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My spouse was married for 20 years to his ex-spouse. She does

My spouse was married for...

My spouse was married for 20 years to his ex-spouse. She does qualify for the 20-20-20 benefit. She knew of his pension but made no claim to it or alimony at the time of the divorce. Now, 6 years later, she wants to reopen the divorce. The divorce was final in North Carolina, he recently retired in and lives in New Jersey. Our intended domicile is PA in a matter of months, however, his legal state of residence is Florida, where she also lives with her boyfriend. She is attempting to reopen the case in NJ. Who has jurisdiction here? Will a court likely reopen the case? NC law does state that once the divorce is final, that is it. But would that apply in NJ, Pa, or FL?!!

Also, my spouse has had custody of their three kids to which his ex has not paid a dime for since the divorce. Help!

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9/12/2013
jaccorps_esq
jaccorps_esq, Arbitrator
Category: Family Law
Satisfied Customers: 19,431
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Hello, my name is XXXXX XXXXX I look forward to assisting you today. I bring nearly 20 years of experience in various legal disciplines, including JAG.

If he lives in New Jersey, that state has jurisdiction over him. If she attempts to reopen it there, that court could consider the issue because it does have jurisdiction over him and that is technically where the retirement is.

That being said, it is exceedingly unlikely that she can get this reopened and changed. She'd have to show, essentially fraud to convince the court that her legal rights weren't properly addressed the first time. Furthermore, he'll be able to raise the issue that she never paid child support the entire time, so any adjustments should be against her and not in her favor.
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Customer reply replied 4 years ago

Thank you for the prompt response!


The divorce decree did not address any items such as child support, alimony or the pension. Would that be grounds enough other than fraud to have the case reopened.

No, that is not a basis to reopen by itself. Again, she has to demonstrate that something stopped her from being able to address these issues before, such as fraud on the part of your husband or his attorney.

If the decree didn't address those issues, it didn't address them. Nothing legally requires that the issue of the pension be addressed, so if it isn't the law supposes that she wasn't supposed to get any of it.

The law requires, for her to have a right to it, that the divorce decree expressly grant her the right to it, so nothing about the divorce decree being silent implies that it was just forgot about. She had the responsibility through her attorney to have each issue addressed then, if she felt that she had a right.

 

I'm going to bed now, but I will be back first thing in the morning. Anything additional questions you post, I'll address as soon as I'm up. Good night.

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Customer reply replied 4 years ago

How does the Former Spouse Protection Act come into play here? I know that she can file a motion to have it reopened by stating that she made a mistake by omitting it or was under duress. She was married to him for 20 years so she knew everything about the pension. I realize that you said she should have addressed it then. Does the USFSPA give her more leverage for reopening?

 

 

 

Thank you again, goodnight.

That act doesn't make a former spouse automatically entitled to a portion of the retirement. It doesn't have any statement which allows one to reopen a closed divorce.

All that act does is make her a recipient of the 20/20/20 benefits that she already had automatically.

The only other thing that law does give the state court the right, not the obligation, to grant her a portion of the military retirement. Before that law passed, state courts couldn't divide military retirement. But again, it does not create any right to a division of that asset. It simply brings military retirement in line with civilian forms of retirement (which always could be divided).

So, nothing about that law gives her any special leverage. She still has to establish why she failed to address this issue in the first place.

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