc) then I no longer have to pay her?
Expert:  P. Simmons replied 1 year ago.
sure...if she will agree to that.

Just understand, 10 USC 1408 allows division as PROPERTY...it is not support. So the court is not tied to the same rules as when they issue a spousal support order. But if she agrees to limit herself? Good for you. I would not...were I her lawyer, I would not let you get away with that. But that may be a good reason to avoid getting her to hire a lawyer...
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26285
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
P. Simmons and 3 other Military Law Specialists are ready to help you
Customer: replied 1 year ago.
One more question (for today), what about disability? As I understand it my disability is not something that are is to be divided. I mean I'm the one with the disability, correct?
Expert:  P. Simmons replied 1 year ago.
Technically, no.

Under the US Code the court can not partition the disability pension.

But Supreme Court case law holds that the trial court can consider that income in determining support, including spousal and child support. So that money is "in the mix" if you go to trial.

Customer: replied 1 year ago.
How can a court say it is income when the IRS doesn't?
Expert:  P. Simmons replied 1 year ago.
Because the Supreme Court says so.

Rose v. Rose - 481 U.S. 619 (1987)

The court can consider VA compensation as income for support puposes.
Customer: replied 1 year ago.
I currently have a two seat car that I have for use when I'm home. Given the situation, should I attempt to purchase a four seat car before my wife and I seperate? So I can pick up my kids to visits, etc.
Expert:  P. Simmons replied 1 year ago.
Sir, that I can not tell you...that is, it would violate the terms of service of this website for me to provide you legal advice on specific financial transactions.

Sorry.

Customer: replied 1 year ago.
Really? How about from a legal pre-divorce stand point, would it be in my best interest? Is that general enough?
Expert:  P. Simmons replied 1 year ago.
The problem is that without reviewing the entire case, which can only be done in the context of an attorney/client relationship, any information would be no more than a guess...and of little value to you.

There are many factors that come into play, including the concept of marital waste. I'm not trying to evade your question, but to tell you that only an attorney who has knowledge of all of the facts of your case can assist with such a question.
Customer: replied 1 year ago.
Marital waste, what is that?
Expert:  P. Simmons replied 1 year ago.
It is a legal concept that can apply when one party, prior to the divorce, spends marital property. If the court finds, for example, that you purchased this car in attempt to get more of the marital estate they can hold that against you in the division of the marital estate.

Customer: replied 1 year ago.
Oh; If I were to get a vehicle, I was going to do it in my name only and not use any marital property (cash). I was concerned that if I don't do it before it would be harder after all the debt is divided up.
Expert:  P. Simmons replied 1 year ago.
Well, if you do it with your own money (not marital property) then it is a non issue...no issue at all.
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26285
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
P. Simmons and 3 other Military Law Specialists are ready to help you

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