under default divorce & reserved spousal support

[Joyjag]

What is the name of your state? California
I filed for my divorce and it was granted under default because my husband did not want to pay to file a reasponse. now I am taking him to court for spousal support and the 50% of his military retirement. he sent me an email saying that if I do not drop the case that he will file to have the default set aside and try to take my house and make me pay back rent for 5 years. i owned a 2 bedroom mobile home when we met and all the furniture in it and a car. I sold the mobile home because he wanted to move. I sold my car because he wanted a more expensive car. then we bought a house and he had upgrades done to it which he has a bad spending habit. he overdrafted our checking account every other week. we ended up in bankruptcy over that house. then one day he went out of town and came back with a new truck that he traded my 2 cars that were paid off for this truck. then we bought another house and due to his spending habits he spent money behind my back after I wrote out and mailed the bills out. this kind of spending costs us yet another house being foreclosed on. I went out and found a house that was in a price range i could afford it costs 10000.00. he lost his job and sat on unemployment for almost a year. then he ask me for a divorce and I said ok. so then he moved out of the house and said it was mine and it has only been in my name only. now he wants to try to take half of it and make me pay him back rent. can he do this. he was served with the divorce papers he refused to appear and it has been over a year since it was final.

[Ohiogal]

How do either one of you plan to change what went on in the divorce? How do you plan to get spousal support a year AFTER the divorce was final when that should have been settled then? What does your divorce decree say about the property? He seems to be outside the time period in which he could file an appeal.

[LdiJ]

Originally Posted by Joyjag

What is the name of your state? California
I filed for my divorce and it was granted under default because my husband did not want to pay to file a reasponse. now I am taking him to court for spousal support and the 50% of his military retirement. he sent me an email saying that if I do not drop the case that he will file to have the default set aside and try to take my house and make me pay back rent for 5 years. i owned a 2 bedroom mobile home when we met and all the furniture in it and a car. I sold the mobile home because he wanted to move. I sold my car because he wanted a more expensive car. then we bought a house and he had upgrades done to it which he has a bad spending habit. he overdrafted our checking account every other week. we ended up in bankruptcy over that house. then one day he went out of town and came back with a new truck that he traded my 2 cars that were paid off for this truck. then we bought another house and due to his spending habits he spent money behind my back after I wrote out and mailed the bills out. this kind of spending costs us yet another house being foreclosed on. I went out and found a house that was in a price range i could afford it costs 10000.00. he lost his job and sat on unemployment for almost a year. then he ask me for a divorce and I said ok. so then he moved out of the house and said it was mine and it has only been in my name only. now he wants to try to take half of it and make me pay him back rent. can he do this. he was served with the divorce papers he refused to appear and it has been over a year since it was final.

Ohiogal gave you good advice, but I will add that his threat to make you pay him back rent is completely bogus.

[Joyjag]

Originally Posted by Ohiogal

How do either one of you plan to change what went on in the divorce? How do you plan to get spousal support a year AFTER the divorce was final when that should have been settled then? What does your divorce decree say about the property? He seems to be outside the time period in which he could file an appeal.

I left it open and reserved issues to file for spousal support in the future. the property was not and issue in the divorce because he moved out and the house is only in my name only. and for 50% of the military retirement I am entitled to. the only issues that can be brought up at the hearing is spousal support and division of military retirement. everything was settled in the divorce.

[nextwife]

Was he still military when you married? How many years service preceeded your marriage? Were you working during the marriage?

[Joyjag]

Originally Posted by nextwife

Was he still military when you married? How many years service preceeded your marriage? Were you working during the marriage?

I was married to him for 13years 8months and 12 1/2 of them were while he was in the national guard yes I work 6 years during the marriage I was self employed and he did not like the fact I was succeeding so he told me to quit but then I had surgery and became disabled and unable to work.

[Bali Hai]

Originally Posted by Joyjag

I was married to him for 13years 8months and 12 1/2 of them were while he was in the national guard yes I work 6 years during the marriage I was self employed and he did not like the fact I was succeeding so he told me to quit but then I had surgery and became disabled and unable to work.

Sounds like you've been coached for your upcoming court appearance.

[IrishLady47]

I sincerely doubt that you will receive 50% of his military retirement since your marriage overlapped his service for only 12 1/2 years and it takes a minimum of 20 years to even be eligible for a military retirement in most cases.

A military pension can be divided as marital property; however on that basis you would only be entitled to 1/2 of the pension that is based on the marriage and military service overlap. Based on the information you've provided--if he retires based on 20 years of service, only 62.5% of his retirement was earned during the marriage, your share would be 31.25%, not 50%.

And, since he is National Guard, not active duty--it can be more complicated. It would depend on how many retirement points he earned during the marriage, it can vary from year to year for NG.

Of course, if he is not smart enough to seek legal counsel and respond appropriately to your request in court, you might have a chance. I hope he does because you really shouldn't be awarded 50% on the facts provided.

[LdiJ]

Originally Posted by IrishLady47

I sincerely doubt that you will receive 50% of his military retirement since your marriage overlapped his service for only 12 1/2 years and it takes a minimum of 20 years to even be eligible for a military retirement in most cases.

Incorrect. Its 10 years not 20, at least under the military regs.

A military pension can be divided as marital property; however on that basis you would only be entitled to 1/2 of the pension that is based on the marriage and military service overlap. Based on the information you've provided--if he retires based on 20 years of service, only 62.5% of his retirement was earned during the marriage, your share would be 31.25%, not 50%.

Again, not guaranteed...but maybe.

[IrishLady47]

Originally Posted by LdiJ

Incorrect. Its 10 years not 20, at least under the military regs.

I believe you misunderstood what I was saying--for the SOLDIER to be eligible to receive retirement he must serve a minimum of 20 years, not 10. Please quote me the military regulation that states a soldier can receive a military retirement after 10 years. I think after 30 years of providing military personnel support and the last 8 years specifically in approving military retirement, I know a little bit more about this than you do.

The 10 years you are referring to is a common misconception about the Unformed Service Former Spouse Protection Act (USFSPA). Google it for edification. No federal law GRANTS any spouse the entitlement to ANY portion of a soldier's retirement. The USFSPA does allow that IF a former spouse was married to a military member for at least 10 years during his service AND a state court awards the former spouse a portion of the retirement as a property settlement, the former spouse can receive that payment DIRECTLY from DFAS (Defense Finance and Accounting Service). If there is less than 10 years overlap, a former spouse can still be awarded a portion; however, the military member will have to make an allotment or pay it directly IAW the court order.

Again, not guaranteed...but maybe.

No property settlement is guaranteed until a judge signs off on it. However, in most cases, like ANY OTHER 401k or pension plan, only what accrued during the marriage is subject to division. And division is most commonly 50%, barring what other assets are traded off in the total settlement. In many cases, I know of soldiers who have kept their entire military retirement--trading off equity in a house & other assets.

[nextwife]

Originally Posted by IrishLady47

No property settlement is guaranteed until a judge signs off on it. However, in most cases, like ANY OTHER 401k or pension plan, only what accrued during the marriage is subject to division. And division is most commonly 50%, barring what other assets are traded off in the total settlement. In many cases, I know of soldiers who have kept their entire military retirement--trading off equity in a house & other assets.

And of course, if she wants 50% of his retirement, he should get 50% of hers, also.

[IrishLady47]

Originally Posted by nextwife

And of course, if she wants 50% of his retirement, he should get 50% of hers, also.

Very, very true. But, according to her post, she only worked 6 years "self-employed". So I doubt she has any retirement savings. Which is, of course, why she feels entitled to 50% of his. And, I agree--50% of what ACCRUED during the marriage only.

[Joyjag]

the reason I am entitled to half of the retirement is that I was married to him over 12 years of his military career and the only way he retired was because I supported him fully. I am disabled and now unable to work. even after the divorce I have helped him when he needed help, he became a truck driver and I did not get any sleep because he needed help finding his way from place to place so I would use the computer to lead him to pick up and drop points because he could not figure it out himself. every one that knows me knows that I was a very good wife and I was not the one who wanted the divorce. he did because he has a very obssive addictive personality. when we met I already owned my home and it was paid for. while married to him I lost two houses and several cars because he had to have toys before paying the bills.

[IrishLady47]

Originally Posted by Joyjag

the reason I am entitled to half of the retirement is that I was married to him over 12 years of his military career and the only way he retired was because I supported him fully.

The only way he was retired was to have successfully served at least 20 years in the military (unless it was a medical retirement). So at least 8 years of service was served BEFORE you married him. Which means you are are not entitled to half of the entire retirement, although you certainly can claim half of the retirement that was earned on the military service that occurred during the marriage. I am only referring to a property award, not spousal support.

I am disabled and now unable to work

which will be a important factor in awarding spousal support.

even after the divorce I have helped him when he needed help, he became a truck driver and I did not get any sleep because he needed help finding his way from place to place so I would use the computer to lead him to pick up and drop points because he could not figure it out himself. every one that knows me knows that I was a very good wife and I was not the one who wanted the divorce. he did because he has a very obssive addictive personality. when we met I already owned my home and it was paid for. while married to him I lost two houses and several cars because he had to have toys before paying the bills.

I doubt any of this will be relevant to the judge.

Let me give you a real life example: a retired soldier and his wife divorced after 21 years of marriage. He had retired after 20 years in the Army and they were married for 16 of those 20 years. The judge awarded her 40% of his military pension since 80% of it had been earned during the marriage, the first 4 years of his service which accounted for 20% of his pension was considered his separate property. The judge then considered their income (her 40% of pension + her other income and his 60% of pension + his other income). Based on that he awarded her $100 a month permanent alimony. BTW, each also received responsibility for 50% of the marital debt--even though that consisted of hugh credit cards bills run up by her. He had allowed her to do so during the marriage so it was considered marital debt.

Hopefully your ex took out spousal SBP on his military retirement when he retired. You should make sure your decree specifies that you are awarded former spouse SBP. Otherwise, if he dies, his retirement check stops.

The good news is that since you were married to him over 10 years while he was in the military, you can send your court order into DFAS and receive a payment directly from the government. You will not have to rely on him making a payment.

You really should seek the services of a divorce attorney who is experienced in military divorces. As I said before--since he was National Guard, the computation of service on which the retirement is based is different than active duty. Also, if he is receiving some of his pension from the VA could impact on what is considered divisible property.