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Ray, Lawyer
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Experience:  30 years in civil, probate, real estate, elder law
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Ray In a divorce from a retired Air Force officer, how is

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Ray In a divorce from a retired Air Force officer , how is the pension divided? Recently I was told I have a vested interest in his Air Force pension and VA offset and that a recent law was only retroactive 10 years and our legal separation is much longer than that so it doesn't apply to me.

Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question and respond.

Here in Arizona thirty years ago, the U.S. Supreme Court held that military pensions could not be divided by court order as marital property without congressional legislation authorizing such a division.

Congress responded in 1982 by passing the Uniformed Services Former Spouses’ Protection Act (USFSPA), which served two essential functions. One, the federal USFSPA allows state courts to define military pensions as marital property for purposes of division in divorce.

Two, payments to former spouses of military members could receive their marital share directly from the Defense Finance and Accounting Service (DFAS). For former spouses married for 10 years or longer during the service period, enforcement would no longer be an issue — the service member would not control the actual payments. Under the USFSPA, only the former spouse (or former spouse’s attorney) may apply for direct pay. The service member cannot apply for the direct pay on behalf of the former spouse.

Before military retirement benefits may be divided, the state court has to establish jurisdiction over the pension. Jurisdiction over the retirement is established consensually when the service member is the petitioner in the divorce, the one who initiates the court action. If the member didn’t file the petition, but consents to jurisdiction by responding to the petition, then jurisdiction is established over the pension. Putting consent aside, however, the nonmilitary spouse who files will have to establish jurisdiction over the pension by filing in the service member’s home state (home state being the one listed on the Leave and Earnings Statement (LES).

If the marriage lasted 10 years or longer while the member was in the service (a 10-year overlap), then the DFAS will pay the former spouse his or her share directly from the retirement fund. If the marriage was less than 10 years in duration, or the marriage coincided with less than 10 years of military service, then the DFAS will not enforce the order to divide the pension. Instead, the former spouse will be paid his or her share directly from the service member. As you might expect, this is where enforcement issues arise.

To avoid the 10-year rule, some former spouses will accept increased spousal maintenance instead of a share of the military pension. The reason being that spousal support does not have the same DFAS 10-year overlap restriction on direct payments.

The DFAS is further restricted. Direct payments to the former spouse are limited to 50% of the retired service member’s disposable retired pay. (If the pension is under a garnishment order for child support, then up to 65% of the retiree’s disposable retired pay may be paid directly to the former spouse.)

If the marriage was 20 years or longer in duration, and 20 years of marriage overlapped 20 years of military service, then the former spouse is also eligible for additional benefits: medical, commissary, and exchange privileges. These additional benefits terminate when the former spouse remarries, but the benefits are revived if the subsequent marriage is terminated, too.

So as you can see it is complicated because both state and federal law is involved, a lawyer for you is a good idea.

Also here if spousal support comes into play getting this done by Dec. 31th of this year is a good idea because it is still deductible as tax laws will change on this issue.

I appreciate the chance to help you today.Thanks

If you can positive rate 5 stars it is much appreciated.

Customer: replied 6 months ago.
What about when the military member is retired medically? He came down with schizophrenia so it's service-connected. He took the VA offset which reduced the pension, my share, $1,100 a month. So I will get $249. When I had an attorney I was told that a law I believe was retroactive to 2010 or back 10 years, and we've been legally separated since 1994. So my attorney at the time told me I would still get my full "vested" ,$1346 in a divorce which is May 15th. Is this true?If you recall I believe I mentioned that I am severely disabled from getting juvenile rheumatoid arthritis at age 6, I am now 60. I've had 5 hip replacements, and other joint replacements and lost almost all Vision in one eye due to it. I am not able to walk at all anymore. When we married, he was very aware of my situation and I was on Social Security adult Child Benefits. So I'm not able to pull myself up by the bootstraps and move on with my life that easily especially with no real income.

The judge has final say.Also spousal support comes into play, if you are making less with the pension reduced they can award you spousal support.

If you can swing a another lawyer here I think it would be worth it this is very complicated by the disability and spousal support..

Contact Information:

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Pima County Bar Association Lawyer Referral Service
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Prayers to you here.Thanks and thanks for rating 5 stars.

Customer: replied 6 months ago.
Our kids are all adults and community property was resolved in 94. My attorney got up to $46,000. He wanted me to use my handicap accessible house to pay him. My husband still has an attorney they're asking I pay him and it's over $100,000. Being disabled I am not capable of paying these bills
Customer: replied 6 months ago.
We have hired two specialist in military divorce they were attorneys wanted here in Arizona which McCarthy, and one in North Carolina Mark Sullivan. Both times my husband failed 2 continue with those services. Because mr. Sullivan was hired to help both of us he could not help me after they withdrew. Mr. McCarthy was supposed to be hired my husband who failed to follow through and this McCarthy is passed on. I must be a reason my husband refuse to allow other input after we agree to hire them I cannot afford another attorney and doubt they would take the it's it anyway from court is in a week and a half

So here you may have to set the matter for hearing and have court divide it all and set spousal support.It's the best you can do here

Customer: replied 6 months ago.
back to my original question when my previous attorney told me I had a vested interest in the pension? , and that something went back to 2010 or maybe he said 10 years, and so I wasnt to worry about it...

You have a vested property interest in the pension, you may also get spousal support.The judge has to decide here for both.As it is now he is not paying you anything, the longer he stalls the more you loose here.Just being honest.You will have to push this yourself and set it for hearing.

If you are awarded pension here you will need a QDRO, qualified domestic relations order so they specifically know how much to pay you here.

Prayers to you with all.

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Customer: replied 6 months ago.
I'd like someone to sit with me at the table during the trial someone that will help me where's my documents and locating them as needed or baking notes for me

You can have a friend here or relative sit with you and take notes.They cannot speak on your behalf but can silently assist you here.

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