Still Married!!!!

[lookin4answers]

What is the name of your state? Ohio

I have been married for almost 9yrs. We have 2 children. We have never been legally separated though I have moved out a couple times, but we reconciled each time. My husband is active duty AF. At the beginning of the year we were separated (not legally) and he was seeing another active duty AF person. We reconciled in March and in May he told me that he wanted a divorce. Immediately he began to see this person again. I took the kids and left. I called his 1st commander and imformed him of the relationship and he is in Iraq now. Im not sure if there has been a no contact order put out but they were seeing each other all summer while I was away. In July he asked to reconcile and we came home. When we got here he said he still wants a divorce and intends to be with this person. They have "supposedly" been keeping in contact through a mutual friend. She had put in a pkg to be pcs'd because of this whole thing but my husband asked her to stop and wait for him. And she is. He wants to get custody of my children and leave me with nothing. What are my rights in this?What is the name of your state?

[jstlivin]

Originally Posted by lookin4answers

What is the name of your state? Ohio

I have been married for almost 9yrs. We have 2 children. When we got here he said he still wants a divorce and intends to be with this person. They have "supposedly" been keeping in contact through a mutual friend. She had put in a pkg to be pcs'd because of this whole thing but my husband asked her to stop and wait for him. And she is. He wants to get custody of my children and leave me with nothing. What are my rights in this?What is the name of your state?

First off you need to file for divorce as soon as he returns. Second when contacting the command make sure you are receiving your required amont od his pay by the military if not then address that with his command. Then move to the state in which you plan on being because once things are filled you will have to ask the courts permission to relocate and trust me that is not easy to do. One of the most important tasks you have at hand is to document everything coming and going. Record every conversation, print every email. This is going to be your greatest defense in court. You are also intitled to his retirement at the time of him retireing. Make sure you ask for this in your divorce and that you do not waive this right of an asset. Military guide book on line google it it will help. Get the kids in thereapy they are going to need it. Unless you are proved unfit he will not be able to take the kids. It is in my opinion only that men in the military seem to want to tell you only what they want you to think and control you by the same measure. Get in touch with some support groups and keep in touch with his command. Get recent LES or what ever pay stubs are called for him. I'm ex Navy and thats what we call them. We also have access to a mypay web site, find out what yours is. Do as much research as you can and make sure you get an atty that has knowledge of military divorces. I know it's allot right now but stay strong your kids need you My state well like I said military so you name it!lol

[TinkerBelleLuvr]

Record every conversation

this is not necessarily allowable, depending on which state she lands up in. Becareful of you advice.

[jstlivin]

GinnyJ you are so right dear! But if he walks in and denies any involvement with another woman, then she has no proof What and then she can only claim inrec.. diff. The military frounds on adultry. This is a fact. She needs to cover her assets if he is the man she pertrays him to be.. I did not and all I can say now is in retrospect... I have been married to the military, raised in the military, and I don't have one brother out of 6 or uncle thats not in the military of some sort.
BUT never the less document all correspondence with you and the children. Is he even close to getting out? Try to over come your hurt of the other woman at some point and move on for the children. He is the DAD and he needs to be close to the children and them with him and have a stable relationship with them. It's hard to see now but it can work.

[jstlivin]

Ow and I miss wrote you are entitled to a portion of his retirement.. It is considered an asset and will be distributed as such. There are formulas for this calculation that will be used.

[DRTDEVL]

Originally Posted by jstlivin

Ow and I miss wrote you are entitled to a portion of his retirement.. It is considered an asset and will be distributed as such. There are formulas for this calculation that will be used.

Wrong!

There is no formula, and there is no entitlement to this potential money.

It can, however, be levied against in a divorce proceeding, but you better have a darned good reason for needing alimony (like disability). Otherwise, it's just money-grubbing.

[jstlivin]

Originally Posted by DRTDEVL

Wrong!

There is no formula, and there is no entitlement to this potential money.

It can, however, be levied against in a divorce proceeding, but you better have a darned good reason for needing alimony (like disability). Otherwise, it's just money-grubbing.

Look it up! [url]http://www.military-divorce-guide.com/division-military-retirement.htm[/url]

[jstlivin]

Originally Posted by DRTDEVL

Wrong!

There is no formula, and there is no entitlement to this potential money.

It can, however, be levied against in a divorce proceeding, but you better have a darned good reason for needing alimony (like disability). Otherwise, it's just money-grubbing.

LookMILITARY DIVORCE GUIDE

Division of Military Retirement

Introduction to Military Pensions in a Divorce
A servicemember's military pension is often the most valuable asset in a Colorado divorce, legal separation or annulment. Since it is an asset, states can divide military retirements just like any other marital asset, so each spouse should know how Colorado divorce courts handle the division of military pensions, VA Disability, and issues concerning the Survivor Benefit Plan (SBP).



The Myth about Dividing Military Pensions
First, to dispel the myth, all states, including Colorado, have the authority to divide a servicemember's military retirement, regardless of the length of the marriage (overseas courts cannot divide military retirements). In 1982, Congress enacted the Uniformed Services Former Spouses' Protection Act (USFSPA) which permits, but does not require, state courts to divide military retirement upon divorce, legal separation or annulment. 10 U.S. Code §1408.

Nowhere is the Colorado divorce court's authority to divide military retirement limited by the length of marriage. Many people, including some family law attorneys, believe that military retirement is only divisible if the marriage lasted at least 10 years.

What the USFSPA actually states is that the Defense Finance and Accounting Service (DFAS) will pay directly the former spouse's share of the military retirement if there were at least 10 years of marriage overlapping 10 years of creditable military service (the 10/10 rule).

State courts divide military retirement for couples with fewer than 10 years of marriage all the time - it simply means that the servicemember actually has to cut the check to pay the civilian spouse, rather than DFAS making the payments.



it up! [url]http://www.military-divorce-guide.com/division-military-retirement.htm[/url]

[DRTDEVL]

Originally Posted by jstlivin

LookMILITARY DIVORCE GUIDE

Division of Military Retirement

Introduction to Military Pensions in a Divorce
A servicemember's military pension is often the most valuable asset in a Colorado divorce, legal separation or annulment. Since it is an asset, states can divide military retirements just like any other marital asset, so each spouse should know how Colorado divorce courts handle the division of military pensions, VA Disability, and issues concerning the Survivor Benefit Plan (SBP).



The Myth about Dividing Military Pensions
First, to dispel the myth, all states, including Colorado, have the authority to divide a servicemember's military retirement, regardless of the length of the marriage (overseas courts cannot divide military retirements). In 1982, Congress enacted the Uniformed Services Former Spouses' Protection Act (USFSPA) which permits, but does not require, state courts to divide military retirement upon divorce, legal separation or annulment. 10 U.S. Code §1408.

Nowhere is the Colorado divorce court's authority to divide military retirement limited by the length of marriage. Many people, including some family law attorneys, believe that military retirement is only divisible if the marriage lasted at least 10 years.

What the USFSPA actually states is that the Defense Finance and Accounting Service (DFAS) will pay directly the former spouse's share of the military retirement if there were at least 10 years of marriage overlapping 10 years of creditable military service (the 10/10 rule).

State courts divide military retirement for couples with fewer than 10 years of marriage all the time - it simply means that the servicemember actually has to cut the check to pay the civilian spouse, rather than DFAS making the payments.



it up! [url]http://www.military-divorce-guide.com/division-military-retirement.htm[/url]

As I said... There is no formula, and there is no entitlement, period.

It's all a myth.

[SOLDIERFIRST]

Originally Posted by DRTDEVL

Wrong!

There is no formula, and there is no entitlement to this potential money.

It can, however, be levied against in a divorce proceeding, but you better have a darned good reason for needing alimony (like disability). Otherwise, it's just money-grubbing.

Not sure what you are stating is not an entitlement, but active duty military pay is by federal law and the IRS defined as community property. The military will follow whatever a divorce decree states and some states use a .025*number of years married. Military will make payment to the ex spouse directly (if they were married for 10 or more years), otherwise the military spouse has to write a check every month for the ex share of retirement pay.

If it was me, (military spouse) and I had to pay, I would agree to alimony and not pension. Can you tell me why?

Sorry, forgot to mention. I got the info from "soldier and spouses act" and legal dept at Ft. Bliss. Actually sat down and spoke with a lawyer.

[DRTDEVL]

Originally Posted by SOLDIERFIRST

Not sure what you are stating is not an entitlement, but active duty military pay is by federal law and the IRS defined as community property. The military will follow whatever a divorce decree states and some states use a .025*number of years married. Military will make payment to the ex spouse directly (if they were married for 10 or more years), otherwise the military spouse has to write a check every month for the ex share of retirement pay.

If it was me, (military spouse) and I had to pay, I would agree to alimony and not pension. Can you tell me why?

Sorry, forgot to mention. I got the info from "soldier and spouses act" and legal dept at Ft. Bliss. Actually sat down and spoke with a lawyer.

Cite caselaw, please...

No federal ruling has ever deemed retired pay as community property. Cases have held that it can be divided as an asset in a divorce, but there is no requirement to do so.

A little clearer explanation of the entire structure:

In the late 1970s and early 1980s, various state courts began to treat military retired pay as "community property," often awarding a portion of the pay to the former spouse. One such case from California finally wound its way through the federal courts to the Supreme Court, who ruled in McCARTY v. McCARTY, 453 U.S. 210 (1981), that federal law did not allow retired pay to be treated as joint property.

In its decision, the court was very clear that division of military retired pay was not necessarily unconstitutional, but that current federal laws (at the time) prohibited treating military retired pay as joint property.

In response, Congress passed the Uniformed Services Former Spouse Protection Act (USFSPA), in 1982. This act allows state courts to treat disposable retired pay either as property solely of the member, or as property of the member and his spouse in accordance with the laws of the state court.

Contrary to popular belief, there is no "magic formula" contained in the act to determine the appropriate division of retired pay. A state court can divide retired pay in any way it chooses (subject to the laws of that state). For example, it would be perfectly legal for a court to divide military retired pay 50/50 for a marriage that only lasted two months (again, subject to the laws of that state). A state could also decide to award a majority of the retired pay to the former spouse, if the state laws allowed such a division. Conversely, a court may also choose to treat retired pay as the exclusive property of the military member.

See? There is no formula set by the Federal Government. Now, an individual state *may* set a formula. I know Colorado has one:

In 1988, the Colorado Supreme Court ruled that military retirements, like other pension plans, are "property" and therefore subject to division upon divorce. Marriage of Gallo, 752 P.2d 47 (Colo. 1988).

Seven years later, the Court refined the formula for the division of military retirement. Marriage of Hunt, 909 P.2d 525 (Colo. 1995). The former spouse is entitled to one-half of the marital portion of the servicemember's disposable disposable retired pay, calculated as one-half of:

Months of marriage overlapping service
-----------------------------------------------------
Total months of military service at retirement

Example: If a couple was married for exactly 12 years (144 months) overlapping creditable military service and the servicemember retired at 20 years (240 months), the marital portion would be 144 / 240, or 60% of the servicemember's disposable retired pay. The former spouse would therefore receive half of that, or 30%, and the servicemember receives the remaining 70% (consisting of the servicemember's 40% separate property share, plus his/her 30% marital share).

In all my searchings, I can not find an absolute formula for Ohio.

[redleg17]

[url]http://www.dfas.mil/militarypay/garnishment/Speech5.pdf[/url]

The 10 year rule applies ONLY to DFAS's authority to directly pay the ex-spouse, not the the Court's authority to award a portion of military retirement. The document above also cites the conditions a divorce decree must meet for an award of military retirement and the conditions under which DFAS will administratively deny an award by a court.