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Help question about divorce decree

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starzzmine

Junior Member
What is the name of your state (only U.S. law)?
Hello,
I was divorced in Ca in 2001. In my divorce decree it states that "we acknowlege we own a community asset retirement benefits earned by husband as result of his employment with the us navy during the marriage. That is retirement shall be divided according to a "time rule formula". The court reserves jurisdiction to enter orders dividing the same.

At this time my exhusband has retired as of 11/30/09. I have found the form that I need to send the department of finance for the navy. Howver on that form it asks for the percentage of the retirment pay that is to be paid to me. No where on my divorce decree does it state a percentage. How do I go around this? I have contacted my old attorney in Ca and his charging 2 hours to review my divorce decree and fill out the paperwork. I am getting worried that there might have been an error on my attorney's part almost 9 years ago and that will affect the out come in me obtaing part of his retirement funds. Any idea's whay I can do or if this is fixable?
 


In order for DFAS to make a payment, the property settlement in the divorce decree must be clear as to what is being awarded. Either a set amount, a percentage of the retired pay, or a formula that can clearly determine this.

Often, when the divorce occurs prior to the military member's retirement, the formula in the court order may be listed as the months of the marriage during which retirement was earned divided by the total months of service times 50 percent. Example, a couple was married 8 years while the member was on active duty. Member retires after 20 years. So 96/240x.50=.20. Ex spouse will receive 20% of the member's retirement.

If your court order doesn't provide a clear formula, percentage or amount, you will have to go back to court and have it clarified. Does the court order explain the "time rule formula"?
 
You can obtain more information about how the court order must read by going to the DFAS website. Were you married for at least 10 years while he was on active duty? That is also a requirement for DFAS to make a direct payment to you.
 

starzzmine

Junior Member
additinal information

In order for DFAS to make a payment, the property settlement in the divorce decree must be clear as to what is being awarded. Either a set amount, a percentage of the retired pay, or a formula that can clearly determine this.

Often, when the divorce occurs prior to the military member's retirement, the formula in the court order may be listed as the months of the marriage during which retirement was earned divided by the total months of service times 50 percent. Example, a couple was married 8 years while the member was on active duty. Member retires after 20 years. So 96/240x.50=.20. Ex spouse will receive 20% of the member's retirement.

If your court order doesn't provide a clear formula, percentage or amount, you will have to go back to court and have it clarified. Does the court order explain the "time rule formula"?
The divorce decree does not explain the time rula formula and I was married to him for 10 years while on active duty.
 
This link explains exactly how the court order should read to be enforceable - http://www.dfas.mil/garnishment/retiredmilitary/speech8.pdf.

If your court order doesn't meet the criteria, you'll have to get it modified. And, yes, based on the information you provided, your attorney did not understand how to properly word the property award.

You should also go back and read your entire court order to see if the formula is explained anywhere in the document.
 

Ronin

Member
You really need an an attorney to go back and have the orders clarified to be more specific with respect to the time rule formula. The language could have been better made at the time to avoid any confusion. But at the time of the divorce, there was really no way to determine the value of your share of the pension other than proportionately.

The "time rule formula" basically states that you are entitled to a proportionate share of the benefits.

Most simply, if you were married for ten years while he was in the military and he left the service on the day of your divorce, you would be entitled to 1/2 his pension. But after only ten years the pension would not be that much.

If your were married for 10 years while he was on active duty, and he retired with 20 years of service, you would be entitled to 1/4 of his retirement.

If you were married for 10 years while he was on active duty, and he retired with 30 years of service, you would be entitled to 1/6.

Now in these cases, 1/6 is generally better than 1/4, which is better than 1/2. While this may seem counterintuitive, such benefits tend to increase exponentially in the later years.

But at the time of the divorce, your attorney had no way of knowing how long he would stay in service, which would impact the percentage you are entitled to.

Courts generally cannot undo or rewrite any mistakes that were made. However, it does not appear a mistake was really made, since the "time rule formula" provision in the decree should be enough for the court to clarify the order so you get exactly percentage you are entitled to, based upon his years in service at retirement.
 

mistoffolees

Senior Member
You really need an an attorney to go back and have the orders clarified to be more specific with respect to the time rule formula. The language could have been better made at the time to avoid any confusion. But at the time of the divorce, there was really no way to determine the value of your share of the pension other than proportionately.

The "time rule formula" basically states that you are entitled to a proportionate share of the benefits.

Most simply, if you were married for ten years while he was in the military and he left the service on the day of your divorce, you would be entitled to 1/2 his pension. But after only ten years the pension would not be that much.

If your were married for 10 years while he was on active duty, and he retired with 20 years of service, you would be entitled to 1/4 of his retirement.

If you were married for 10 years while he was on active duty, and he retired with 30 years of service, you would be entitled to 1/6.

Now in these cases, 1/6 is generally better than 1/4, which is better than 1/2. While this may seem counterintuitive, such benefits tend to increase exponentially in the later years.

But at the time of the divorce, your attorney had no way of knowing how long he would stay in service, which would impact the percentage you are entitled to.

Courts generally cannot undo or rewrite any mistakes that were made. However, it does not appear a mistake was really made, since the "time rule formula" provision in the decree should be enough for the court to clarify the order so you get exactly percentage you are entitled to, based upon his years in service at retirement.
I agree with all of the above. HOWEVER, before hiring an attorney and going back to court - which is simply going to cost both people money, I would suggest calculating the amount based on the actual service years while married and the total service years and presenting it to the ex for agreement. If he agrees, they can present it to the court for clarification and it should go through fairly smoothly (and inexpensively). Make sure to use the exact wording given earlier in this thread. If he refuses, OP can always hire a lawyer at that point.

The formula is (AFAIK):

Spouse's percentage of pension = 1/2 * (Years they were married while he was in the service ) / (total years he was in the service)
 
I agree with all of the above. HOWEVER, before hiring an attorney and going back to court - which is simply going to cost both people money, I would suggest calculating the amount based on the actual service years while married and the total service years and presenting it to the ex for agreement. If he agrees, they can present it to the court for clarification and it should go through fairly smoothly (and inexpensively). Make sure to use the exact wording given earlier in this thread. If he refuses, OP can always hire a lawyer at that point.

The formula is (AFAIK):

Spouse's percentage of pension = 1/2 * (Years they were married while he was in the service ) / (total years he was in the service)
That would be the best approach. Also, OP can ask DFAS to review the court order to determine if they can process. And although I would interpret "time rule formula" the same as Ronin did, I can tell you this--DFAS will not make interpretations--the formula must be spelled out in the decree.
 

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