YOUR QUESTION:
I retired three years ago after 28 years. I divorced and my first wife received 15% of my retirement. I have remarried since and the second marriage was for 14 years. We are separated in the state of NC and she is requesting alimony and separation costs. Can she receive any money from my retirement pay? VA disability pay?
I heard that a second wife can not take a retired service members retirement pay even if they were married over 10 years. True?
I am reluctant to pay anything since she had an adulterous relationship.
How can I arm my civilian lawyer with enough military law/policy on this subject area to give me a fighting chance?
ANSWER:
To the extent your entitlement to military retired pay was acquired while you were married to Wife # XXXXX it is considered as marital property. Upon divorce, wife #2 will generally be recognized as having a claim to one-half of the portion of the marital asset that was during the marriage. And this would be true whethe the marriage to wife #2 was for less than 10 years for more 10 or more years.
Keep in mind that what is subject to division is DISPOSABLE retired pay, as defined in the law. Federal law prohibits a state court from ordering the division of VA disability pay incident to divorce. (See more about this by reading the websites listed hereinbelow.)
The fact that wife #2 had an adulterous relationship is of no relevance when it comes to the division of marital property upon divorce.
PROPERTY DIVISION UNDER NORTH CAROLINA LAW......
Property that is acquired during marriage by one or both spouses, and owned on the date of separation, may be defined as marital property subject to the equitable distribution law of North Carolina.
Equitable distribution law presumes, further, that an equal (50/50) division of the marital property will be equitable. Most judges in this state favor awarding each party fifty percent of the marital property, unless certain factors make a good case for an unequal distribution. Unequal distributions come in all percentages, from 51.2% / 48.8 % to 95% / 5%, for example. The standard court case, however, results in an even 50/50 split of the property.
REGARDING PENSION DIVISION:
NC Stat § 50-20.1 provides as follows: Pension and retirement benefits.---
(a) The award of vested pension, retirement, or other deferred compensation benefits may be made payable:
(1) As a lump sum by agreement;
(2) Over a period of time in fixed amounts by agreement;
(3) By appropriate domestic relations order as a prorated portion of the benefits made to the designated recipient at the time the party against whom the award is made actually begins to receive the benefits; or
(4) By awarding a larger portion of other assets to the party not receiving the benefits and a smaller share of other assets to the party entitled to receive the benefits.
(b) The award of nonvested pension, retirement, or other deferred compensation benefits may be made payable:
(1) As a lump sum by agreement;
(2) Over a period of time in fixed amounts by agreement; or
(3) By appropriate domestic relations order as a prorated portion of the benefits made to the designated recipient at the time the party against whom the award is made actually begins to receive the benefits.
(c) Notwithstanding the provisions of subsections (a) and (b) of this section, the court shall not require the administrator of the fund or plan involved to make any payments until the party against whom the award is made actually begins to receive the benefits unless the plan permits an earlier distribution.
(d) The award shall be determined using the proportion of time the marriage existed (up to the date of separation of the parties), simultaneously with the employment which earned the vested and nonvested pension, retirement, or deferred compensation benefit, to the total amount of time of employment. The award shall be based on the vested and nonvested accrued benefit, as provided by the plan or fund, calculated as of the date of separation, and shall not include contributions, years of service, or compensation which may accrue after the date of separation. The award shall include gains and losses on the prorated portion of the benefit vested at the date of separation.
(e) No award shall exceed fifty percent (50%) of the benefits the person against whom the award is made is entitled to receive as vested and nonvested pension, retirement, or other deferred compensation benefits, except that an award may exceed fifty percent (50%) if (i) other assets subject to equitable distribution are insufficient; or (ii) there is difficulty in distributing any asset or any interest in a business, corporation, or profession; or (iii) it is economically desirable for one party to retain an asset or interest that is intact and free from any claim or interference by the other party; or (iv) more than one pension or retirement system or deferred compensation plan or fund is involved, but the benefits award may not exceed fifty percent (50%) of the total benefits of all the plans added together; or (v) both parties consent. In no event shall an award exceed fifty percent (50%) if a plan prohibits an award in excess of fifty percent (50%).
(f) In the event the person receiving the award dies, the unpaid balance, if any, of the award shall pass to the beneficiaries of the recipient by will, if any, or by intestate succession, or by beneficiary designation with the plan consistent with the terms of the plan unless the plan prohibits such designation. In the event the person against whom the award is made dies, the award to the recipient shall remain payable to the extent permitted by the pension or retirement system or deferred compensation plan or fund involved.
(g) The court may require distribution of the award by means of a qualified domestic relations order, or as defined in section 414(p) of the Internal Revenue Code of 1986, or by other appropriate order. To facilitate the calculating and payment of distributive awards, the administrator of the system, plan, or fund may be ordered to certify the total contributions, years of service, and pension, retirement, or other deferred compensation benefits payable.
(h) This section and G.S. 50-21 shall apply to all pension, retirement, and other deferred compensation plans and funds, including vested and nonvested military pensions eligible under the federal Uniform Services Former Spouses Protection Act, and including funds administered by the State pursuant to Articles 84 through 88 of Chapter 58 and Chapters 120, 127A, 128, 135, 143, 143B, and 147 of the General Statutes, to the extent of a member's accrued benefit at the date of separation, as determined by the court.
http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_50/GS_50-20.1.html
http://law.justia.com/northcarolina/codes/chapter_50/gs_50-20.1.html
REGARDING ALIMONY:
Alimony is separate and apart for the divsion or marital property. It is not unusual for a spouse to receive 1/2 of the marital assets accquired during the years of marriage PLUS alimony. However, in making the alimony award, marital misconduct is one element (one of many) that the judge may take into consideration.
North Carolina Statutes, § 50-16.3A (Alimony), provides as follows:
(a) Entitlement. In an action brought pursuant to Chapter 50 of the General Statutes, either party may move for alimony. The court shall award alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, that the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors, including those set out in subsection (b) of this section. If the court finds that the dependent spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.1A(3)a., during the marriage and prior to or on the date of separation, the court shall not award alimony. If the court finds that the supporting spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.1A(3)a., during the marriage and prior to or on the date of separation, then the court shall order that alimony be paid to a dependent spouse. If the court finds that the dependent and the supporting spouse each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances. Any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court.
The claim for alimony may be heard on the merits prior to the entry of a judgment for equitable distribution, and if awarded, the issues of amount and of whether a spouse is a dependent or supporting spouse may be reviewed by the court after the conclusion of the equitable distribution claim.
(b) Amount and Duration. The court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony. The duration of the award may be for a specified or for an indefinite term. In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including:
(1) The marital misconduct of either of the spouses. Nothing herein shall prevent a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation;
(2) The relative earnings and earning capacities of the spouses;
(3) The ages and the physical, mental, and emotional conditions of the spouses;
(4) The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
(5) The duration of the marriage;
(6) The contribution by one spouse to the education, training, or increased earning power of the other spouse;
(7) The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
(8) The standard of living of the spouses established during the marriage;
(9) The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
(10) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
(11) The property brought to the marriage by either spouse;
(12) The contribution of a spouse as homemaker;
(13) The relative needs of the spouses;
(14) The federal, State, and local tax ramifications of the alimony award;
(15) Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
(16) The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property.
(c) Findings of Fact. The court shall set forth the reasons for its award or denial of alimony and, if making an award, the reasons for its amount, duration, and manner of payment. Except where there is a motion before the court for summary judgment, judgment on the pleadings, or other motion for which the Rules of Civil Procedure do not require special findings of fact, the court shall make a specific finding of fact on each of the factors in subsection (b) of this section if evidence is offered on that factor.
(d) In the claim for alimony, either spouse may request a jury trial on the issue of marital misconduct as defined in G.S. 50-16.1A. If a jury trial is requested, the jury will decide whether either spouse or both have established marital misconduct.
http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_50/GS_50-16.3A.html
http://law.justia.com/northcarolina/codes/chapter_50/gs_50-16.3a.html
Now... moving on..... How can your arm your civilian lawyer with enough military law/policy on this subject area to give me a fighting chance? Easy. Tell him to check out the following websites (which you should do also). Hopefully, this material will open your eyes so you will see the full picture.
“Silent Partner” Series from North Carolina State Bar: (MUST reading!)
http://www.nclamp.gov/s_milpens.pdf
http://www.nclamp.gov/s_soldiers.pdf
http://www.nclamp.gov/s_mpdspous.pdf
http://www.nclamp.gov/s_pension.pdf
http://www.nclamp.gov/s_wording.pdf
Everyday Errors in Military Divorce Cases --
http://www.abanet.org/family/military/militarydivorce_errors.pdf
How To Find A Military Divorce Attorney --
http://www.abanet.org/family/military/eagle_militarydivorceatty.doc
Higdon on Military Retirement Divorce
http://www.texasfamilylawinfo.com/docs/Higdon-Military_Retirement_Divorce.pdf
Retired and Annuitant Pay: Concurrent Retirement and Disability Pay (CRDP)
http://www.dfas.mil/retiredpay/concurrentretirementanddisabilitypay.html
OK. That should be enough to get you started. Twenty-eight years is a long time. I wish you well and thank you for the years of service.
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