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RobertJDFL, Attorney
Category: Military Law
Satisfied Customers: 13515
Experience:  Experienced in multiple areas of the law.
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I'm married to a CW4 retired 2012 after 42 years.

Customer Question

I'm married to a CW4 retired 2012 after 42 years. We've been together 20 years and he said if I divorce him I won't get anything because I'm an alcoholic and drug addict. Not everyday. Do I have any rights and will I get some of his retirement?
Submitted: 1 year ago.
Category: Military Law
Expert:  RobertJDFL replied 1 year ago.

hank you for using Just Answer. I look forward to assisting you.

Your spouse is misinforming you.

Alabama is an equitable distribution state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. There is no fixed standard to divide property, each case will be decided on its facts, and the trial court’s discretion will not be disturbed on appeal without a showing of clear abuse.

In distributing property after a longer term marriage, the judge’s tendency will typically be to begin with something like a 50/50 division of the marital estate.

When it comes to retirement plans, Alabama law says that where the parties cannot agree:

  • The spouse owning the benefits must have a vested interest in them or be receiving them on the date the divorce action is filed.
  • The parties must have been married for 10 years, during which the retirement benefit was being accumulated.
  • Any retirement benefits accumulated before the marriage, including any earnings produced by such benefits, must be excluded.
  • The total benefit extended to the non-covered spouse may not exceed half the benefit to be considered.
  • The payout to the non-covered spouse may not begin until the covered spouse begins receiving benefits or reaches age 65, whichever occurs first.

To award alimony a court must find that one spouse has financial need and the other has the ability to pay. A court will determine whether there is both need and ability to pay by looking at all of the relevant circumstances in a particular case. One of the biggest factors an Alabama court will consider is the length of a marriage.

In evaluating a spouse's need, a court will first consider the extent to which separate assets, or any marital assets the spouse receives in an equitable property division, may provide a sufficient means of support without an alimony award. (This means that alimony is always determined after the property division is complete.)

In determining the ability of a higher earning spouse to pay alimony, the court will generally not consider as part of the paying spouse's assets any property the spouse owned before marriage, or acquired by gift or inheritance, unless the property was used by the couple as a source of income during marriage. A court may consider vested retirement benefits accumulated during the marriage as an available source of alimony if the couple has been married for at least 10 years.

Other factors a court might take into account in deciding whether to award alimony include:

  • each spouse’s age and health
  • the standard of living during the marriage
  • the lower earner’s contribution to the increased earning power of the higher earner
  • a spouse’s past services as a parent or homemaker
  • both spouse’s future opportunities to gain income and assets
  • the needs of any dependent children of the couple, and
  • any conduct by either spouse that contributed to the breakup of the marriage.

There is no specific formula governing the calculation of alimony in Alabama, and a court has great discretion in deciding what amount to award, or whether to award any amount at all.

Did you need clarification or additional information about my answer? If so, please reply, I'm happy to assist further. Otherwise, please remember to leave a positive rating for me by clicking on the stars, as experts are not employees of this site and we are only paid if you leave a positive rating. Thank you.

Expert:  RobertJDFL replied 1 year ago.

Just following up with you to see if you needed additional information or assistance?

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