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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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I have been married to my husband for 20 years. He is retired

Customer Question

I have been married to my husband for 20 years. He is retired from the Army now after serving in the Marine Corps for 20 years and then 10+ in the Army reserves. He walked out on me on November 8, 2010. Since leaving he has admitted to 2 affairs, no sex was involved in either, just phone and internet, but he says he doesn't love me anymore. He now lives with his mother and wants a separation. I don't want the separation, I want to work it out. He is paying for our house and household bills but he has a separate bank account that he will not let me have access to. He says he wants to be fair and he will take care of me and our 17 year old daughter but I think he is hiding money, or giving it to someone else. What can I do to check on money that was "ours". He won't give me access to the account. What rights do I have as a military wife of 20 years?
Submitted: 7 years ago.
Category: Military Law
Expert:  Lawrence D. Gorin replied 7 years ago.

ANSWER:
As to your rights as a military wife of 20 years (and assuming the 20 years of marriage coincides with 20 yedrs of military service), you will qualify as what is known as a ”20/20/20 former spouse” and you will be entitled to full commissary, exchange and health care benefits. These benefits include TRICARE and inpatient and out-patient care at a military treatment facility.

Under New York law, you cannot legally prevent a divorce from occurring if your spouse is insistent to ending the marriage by getting a divorce. Under NY law, husband can obtain a divorce (with need for specific grounds) if he has apart from wife pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment. That is probably why he is seeking a legal sparation. It sets-up the basis for a subsequent divorce.

As for the military aspect of a divorce, here are some websites that will give you far more information than I can provide in this limited space. Be sure to look at each one of them (and hopefully all of the URLs work).....
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

Dividing Military Retired Pay (from DFAS)
http://www.dfas.mil/garnishment/retiredmilitary/speech8.pdf

Higdon on Military Retirement Divorce
http://www.texasfamilylawinfo.com/docs/Higdon-Military_Retirement_Divorce.pdf

The “Silent Partner” series at the ABA website:
http://www.abanet.org/family/military/silent/mpd_scoutingterrain.pdf
http://www.abanet.org/family/military/silent/mpd_servicemember.pdf
http://www.abanet.org/family/military/silent/mpd_spouse.pdf
http://www.abanet.org/family/military/silent/pension_division.pdf
http://www.abanet.org/family/military/silent/mpd_crdp_crsc.pdf
http://www.abanet.org/family/military/militarydivorce_errors.pdf

The Uniformed Services Former Spouses’ Protection Act (USFSPA) is codified in the United States Code (USC) as 10 USC § 1408. Verbatim text of the entire federal statute is online at:
http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00001408----000-.html
http://www.militarydivorceonline.com/section1408.html
http://supportavet.us/usfspa.html
http://law.justia.com/us/codes/title10/10usc1408.html

And still more....
http://www.dfas.mil/militarypay/garnishment/fs-qa.html
http://www.dfas.mil/militarypay/garnishment/fsfact.html
http://www.dfas.mil/garnishment/retiredmilitary.html
http://usmilitary.about.com/cs/generalpay/a/retirementpay_2.htm
http://usmilitary.about.com/?once=true&
http://www.military.com/benefits/legal-matters/usfpa-overview

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Customer: replied 7 years ago.
What if I don't agree to a legal separation? He says he will continue to financially "take care" of me and I will never "want" for anything. I do not want a divorce because I don't want to lose ANY of the military benefits that I feel I am entitled to after "taking care" of him for the past 20 years (all during military service here and in Iraq). Can I just continue on as is without a separation and continue to receive my benefits?
Expert:  Lawrence D. Gorin replied 7 years ago.
YOUR FURTHER QUESTION:
What if I don't agree to a legal separation? I do not want a divorce because I don't want to lose ANY of the military benefits that I feel I am entitled to. Can I just continue on as is without a separation and continue to receive my benefits?

YOUR FURTHER QUESTION:
Yes, you can just continue on as is without a separation and continue to receive my benefits. But you cannot force him to live with and be a good husband. And ultimately, you cannot prevent a divorce from occurring if that is what he ultimately wants.

Time is on your side. Given the facts you are presenting, husband would not be able to obtain a divorce until and unless the spouses have lived apart from one another for a period of at least one year pursuant to the Separation Agreement. But such an agreement requires the consent of both spouses. If you do not consent, there can be no agreement. And you are not required to give consent.

If you do not agree to a Separation Agreement, husband can commence a court proceeding seeing a Judgment of Separation. However, to get a Judgment of Separation (given your fact situation), the spouse would have already have had to have lived apart from one another for at least one year. And on that basis, he could get a Judgment of Separation. Than living apart from one another with a Judgment of Separation for one year, husband could then, on that basis, commence a proceeding for divorce. Under NY law, one of the specified grounds for divorce is “living separate and apart pursuant to a judgment of separation for a period of one or more years.”

Hope this clarifies and answers your additional question.