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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 19175
Experience:  Lawyer and current JAG officer.
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Divorce decree (1999) stated my wife receives ALL of my military

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Divorce decree (1999) stated my wife receives ALL of my military retirement and waived any, and subsequent increases to my disability. At the time I was at 20% and now I am at 90% (1 new hip & 1 new knee). However, during both surgeries I was at 100% for 1 year. My ex-wife wanted me to give her my entire disability but I refused however I did tell her I would give her $1,200 per month for as long as I lived. Since I have been at 90%, she receives 10% of my retirement pay and I have made up the difference to equal $1200 dollars. This has gone on since 2003. Now she wants me to file for concurrent receipt and I do not want to. Can I be forced into filing for concurrent receipt?

Thank you for your question today, I look forward to assisting you. I have nearly 20 years of legal experience in various disciplines, including JAG.


You don't file for concurrent receipt. You are either eligible for it or you are not, and those that are eligible for it are automatically phased into the program.


Those that are not eligible for it don't get it.


So, I'm not sure what she is even talking about when she says that she wants you to file for it. She can't make you file for it because that isn't even a legal possibility.

Customer: replied 4 years ago.

I can choose to apply for concurrent receipt. It can be automatic but I chose not to do that. With 20+ years of service and at 90% I am eligible. I just want to know if she can force the issue?

That really doesn't follow with anything I know about the program. They should have automatically started giving you the money. I'm assuming you had to do something to actually stop that from happening.


Very interesting.


We've seen this in situations where military members refuse to file for retirement so their spouses don't get anything.


Now, the end result though is that she can drag you into court and force you to explain to a judge why you are refusing to do so. That court can then change the previous decree to increase the burden on you. The court can even hold you in contempt for refusing an order, if the court issues it, stating that you must sign up for this program.


The court can force people in a divorce to take affirmative actions that would result in more income for you so that that income can pass to your former spouse.


If you are legally entitled to be receiving the pay and are refusing that pay which would go to your former spouse, the court can take steps to at least try and force you to sign up. They can't actually make you sign up, but the court can legally put you in jail for contempt if you refuse.


Customer: replied 4 years ago.

I appreciate your response. I was just thinking that since she has been receiving and taking the $1200 each month since 2003 I would be in better standing with the court (precedence). Had she settle for the 50% she was entitled too I wouldn't have an issued but she will receive 100% of my retirement. Guess I am not in a good situation.

No, the fact that she's been taking more from you doesn't really give you any legal power in this situation.


You essentially agreed to something that you legally didn't have to back then and all you really did was end up paying her more than you needed to for a while. She couldn't get your disability and still can't get that, because courts can't garnish that. She can only get your retirement.


Now, DFAS will only send her 50% of your retirement, no matter what the court says, but if you agreed to give her 100% of it, you'll have to do that or the court can hold you in contempt.


I wish I could tell you differently here, but no you are not in a strong legal position.



Customer: replied 4 years ago.

Thank you for your time. Appreciate the response. Have a wonderful evening. By the way, my stupidity to give her all my retirement!

If she takes you back in front of a court, that is certainly something that you should try to revisit.


You agreed to give her all of your retirement when you were only getting 10% of it and you personally paid her more.


While you can be forced to file for the concurrent pay, I think that you have a reasonable argument here that the original requirement to pay her 100% of you retirement was just because you were going to be getting so little of it while the rest was going to disability.



Customer: replied 4 years ago.

Good point. Do you think I should see an attorney? Do I have to go back to the state the divorce was filed (West Virginia)? I now live in South Carolina. Like I said, had she taken what she was entitled to I wouldn't have any issues.

You'll have to work through the original divorce court that issued the first decree.


Yes, if you're going to challenge the original decree language, you'll need an attorney to do that for you, which can be done without you needing to be there for the most part.



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