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Hi I retired in 2000 with 20 years in the AF. I was married

in 1991 and date of...
Hi I retired in 2000 with 20 years in the AF. I was married in 1991 and date of separation is 2003. How much of my military retirement should the court award
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Answered in 3 hours by:
2/3/2010
Lawrence D. Gorin
Category: Military Law
Satisfied Customers: 1,544
Experience: Military & Family Law. 30+ years experience. USFSPA pension division expertise.
Verified
YOUR QUESTION:
I retired in 2000 with 20 years in the AF. I was married in 1991 and date of separation is 2003. How much of my military retirement should the court award?

ANSWER:
Arguably, at least in the opinion of many veterans, the court should award her nothing from your military retirement. However, federal law, Uniformed Services Former Spouses' Protection Act (USFSPA), 10 USC § 1408, authorizes the state divorce courts to treat military disposable retired pay as “marital property,” with the state divorce court being allowed to award a portion thereof to the servicemember’s spouse. Ohio has chosen to do so (as have all of the other states as well).

The usual approach taken by the Ohio courts in most cases is to “award” the spouse one-half (50%) of the “marital portion” of the retiree’s (or future retiree’s) disposable retired pay, to be paid to the spouse (with inclusion of COLAs) as, when and if such disposable retired pay is actually received. The “marital portion” is that portion of your entitlement to military disposable retired pay that was acquired DURING the years of marriage that coincided with your military service.

Typically, the determination of the “marital portion” of your entitlement to disposable retired pay will be made pursuant to a formula set forth in the divorce judgment (and stated in percentage terms rather than a specific dollar amount), to be applied as and when you retire and commence actual receipt of disposable retired pay. This is referred to as a “formula award,” illustrated as follows:

  • Military service for 20 years, ending in 2000.
  • Married from 1991 to 2003 - 12 years, 9 of which coincided with military service.
  • The “marital portion” of the disposable retired pay entitlement is 9/20, or 45%.
  • One-half of 9/20 equals 22.5% .
  • In sum, wife is “entitled” to receive (and husband may be held liable for payment of) 22.5% of husband’s monthly disposable retired pay (including future COLA adjustments).

This is in accord with Ohio Court of Appeal decision in the case of Cherry v. Figart,
86 Ohio App.3d 123, 620 NE2d 174 (1993). The parties separation agreement at time of divorce (while husband still on active duty) provided for wife to receive from husband;s military retirement pay "the share to which she was legally entitled" when he retired. Husband retired after 22 years of service. Fifteen of those years had been during the marriage. Thus, she was entitled to her half of 15/22 of the retirement payments.
http://scholar.google.com/scholar_case?case=9502783558778233029

NOTE: Because the marriage was of less than 10 years’ duration, wife does not meet the “10-10 rule” and will therefore not be eligible to receive her court-awarded portion of your disposable retired pay by direct payment from DFAS. Rather, DFAS will pay the entire amount of your disposable retired pay to the retiree (you), and the former spouse must then look to the retiree (and not to DFAS) for payment of her court-awarded share. And you will have a legal obligation to see to it that she receives the money to which she is entitled, as awarded to her by the temrs of the divorce judgment. In other words, you cannot just pocket the money for yourself. Were you to do so, it could result in your being held in contempt of court and/or being sued by your ex-wife for recover of her economic loss resulting from your keeping for yourself the money to which she is lawfully entitled to receive. You would be well-advised to avoid this from happening.

FURTHER NOTE: FOR FEDERAL INCOME TAX PURPOSES, the portion of your military disposable retired pay that you fork over to your ex-wife will be deemed and treated by the IRS as “ALIMONY,” and thus TAX DEDUCTIBLE (even though NOT deemed or treated as “alimony” or “spousal support” under Ohio divorce law. So you may claim the payments you make to your ex-wife as “ALIMONY PAID” on your income tax return and she will end-up (if she is properly advised) to report the payments she receives from you as “ALIMONY RECEIVED” on her income tax return.

This is pursuant to a US Tax Court decision in 2007 that closely examined this question and concluded that such payments satisfied the Internal Revenue Tax Code’s requirements for “alimony” per 26 USC § 71 and, as such, were deemed as legally deductible for the retiree. According to the US Tax Court, whether the payments from the retiree to the former spouse qualify as tax deductible alimony for federal income tax purposes is controlled by the applicable federal tax law, irrespective of any “label” given to the payments by the divorce decree (unless there is a “clear, explicit and express direction” in the divorce decree stating that the payment is not to be treated as alimony). The Tax Court case is PROCTOR v. COMMISSIONER, 129 TC No. 12 (10/10/2007).

http://scholar.google.com/scholar_case?case=15115976290182917722
http://www.ustaxcourt.gov/InOpHistoric/pro5ctor.TC.WPD.pdf

Lastly, be aware that ex-wife’s entitlement to receive the court-awarded share of your disposable retired pay ends automatically, by operation of law, upon your death. There is no military retirement retired pay after your death, and thus nothing to pay to your surviving former spouse. HOWEVER, the divorce court has the authority (but is not required) to order you to designate your former spouse as a beneficiary for Survivor Benefit Plan (SBP) insurance purposes. This is a negotiable matter. More information on this will be found in the on-line materials at the websites listed below.

Uniformed Services Former Spouses’ Protection Act (USFSPA) 10 USC § 1408:
http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00001408----000-.html

MORE RESOURCES FOR YOUR INFORMATION......
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.dfas.mil/garnishment/retiredmilitary/speech8.pdf


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Customer reply replied 7 years ago
Thanks Lawrence, I tried to tell my lawyer that & he said the County Magistrate already made her ruling on this in 2006. He was not my attny at the time, but I told him that the issue of military retired pay was never brought to the court only my financial assets at the date of marriage and separation. They made their ruling without a hearing.
MORE INFORMATION NEEDED.
From the form of your original question, I did not realize that you were ALREADY divorced.

So what does your divorce decree say about military pension?

And how has she been receiving the money?

Also, if your wife is the one who filed the divorce proceeding and you did file an "appearance" in the case, the matter would have handled as a "default" case, without need for a court hearing (because nothing was being formally contested or challenged).

And if the default divorce decree dealt with the issue of the military pension and awarded her a portion thereof, treating it as a marital property asset, there is most likely no basis for now modifying the terms set forth in the divorce judgment (since property division matters ruled on by the terms of a divorce judgment are generally not subject to subsequent modification).
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Customer reply replied 7 years ago

The Appelate Notice of Appeal states: "The Defendant objects to the Magistrate finding the numerator to divide his military retirement is 145 months over 240 months. The math is incorrect. Note: My appeal stated " That the numerator is number of years married overlapping military service". The appeals court overruled saying the Magistrate calculation of the covecture fraction is correct and is modified to include this formula, using number of years married as numerator and number of years in service in denominator. Parties married Feb 1991 & separated in Mar 2003. Defendant service was from Feb 1980 to Feb 2000. Ohio law recognizes this formula as the standard used to determine a covecture fraction as set forth in Hoyt vs Hoyt. "

YOUR FURTHER INFORMATION:
The Appelate Notice of Appeal states: "The Defendant objects to the Magistrate finding the numerator to divide his military retirement is 145 months over 240 months. The math is incorrect.

Note: My appeal stated " That the numerator is number of years married overlapping military service". The appeals court overruled saying the Magistrate calculation of the covecture fraction is correct and is modified to include this formula, using number of years married as numerator and number of years in service in denominator.

Parties married Feb 1991 & separated in Mar 2003. Defendant service was from Feb 1980 to Feb 2000. Ohio law recognizes this formula as the standard used to determine a covecture fraction as set forth in Hoyt vs Hoyt. "

MY FURTHER ANSWER:
First, we are dealing with a COVERTURE fraction,. NOT a “convecture” fraction.

Second we are dealing with “DISPOSABLE RETIRED PAY.” It is important to use the correct terminology in all your court papers and documents. (But sure to tell this to your lawyer.) Do NOT use such terms as “military pension” or “military retired pay” or any other descriptiion. Use the exact words --- “DISPOSABLE RETIRED PAY” in all of your court papers and documents.

Third, “number of years married as numerator and number of years in service in denominator” is NOT the “standard formula” used to determine a converture fraction as set forth in Hoyt vs. Hoyt. Rather, the numerator should be number of years (or months) or marriage that overlapped with military service.

As set forth in Hoyt v. Hoyt,XXXXX3d 177, 183, 559 N.E.2d 1292 (1990), the formula is “calculated by the ratio of the number of years of employed spouse's employment during the marriage to the total number of years of his or her employment.” In other words, the period of the marriage that OVERLAPS (or coincides) with the period of employment. (Your period of employment was for 240 months, ending in Feb 2000 when you ceased employment with the military.)

In your case, the “number of years of employed spouse's employment during the marriage” is 108, being Feb 1991 to Feb 2000. So 108 is the propert numerator figure (NOT 145). And the denominator figure would be 240 (total number of months during which you were acquiring the entitlement to receive disposable retired pay.

In sum, again, you were acquiring your entitlement to military disposable retired pay over a period of 240 months (20 years). However, only 108 of those months (Feb 1991 to Feb 2000) occurred DURING THE MARRIAGE. You stopped acquiring the disposable retired pay entitlement in Feb 2000, when you retired form military service.

It is entirely IMPROPER to use 145 months (the entire length of the marriage) as the coverture fraction numerator.

As previously explained, the usual approach taken by the Ohio courts in most cases is to “award” the spouse one-half (50%) of the “marital portion” of the retiree’s (or future retiree’s) disposable retired pay, to be paid to the spouse (with inclusion of COLAs) as, when and if such disposable retired pay is actually received. The “marital portion” is that portion of your entitlement to military disposable retired pay that was acquired DURING the years of marriage that coincided with your military service.

I do not understand what this is so difficult for judges (and also for many lawyers) to understand.

So...... as to wife’s 50% share of the marital portion of your entitlement to disposable retired pay, the calculation would and should be as follows:

108 divided by 240, which equals 45%. And one-half of 45% is 22.5%. So 22.5% is the portion of your disposable retired pay that would normally to “awarded” to wife.

It’s just that simple.

LAWRENCE D. GORIN
Website: DANGEROUS URL REMOVED
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Customer reply replied 7 years ago

Thanks so much Lawrence. I'll show this to my lawyer Monday and we have a hearing on the QDRO for the disposible retired pay in a week. We'll make sure the language you mention is in there. I won't be surprised that if the lawyers don't agree, like we've had in the past, the judge will rule against our position and we'll file another appeal. That's why this case has taken so long. The county court does not follow the law and we appeal it and then lose at the Appellate Court. In the hearing 2 weeks ago, the Magistrate was angry at me for dragging this out so long. My lawyer called it due process but the Magistrate was very angry at us. I salute you.

 

PS I'm working with the ULSG to add some improvements. My ex was arrested for domestic violence on me which led to the divorce. She pushed me down the stairs, then made her young niece and nephew wipe up all the blood & tried to keep me from leaving for help as I lay there bleeding! Sick! She still will get a portion of my disposible retired pay. Title 10 says If I as the military member was arrested for abuse, they lose disposible retired pay from that date on. The law needs to say the same for the nonmilitary spouse. It's an attack from a domestic enemy like terrorism. I've written and met with my Congressmember on this to change the law for the last 4 years but no results yet.

FURTHER ANSWER:
OK. Your lawyer should be conversant with the language in Hoyt v. Hoyt,XXXXX3d 177, 183, 559 N.E.2d 1292 (1990). As explained in that case, the formula is “calculated by the ratio of the number of years of employed spouse's EMPLOYMENT DURING THE MARRIAGE to the total number of years of his or her employment.”

Although Hoyt dealt with the division upon divorce of a husband's interest in the GMC retirement plan (a private sector plan subject to the federal ERISA law), the division of a spouse's entitlement upon divorce to a husband’s military disposable retired pay involves the same approach. The military prefers to use "number of months" (rather than years) for the coverture fraction numerator and denominator.

As explained by the Ohio Supreme Court in the Hoyt case: “In determining the proportionality of the pension or retirement benefits, the non-employed spouse, in most instances, is only entitled to share in the actual marital asset. The value of this asset would be determined by computing the ratio of the number of years of employment of the employed spouse during the marriage to the total years of his or her employment.

Given that you are already retired and presently receiving disposable retired pay, the divorce judgment need only declare the specific PERCENTAGE of your disposable retired pay that is awarded to wife (rather than a specific dollar amount).

Standard methodology in Ohio (as well as all other states) is to determine the percentage by used on a formula, expressed in terms of a marital fraction, where the numerator covers the PERIOD OF TIME DURING THE PARTIES’ MARRIAGE while the member was performing creditable military service, and the denominator covers the member’s total period of creditable military service. The former spouse’s award is usually calculated by multiplying the marital fraction by one-half (i.e., 50%).

In your case: 108 months of creditable military service DURING THE MARRIAGE, divided by 240 months of total creditable military service. 108/240 = 45%. And one-half of 45% is 22.5%. So 22.5% is the portion of your disposable retired pay that would normally to “awarded” to wife.

There is no magic language required to express a percentage award of this nature. All the divorce decree needs to say is the following: “THE FORMER SPOUSE IS HEREBY AWARDED ______ PERCENT OF THE RETIRED MILITARY SERVICEMEMBER’S DISPOSABLE RETIRED PAY, AS DEFINED IN 10 USC § 1408(a)(4)”

http://www4.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00001408----000-.html

Also, be sure to remind your lawyer that, since the marriage during the time of military service was for less than 10 years, your wife does not meet the “10-10 rule” and is therefore not eligible to receive her court-awarded share of your disposable retired pay by way of payment direct from DFAS. So there is no need for a special or separate “Court Order for Division of Disposable Retired Pay” (aka “military QDRO”) as would otherwise be necessary. Instead, it will be your responsibility (and liability) to pay over to your ex-wife each month the share of your disposable retired pay that legally belongs to her per the “award” made by the divorce judgment.

Lastly, as previously advised, to the extent you make the payments to your ex-wife pursuant to the divorce court’s order, you can then claim the money you pay to her as tax deductible “alimony” on your federal income tax return, even though the payments are not considered, deemed or treated as alimony (or spousal support) for Ohio divorce law purposes. This is pursuant to a US Tax Court decision in 2007 that closely examined this question and concluded that such payments satisfied the Internal Revenue Tax Code’s requirements for “alimony” per 26 USC § 71 and, as such, were deemed as legally deductible for the retiree. According to the US Tax Court, whether the payments from the retiree to the former spouse qualify as tax deductible alimony for federal income tax purposes is controlled by the applicable federal tax law, irrespective of any “label” given to the payments by the divorce decree (unless there is a “clear, explicit and express direction” in the divorce decree stating that the payment is not to be treated as alimony). The Tax Court case is PROCTOR v. COMMISSIONER, 129 TC No. 12 (10/10/2007).

http://scholar.google.com/scholar_case?case=15115976290182917722
http://www.ustaxcourt.gov/InOpHistoric/pro5ctor.TC.WPD.pdf

I wish you well in the successful resolution of your legal problems.

================================
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Edited by Lawrence D. Gorin on 2/5/2010 at 7:46 PM EST
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Customer reply replied 7 years ago

Thanks so much for your help Lawrence. On Mon I'll meet with my lawyer and "turn" into "you" with this info. No need to reply, but I'd like to leave you with this request.

 

To improve the law, http://www.ulsg.org/ will need help from each state to pass legislation. They've been getting alot of support from OK ex Congressman JC Watts to improve the law at the state levels and using that to change the US Code vs state law for each state. Mr Gorin I truly feel your passion about how bad the USFSPA is, so please ask them how you can help us improve this law. ULSG needs experienced military law attorneys like you. We're getting impact statements from vets harmed by this bad law like me. As you can see by my example, the states can't seem to follow their own law, so let's put better language in the US Code for states to follow better. The ULSG wants us to coordinate our efforts to maximize our affect to Congress, like a well designed military plan of attack. The people that are the most angry that my ex was convicted of DV and per the law is getting a % of disp mil ret pay $ from me are the supportive females spouses I still know at Wright-Patterson AFB, OH, where my ex still works. I asked them to write their Congressperson too. Peace, Danny Cooper

PS If I was not accepted at U of North Dakota, I was going to go to Oregon State for Aeronautical Engineering.

Glad to have been of help. And thank you for your kind words. Much appreciated. Also much appreciated would be for you to now please click on the ACCEPT button (if not already done) so that I will be compensated for the answer and information provided in response to your inquiry. And I thank you in advance for doing so.

Lawrence D. Gorin
Attorney at Law
Portland, Oregon

PS: Oregon State U. is a great school. My daughter is an OSU grad, now working in the commercial aviation industry.

Lawrence D. Gorin
Category: Military Law
Satisfied Customers: 1,544
Experience: Military & Family Law. 30+ years experience. USFSPA pension division expertise.
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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