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Military retirement after divorce and how is it affected ?by 100% disability rating

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rusty275

Junior Member
What is the name of your state (only U.S. law)? South Dakota. I have a question regarding military retirement. My divorce was finalized in Aug. 2005 and I was awarded 47% of my ex-husbands military retirement which is paid monthly by Department of Defense Accounting and Finance. My ex called a few weeks ago and stated that he had applied for 100% disability, at the time of our divorce he was rated at 30%. He has recently had knee replacement surgery and has now applied for the additional disability. He did state that if my retirement disappears that he would pay me directly the amount I receive from the military every month. I asked if he would put it in writing and he refused. If I wanted it in writing his offer would disappear. A week or so later he called again and stated that he was advised by the VA my retirement would not be affected. Then yesterday he stated that he was misinformed and as of Feb.1st 2010 my retirement stops and to take him to court. All the information I have been able to locate such as the Uniformed Services Former Spouses' Protection Act and the Soldiers and Sailors Civil Relief Act both refer to the military member who has served a full 20 years, my ex only served 18 1/2 years and we were married 29 years with 17 1/2 while he was active duty. I contacted Defense Accounting and Finance and they advised that my retirement would not stop if he served a full 20 years but he did not. I cannot find out the correct information and this issue is of great urgency. I am a full-time student and own my home, which I make payments on. I work in a bar part-time and if my portion of the military retirement disappears then I cannot make my house payment. The retirement is half of my monthly income. My oldest daughter who is physically disabled and my granddaughter live with me and will also be put in jeopardy and I cannot let that happen. I know this is a lot but could you please try to find out the correct information regarding this issue? I need to know what I am going to be facing and if there is anything I can do to stop this from happening. Any information will be greatly appreciated. :confused::eek:
 
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rusty275

Junior Member
need help to keep my home

:eek:This issue is of great urgency!! If my portion of military retirement is stopped then I would be forced into the position of losing my home. I would be losing half of my monthly income and would no longer be able to make my house payment. Any info and advice would be greatly appreciated. Really scared and trying not to go nuts!!:eek:
 
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rusty275

Junior Member
I spoke with my attorney and she said to accept his offer and not ask for it in writing regarding ex paying my monthly retirement directly. That was before his remarks yesterday of taking him to court. :(
 

nextwife

Senior Member
How old are you? Are you working?

Have you considered a roommate if something unforeseen happened? Does this benefit continue if he is deceased, for example? If not, do you have a plan for when/if the payments cease?
 

LdiJ

Senior Member
:eek:This issue is of great urgency!! If my portion of military retirement is stopped then I would be forced into the position of losing my home. I would be losing half of my monthly income and would no longer be able to make my house payment. Any info and advice would be greatly appreciated. Really scared and trying not to go nuts!!:eek:
You may have to work full time and go to school part time. That may be your only viable option.

However, you might want to speak to JAG. They might be able to help clarify things for you. Otherwise, taking him to court may be your only option.
 

Ronin

Member
If your attorney is not being very helpful, you should consider finding an attorney with more experience working with military divorces and related pension and benefit issues. If you are not too far from a base it should not be difficult to find one with this experience. He or she can then review your decree and let you know where you stand.

If your ex is only willing to informally commit to continue paying you, it is very likely that at some point not too far down the road the payments will cease.
 
Since your ex did not serve 20 years, I can only assume he received a medical disability retirement which is based both on medical conditions and years of service. He then applied for VA disability benefits and received a 30% rating.

Since VA benefits are totally non-taxable, he waived an equal amount of retirement benefits to receive those. Under concurrent receipt laws passed since 2003, a veteran rated at 50% or above would be eligible to receive both retired pay and VA disabilty. Then your portion of his military retired pay would not be affected. To date, this does not apply to soldiers receiving retired pay solely based on disabilty like your ex who did not serve 20 years, the minimum service required for regular military retirement. So now your ex will waive his entire retired pay to receive the higher (and non-taxable) VA benefit.

Some court orders are worded so that this possibility is accounted for. As already advised, you MUST find an attorney familiar with military benefits and have your current order reviewed. It may or may not be possible to have it modified.

And, honestly, even if he had put it in "writing" that he would still pay you the same amount, he could have stopped at anytime. So, you still would need to go to court to enforce an contract.
 
If his knee replacement surgery was successful, I would think he will only receive a temporary higher rating until he completes all physical therapy and rehabilitation.

My father has had two knee replacements and still has only a 50% VA rating (which is also based on several other conditions from his mlitary service). And, he is 81. So I cannot imagine why your ex thinks he will go from 30% to 100% unless something went wrong.
 

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