My divorce was in Virginia 1. My wife receives 23% of my military retirement. Does the remaining 77% count as gross income when calculating alimony? 2. Does my veterans disability benefit count as gross income when calculating alimony?ANSWER
First, unless your Virginia divorce decree expressly says otherwise (which would be most unusual), your entitlement to receive military disposable retired pay
was undoubtedly treated as a marital property asset, to the extent it was acquired during the nine years of marriage
. (Assuming 20 years of military service, 9 of which occurred while marriage, the “marital portion” of the asset would be 9/20, or 45%. Wife’s share would then be one-half of the 45%, which comes out to be 22.5%, most likely rounded off to be 23%. Assuming that to be the case, the 23% of your disposable retired pay that you pay to your ex-wife is NOT “alimony” for divorce court purposes. Rather, it was awarded to your ex-wife as being her share of a marital property asset. Akin to the divorce court having awarded her 23% of the money in a savings account. A property division award make by a divorce court (unlike an alimony or spousal support award) is not subject to future modification.
In sum, for state divorce law purposes, the 23% of your disposable retired pay that you pay to your ex-wife is treated by the divorce court as a division of a marital property asset, NOT as a payment of alimony. (However --- and this gets a bit confusing, I realize --- the 23% share of your disposable retired pay that you pay directly to your ex-wife is treated as “alimony” under the federal income tax laws and is thus tax deductible to you, and taxable income to your ex-wife. See Proctor v. IRS Commissioner
In military divorce cases, the court generally treats a military spouse’s entitlement to present or future disposable retired pay as a property asset (as allowed by the federal Uniform Services Former Spouses Protection Act (USFSPA)
, 10 USC § 1408). The non-military spouse is generally awarded one-half of the “marital portion” of the asset. And then, IN ADDITION, the court may also make an award of alimony (referred to in most states as “spousal support”). Again, this is in addition to the property division award. http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00001408----000-.html
Given the facts you are presenting, I suspect you are viewing the 23% of your disposable retired pay that you pay to your ex-wife being “alimony” even though technically and legally it is not. (If you are in fact paying alimony IN ADDITION to the 23% of your disposable retired pay, please so advise so that my assumptions may be corrected.)
If in fact the money you are paying to your ex-wife really is alimony (spousal support), and really is NOT property division, the military disposable retired pay to you receive (and that is not paid over to your ex-wife) would properly be considered as an income source to you for purposes of determining your financial ability to pay alimony. Likewise, your VA disability may also be taken into consideration for purposes of determining your financial ability to pay alimony. (No portion of your VA disability pay may be “awarded” to your ex-wife, but the court may nonetheless take it VA disability pay into consideration. as an income source when calculating your financial resources for alimony purposes.
Next, as to the authority to Texas to modify the terms of the alimony obligation established by the Virginia court, you may run into a pretty big problem.
Given that the Virginia court established the alimony award, the substantive law of Virginia thereafter retains “continuing, exclusive jurisdiction” over the alimony award, including the durational aspects. The alimony provisions of the Virginia divorce judgment remain the “controlling order,” and no other state (not even Texas) can change or modify the alimony award in any manner than could not be done by the Virginia court itself under Virginia divorce law.Virginia law --- § 20-88.43:2
-- says “A court of the Commonwealth issuing a spousal support order consistent with the law of the Commonwealth has continuing, exclusive jurisdiction to modify the spousal support order throughout the existence of the support obligation.”http://leg1.state.va.us/cgi-DANGEROUS URL REMOVED?000+cod+20-88.43C2Texas law ---§ 159.211(b)
of the Texas Family Code -- says . “A tribunal of this state may not modify a spousal support order issued by a tribunal of another state having continuing, exclusive jurisdiction over that order under the law of that state.”http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.159.htm#159.211
These laws are part the Uniform Interstate Family Support Act (UIFSA), which has been enacted in all 50 states.
Under the UIFSA law, the tribunal (court) of the state issuing a spousal support order retains “continuing, exclusive jurisdiction” over the throughout its entire existence A “responding state” (such as Texas) is not permitted to modify the existing spousal support order of the issuing State (such as Virginia).
In sum, as a matter of law, Texas has no jurisdictional authority to modify the terms and provisions of spousal support (alimony) as established by the Virginia divorce court. Even if both parties mutually agree, a waiver of continuing, exclusive jurisdiction and subsequent modification of spousal support by a tribunal of another State simply is not authorized under the auspices of UIFSA. However, while UIFSA does not expressly provide for shifting the continuing, exclusive jurisdiction over a spousal-support order
by mutual agreement, nothing in the Act expressly bars such an agreement from being made. If such is done, it is then up to the individual States to decide whether to recognize it. Thus, you might be able to get the Texas court to exercise modification authority over the Virginia order, IF your ex-wife agrees, and IS the Texas judge allows it to be done. Even then, the Texas court will most likely not be willing to modify the spousal support obligation in any manner that could not be done by the Virginia court if the matter was being heard by a Virginia judge.
NOTE: I realize that this answer may not be entirely to your liking, and I regret being the bearer of information that you really don’t want to hear. But it would be unfair to you and unprofessional of me were I to provide you with anything less than truthful and honest information. I hope you understand.
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