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Dwayne B.
Dwayne B., Attorney
Category: Military Law
Satisfied Customers: 32154
Experience:  Began practicing law in 1992
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My husband is awaiting sentencing and has been found guilty

Customer Question

My husband is awaiting sentencing and has been found guilty in federal court and faces at least the mandatory sentence of five years, though faces anywhere up to 30 years. The army will court marshal him in late October this year on similar charges. I have been informed the likely outcome of the military prosecution will be reduced to rank of major and retired. Our divorce is still pending and It is my understanding any military pension will be suspended while he serves his sentence in federal prison. This also applies to the portion I would be entitled to in divorce proceedings. Is this correct?
JA: Since laws vary from place to place, what state is this in? And just to clarify, have charges been officially filed?
Customer: PA
JA: Have you talked to anyone in the chain of command about this?
Customer: Yes, this is the answer I have been given, however I handed the evidence to authorities and therefore have victim status since my husband attempted to avoid adjudication by accusing me of planting the evidence in order to blackmail him
JA: Anything else you want the lawyer to know before I connect you?
Customer: not at this time
Submitted: 21 days ago.
Category: Military Law
Expert:  Dwayne B. replied 21 days ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today.

Customer: replied 21 days ago.
good afternoon
Expert:  Dwayne B. replied 21 days ago.

Good afternoon.

I only see one question so if you have others please feel free to ask them.

This also applies to the portion I would be entitled to in divorce proceedings. Is this correct?

That is usually true, but the way it is phrased is that when he is entitled to begin receiving retirement, you are as well. What actually happens in a divorce is that your portion is awarded to you by the judge and a QDRO (Qualified Domestic relations Order) is then entered and sent to the pension department. The pension then takes your share and puts it into a separate account, on paper, and when he is eligible to receive his benefits then you are as well.

However, I don't think that means that if he is in prison and ineligible because of that but is eligible in every other way then you have to wait until he gets out of prison. You should be able to draw the pension when he could draw it if he were not in prison. Otherwise it is unconstitutional.

You will want the lawyer to address this in the order though, just to be sure that it is clear.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work. Of course, please feel free to ask any follow up questions in this thread. I want to be sure that all of your questions are answered.

Customer: replied 21 days ago.
Also regarding VA benefits which I understand will be in play. It is my understanding that I can apply to have those included in any divorce settlement and forwarded directly to me through the VA while he is incarcerated. Is this indeed the case?
Expert:  Dwayne B. replied 21 days ago.

I am not sure about that. You can certainly have it included in your divorce decree and in any language you want, but the VA is a federal agency and doesn't have to follow the judge's order if their regulations say something different. I haven't seen this issue come up.

If you do receive VA benefits during the time he is locked up then you would be entitled to have them sent to you and I can't imagine the VA would have an issue with that, particularly if the order says for them to do it, but I'm not sure if the VA ever sends benefits directly to people or what kind of benefits you could receive.

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