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Military Alimony Questions

Alimony is the amount of spousal support that is awarded to a spouse in a divorce. The amount will vary depending upon your individual situation and will be decided by a judge. Every state has its own set of guidelines as to how alimony is established and some states do not award alimony. To learn more about alimony and alimony laws, many people ask the Experts. The Experts answer a variety of alimony questions. Below are five of the top military alimony questions answered by the Experts.

Will there be a decrease in an alimony payment if the provider starts receiving Veteran Affairs disability?

Usually, if a veteran starts receiving disability, the veteran's disposable income will lower, which means that the alimony that you receive will also drop. There is probably little that you can do about this. However, you could take the issue to court and ask that the alimony be adjusted. Because your ex is receiving more money due to the VA disability, the court may adjust your alimony payments. In order to modify the situation, you will need to hire an attorney. Before you go to court, you may want to make sure that your attorney is familiar with 10 USC 1408 and 38 USC 5301.

Is it legal to pay an ex-spouse directly instead of going through the Defense Financial Accounting Service (DFAS), and use the alimony payments as a tax deduction?

Making payments through the DFAS is a form of convenience, and is not considered a legal requirement. You may use your alimony payments as tax deductions and by using DFAS is a great resource in supplying the record of payment, but a canceled check or a current bank statement will work just as well.

Can a person be awarded alimony if their spouse is having an affair?

You cannot be awarded alimony if you and your spouse are still married, regardless of how many affairs they have. Alimony is generally determined during a divorce, not the marriage. Also, due to most states carry a no fault divorce law. This means that you probably wouldn't be awarded alimony due to your spouse's extra-marital conduct. However, some states due award alimony based this factor. Whether or not you receive alimony based on extra marital affairs will depend on your states laws viewing divorce.

Can an ex-spouse continue to collect a portion of retirement pay if they re-marry?

The former Spouse Protection Act is a federal law that grants the state to divide military retired pay as a portion of marital assets. This is an allowance, not a requirement. The courts can choose to divide the retirement or not. Generally, the court determines the amount awarded based on the years of marriage. If the couple was married for ten years during which the member was on active duty, the spouse would be qualified for direct enforcement. This means that the spouse would be eligible to receive their portion of their spouses retirement pay through the military. The two links provided will give you a better understanding of the law. The first link is an over view, the second link is the actual law.
http://www.dfas.mil/garnishment/military/uniformedservicesformerspouses.html

http://www.law.cornell.edu/uscode/uscode10/usc_sec_10_00001408----000-.html

Once you get a better understanding of the law, you will see that your portion of the retirement pay isn't a form of alimony, it is considered property, and if you remarry, you will still continue to receive it.

Can VA disability be garnished in order to collect unpaid alimony?

Generally, VA disability cannot be garnished. However, if you have unpaid child support or alimony, your VA disability can be garnished to pay the debt. If you are eligible for military retirement and choose to release a portion of the pay in order to receive VA disability, that portion can be garnished in the event that you have unpaid child support of alimony. This is discussed in the Social Security Act, which states; at 42 U.S.C. 659(h)(1)(A)(ii)(V), provides that if a veteran is eligible to receive military retired pay and has waived a portion of his/her retired/retainer pay in order to receive disability compensation from VA, that portion of the VA benefit received in lieu of retired pay is subject to garnishment for purposes of collecting unpaid court-ordered child support or alimony (also called “spousal support” or “maintenance”).

When dealing with alimony, you need to understand alimony laws. If you find yourself in a sticky situation and need legal insight, the Experts can help. The Experts cover a wide range of questions regarding alimony and military alimony law and can answer any questions that you may have. If you think you need assistance with a legal issue, don't risk your future to the advice of your friends. When you need experienced insight on laws and your rights, take your questions to an Expert for efficient and knowledgeable answers.
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Recent Alimony Questions

  • My spouse receives 40% of my retiree military pay via DFAS.

    My spouse receives 40% of my retiree military pay via DFAS. Her 1099-R has an amount with taxes taken out. My 1099-R is the 60% and has taxes taken out.
    Our divorce decree states she is to receive that 40% from DFAS. I applied for alimony deduction on IRS taxes for 2012 and 2013. IRS has now stated I cannot claim alimony deduction because she receives a 1099-R of my military pay from DFAS and not directly from me. I am in a stalemate with IRS over this. I am also under a 30-day deadline to respond with a valid excuse. IRS Topic 452 states one thing and other answers elsewhere stating different. Do I have a recourse?
  • I am presently separated from my active duty husband, I recently

    I am presently separated from my active duty husband, I recently found out he is expecting a baby from an ongoing affair, I knew nothing of. I did report this affair to the IG, he may be dismissed and if so, will not receive retirement. He wants to take me to court now to prevent me from getting any of our mutual funds, ira, 401k, alimony, stocks and bonds, on the chance he is dismissed. Could he win? Does he have a good case, when all I did was do what I had a right to do, he could have asked for a divorce long ago?
  • We contacted the IRS and filed amended returns for 2006,2007,

    We contacted the IRS and filed amended returns for 2006,2007, and 2008 claiming my husbands retirement being paid to his former wife as alimony. This happened after I contacted the IRS regarding the ability to claim it as alimony because the payments met all of the requirements under topic 452. We made sure the divorce decree did NOT state that the money was not alimony. So, in short we have been claiming the division of his military retirement paid to his former wife as alimony. Now comes the IRS starting with tax year 2011 stating this deduction is denied because it was sent to her directly from DFAS. Again, the divorce decree meets the requirements for language but the IRS is stating that we did not pay taxes on the amount BEFORE it was sent to her out of his retirement pay so he cannot claim it as alimony. This is going to cost us a lot of money. If the IRS rules have been met how can they do that? No where does it say that the payer must pay taxes on the amount before it is paid to the former spouse. What about the fact that we checked this with an IRS agent before we even filed for this deduction? Thank you for your assistance. Carla Jasper
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