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Ask Lawrence D. Gorin Your Own Question
Lawrence D. Gorin
Lawrence D. Gorin, Lawyer
Category: Military Law
Satisfied Customers: 1544
Experience:  Military & Family Law. 30+ years experience. USFSPA pension division expertise.
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if a retired army man & wife divorce in PA & she was granted

Resolved Question:

if a retired army man & wife divorce in PA & she was granted 1/2 his retirement benefits until she remarried & she DID remarry & that husband died, is she entitled to have the retirement benefits reinstated & if so, how does she go about it? (and what will it cost her, if anything))
Submitted: 7 years ago.
Category: Military Law
Expert:  Lawrence D. Gorin replied 7 years ago.
YOUR QUESTION:
if a retired army man & wife divorce in PA & she was granted 1/2 his retirement benefits until she remarried & she DID remarry & that husband died, is she entitled to have the retirement benefits reinstated & if so, how does she go about it? (and what will it cost her, if anything))

ANSWER:
Simple question but the answer is a bit complex and confusing.

First, let’s look at the divorce judgment and the provisions contained therein. If the divorce judgment awarded wife 1/2 of husband’s military retirement benefits until wife remarried, and wife then DID remarry, wife’s entitlement would come to end. Unless the terms of the divorce judgment expressly provided for restoration of the wife’s entitlement to Husband # XXXXX’s military retirement benefits in the event of the death of Husband # XXXXX there would be no basis for such restoration. (Presumably, had the parties and the court intended for such restoration (reinstatement), the divorce judgment would have contained appropriate language so declaring.)

Second, it is quite possible (and more likely probable) that the question of reinstatement of wife’s court-awarded share of husband’s military retirement benefits in the event of wife’s remarriage and subsequent death (or divorce) from Husband # XXXXX is a matter that was never considered, discussed, or even thought about at the time of the divorce. Arguably, then, the divorce judgment’s omission to address this circumstance was not an intentional omission but rather simply a matter that was never discussed, with no conclusion having been reached, one way or the other. Under this circumstance, the ex-wife would be well-advised to consult with a divorce lawyer in the state in which the divorce judgment was rendered and inquire about the possibility of going back to court to re-open the divorce case for the purpose of resolving this previously unresolved issue. For the judge, the question is: HAD the issue be raised and discussed at the time of the divorce, HOW would it have been resolved?

Third, if wife had been receiving her court-awarded share of husband’s military retirement benefits by direct payment from DFAS, and the court order submitted to DFAS expressly stated that wife’s right to receive the court-awarded share of husband’s military retirement benefits will terminate upon wife’s remarriage, DFAS will comply with the court order (upon being presented with evidence that wife has in fact remarried). If DFAS has terminated the payment to wife due to her remarriage (as directed by the court order), DFAS will NOT reinstate the payments upon the death of Husband # XXXXX (or wife’s divorce from Husband # XXXXX) UNLESS the court order that had been submitted to DFAS to get the whole process started contains a provision directing reinstatement.

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