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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26511
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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USFSPA allows the court to apply PA law in the division of

Resolved Question:

USFSPA allows the court to apply PA law in the division of a divorcing service member's disposable pension pay, subject to some restrictions - What are the restrictions? My ex-husband, retired Military, has been awarded VA Disability which has changed the majority of his pension to "non disposable". We divorced over 10 years ago - at that time we both signed an agreement (not filed in court) that my portion of his pension would not be affected by disability. Now he is suing me for overpayment of his military pension. What are the "subject to some restrictions"?
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 restrictions are contained in the FSPA. You can see that at 10 usc 1408.

 

What is your reference to "some restrictions"...are you getting this from some website?

Customer: replied 1 year ago.

Yes - a website. Trying to decide if I have any chance in fighting this in Court. I understand that the VA portion of his pension is nondisposable. I am being sued over 6k to reimburse him. Should he be suing me personally or should I have been contacted by the government? I guess my original question is - are there any times that the disability part of the pension can be part of equitable distribution? Would our signed agreement have any bearing?


 

Expert:  P. Simmons replied 1 year ago.
Thank you

That begs the question....how is it he is suing for overpayment?? Was he paying you directly? Or were you being paid by DFAS?
Customer: replied 1 year ago.


DFAS pays me directly. He has filed a petition for contempt equitable distribution stating I have been overpaid by DFAS. In summary he states - the court order awarded me a portion of his retirement benefit pursuant to USFSPA. I was overpaid by DFAS from October of 2005 because the VA took over 7 years to complete his disability determination. He includes many spreadsheets which he prepared that shows his VA disability increasing from 10% in 2006 to 40% in 2012.


 


Does our signed document, which I just learned my lawyer never filed in court, have any merit?


 


Total he is suing me is actually over $7,500, and of course my monthly pension payment has decreased based on his disability.


 


Separate issue - I suspect that his claimed disability is fraudulent. He states back and shoulder injury, yet he is very physically active and ranks as top bowler in his state. He threatened me during our divorce stating I would never get a penny of his pension. That is why I requested the document be signed.


 


 


 

Expert:  P. Simmons replied 1 year ago.
Thanks

OK...that makes sense.

First, let me go back to your original question

What are the restrictions?

Again, the restrictions are contained in the law. You can look to the law yourself (you can see it here http://www.law.cornell.edu/uscode/text/10/1408 )

And yes...it is true, that the law specifically exempts disability pay.

So in theory, this action taken by him (applying for VA compensation) could lower his disposable income. And that would impact his disposable retired pay.

One more...is he suing you in small claims? Or did he hire a lawyer and file this in district court?
Customer: replied 1 year ago.

 


He filed himself in Common Pleas Court. He filed without an Attorney. Since our divorce was finalized we represent ourselves without lawyers. I will be meeting with a local attorney and going to hearing represented this time. This is a significant amount of money and I need help with this matter.


 

Expert:  P. Simmons replied 1 year ago.
Thank you Ma'am

Meeting with a local attorney is a good idea.

Pick one who understands family law...and who may be able to file a counter claim to modify your decree of divorce.

You have a few things happening here...

1. You mention

We divorced over 10 years ago - at that time we both signed an agreement (not filed in court) that my portion of his pension would not be affected by disability.

Not filed in court is a problem. But it may be you can still use this to reopen the decree of divorce. His action of taking disability will allow him to "waive" his pension dollar for dollar, this reduces your money from DFAS. If you had an agreement that this would not happen? It may be you can use his current suit as leverage to get back into court and reopen that decree of divorce and modify it (to ensure you continue to receive an appropriate amount of money each month)

This is going to be an uphill battle (it is not easy to modify a decree of divorce)...but it may be worth the effort, since if you can not modify the decree, you stand to loose that income each month going forward.


2. Technically, he did not loose any money. Your lawyer will need to look at Title 38 US Code...there are provisions that allow him to waive money from military pay to received compensation (tax free). But he is not required to waive...so you can defend on these grounds (that he did not loose any money here...and this is a ploy to try and take money from you)

getting a lawyer is a great idea...make sure they understand the FSPA AND Title 38 US Code...that can help them best respond to this challenge....again, I would see this as an opportunity to get back to court and modify the decree of divorce to ensure you get your fair share of that pension




Customer: replied 1 year ago.


Thank you for your expert advice. It has been an "uphill battle" since we separated over 15 years ago.


 


My portion of his pension was used as income that modified the child support I received and my filed federal tax return. Can those factors be used to "adjust" the amount I owe him?

Expert:  P. Simmons replied 1 year ago.
Ahh....the plot thickens....
Yes...of course. He wants that $7K...but will not give you credit for child support?

Silly...silly on his part to take this action.
Seriously, this may be just what you need. An "opening" to get that decree modified.
But get a good lawyer...one who understands title 38 us code and how it impacts retired pay. I think you have a shot here....
Customer: replied 1 year ago.

Thanks again - silly me for thinking I was done with this mess once we signed the divorce papers.

Expert:  P. Simmons replied 1 year ago.

Yes ma'am



best of luck in this fight.

Phil

 

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26511
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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