Military Pension Division

[robemillner]

What is the name of your state (only U.S. law)? GA

My divorce case was continued awaiting a decision regarding my husband's petition for reducing support awarded by the Juvenile and Domestic Court, City of Chesapeake, Commonwealth of Virginia. At the time of the original divorce trial, I asked for continuance based on the pending matter in Virginia and argued the Uniform Interstate Family Support Act considers "spousal support/alimony" to have continuing exclusive jurisdiction in the State that rules on the support.

The Judge here in Georgia agreed. He also commented that he would divide the military pension for a lesser amount if the support judgement was in my favor according to what I would be getting.

The Virginia support was reduced only by $200.00 out of the $1200.00, allowing me $1000.00 a month.

I know the Georgia Statute regarding division of military pension doesn't give any guidelines on how it is done, other then the Judge may determine "what is fair".

Since military pension is "marital property" and not considered "income", I don't agree that the Judge should reduce the division to take into account the support award in Virginia.

I also don't believe that a support ruling in another State under other law should be considered in the Georgia divorce; unless it is to be considered income (which I can understand).

But military pension division isn't in regards to income. It is marital property.

Would it be a good strategy to argue that military pension is divided as "marital property", and is not income. Marital property in an equitable division State is not divided based on the "income" of either party, but on the basis of balancing the distribution of marital assets outside of income.

Also, would the Judge citing a decision in another State for the purpose of determining the pension division be something I could feasibly challenge?

 

[mistoffolees]

Since there is no statute in GA on division of the pension, the judge is free to divide it in almost any way that he considers fair. It doesn't matter if he makes something up or looks at other nearby states for ideas.

You can (and probably should) argue that property division should not be affected by support obligations. The opposite is not, however, true. If CP is receiving $1,000 a month from the property division (pension) that most certainly can affect the amount of child support CP would receive in some states, but not in GA.

The correct order for determining divorce factors is (IMHO), child custody should be determined first, then property division, then alimony, then child support.

However, on re-reading this, I'm a little confused - please clarify the situation. It looks like VA has jurisdiction over child support while GA has jurisdiction over property division. How did that arise?

 

[LdiJ]

Since there is no statute in GA on division of the pension, the judge is free to divide it in almost any way that he considers fair. It doesn't matter if he makes something up or looks at other nearby states for ideas.

You can (and probably should) argue that property division should not be affected by support obligations. The opposite is not, however, true. If CP is receiving $1,000 a month from the property division (pension) that most certainly can affect the amount of child support CP would receive in some states, but not in GA.

The correct order for determining divorce factors is (IMHO), child custody should be determined first, then property division, then alimony, then child support.

However, on re-reading this, I'm a little confused - please clarify the situation. It looks like VA has jurisdiction over child support while GA has jurisdiction over property division. How did that arise?

Its not child support, its spousal support. See posting history.

I could actually see spousal support getting reduced once the OP starts to receive a share of the military pension. Spousal support is based on monthly resources available to support the former spouse. Since a share of a military pension would be monthly resources available to support the former spouse, clearly that could impact alimony.

 

[mistoffolees]

Its not child support, its spousal support. See posting history.

I REALLY wish people would stop opening new threads all the time and providing only part of the information.

I could actually see spousal support getting reduced once the OP starts to receive a share of the military pension. Spousal support is based on monthly resources available to support the former spouse. Since a share of a military pension would be monthly resources available to support the former spouse, clearly that could impact alimony.

Yes, it could. That's why I indicated the order that I did - custody first, then property division, then alimony, then child support. Each item higher on the list can affect the items lower on the list.

 

[robemillner]

However, on re-reading this, I'm a little confused - please clarify the situation. It looks like VA has jurisdiction over child support while GA has jurisdiction over property division. How did that arise?

The support was awarded in the VA court due to abandonment. I had to flee to Georgia for protection due to threats of harm/life. That was presented in court in VA where I also obtained a protective order. The UIFSA states the court where spousal support was awarded holds continual exclusive jurisdiction and cannot be transferred to another State. So, the support stays in VA. The UIFSA treats spousal support (when no children are involved) differently from child support. You can several case law decisions in some other States where the CEJ has been ignored and then reversed in a spousal support only case.

Not sure what the point of Shay's response was. I appreciate your advise on my question. It's what happens before the Judge that counts, regardless of opinion. =)

 

[mistoffolees]

The support was awarded in the VA court due to abandonment. I had to flee to Georgia for protection due to threats of harm/life. That was presented in court in VA where I also obtained a protective order. The UIFSA states the court where spousal support was awarded holds continual exclusive jurisdiction and cannot be transferred to another State. So, the support stays in VA. The UIFSA treats spousal support (when no children are involved) differently from child support. You can several case law decisions in some other States where the CEJ has been ignored and then reversed in a spousal support only case.

I'm still confused. You fled to GA. Ex is still in VA, right? It's not clear to me that GA has jurisdiction over property division involving ex's pension if ex has never lived there.

In any event, Ld is right - once the property division is completed, that could reduce your spousal support if SS is modifiable in your order.

Not sure what the point of Shay's response was. I appreciate your advise on my question. It's what happens before the Judge that counts, regardless of opinion. =)

It's called a signature.

 

[robemillner]

Clarification

Ex lives in Idaho. I now live in GA. I filed for divorce in GA. Support was already in VA.

Neither one of us can move the support to either of our states due to CEJ in VA per the Uniform Interstate Family Support Act.

I see the point about the potential for reduction of support due to pension allowance, but it seems it would be an unnecessary action since it would just be a trade out monetarily.

And, from what my attorney in VA said, they are not likely to reduce in VA based on an award of pension. I doubt my share would be anything more then the amount the support was reduced by last week. I think it's $222.00 dollars a month, according to the percentage formula calculations.

 

[mistoffolees]

Ex lives in Idaho. I now live in GA. I filed for divorce in GA. Support was already in VA.

Neither one of us can move the support to either of our states due to CEJ in VA per the Uniform Interstate Family Support Act.

I see the point about the potential for reduction of support due to pension allowance, but it seems it would be an unnecessary action since it would just be a trade out monetarily.

And, from what my attorney in VA said, they are not likely to reduce in VA based on an award of pension. I doubt my share would be anything more then the amount the support was reduced by last week. I think it's $222.00 dollars a month, according to the percentage formula calculations.

Since you haven't told us what your order actually says - or whether it's even modifiable, it's impossible for anyone to answer. But if the order is modifiable, then receiving part of the pension could most certainly reduce your alimony. Plus, if ex is now receiving pension instead of working, that could reduce your alimony. Since you're talking in generalities, no on can really help you.

Furthermore, you still haven't answered just how GA is going to divide ex's military pension. GA has no personal jurisdiction over him since he has never lived there.

 

[LdiJ]

Since you haven't told us what your order actually says - or whether it's even modifiable, it's impossible for anyone to answer. But if the order is modifiable, then receiving part of the pension could most certainly reduce your alimony. Plus, if ex is now receiving pension instead of working, that could reduce your alimony. Since you're talking in generalities, no on can really help you.

Furthermore, you still haven't answered just how GA is going to divide ex's military pension. GA has no personal jurisdiction over him since he has never lived there.

There is a possibility that the bolded is not accurate. A military pension is federal and subject to federal rules to a great extent. If we were talking about property located in a state other than GA, and the husband did not live in GA, I would agree with you. However I am not certain you are accurate when it comes to a military/federal pension.

 

[mistoffolees]

There is a possibility that the bolded is not accurate. A military pension is federal and subject to federal rules to a great extent. If we were talking about property located in a state other than GA, and the husband did not live in GA, I would agree with you. However I am not certain you are accurate when it comes to a military/federal pension.

It's really not that hard to look these things up:
http://apps.americanbar.org/family/military/silent/mpd_scoutingterrain.pdf

Federal Jurisdictional Tests. Pursuant to this section of the Act, a state may only exercise jurisdiction over a military SM’s pension rights if –
• That state is his or her domicile; or
• The SM consents to the exercise of jurisdiction; or
• The SM resides there (for reasons other than military assignment in that state or territory).

(note: 'SM' means 'service member')

and:

It limited pension division jurisdiction to a state where the SM was domiciled, had consented to jurisdiction, or resided not due to military assignment. [These are the “federal jurisdiction” rules]

Unless ex lived in GA or consents to GA having jurisdiction, GA can not exercise jurisdiction over ex's military pension.

 

[robemillner]

Since you haven't told us what your order actually says - or whether it's even modifiable, it's impossible for anyone to answer. But if the order is modifiable, then receiving part of the pension could most certainly reduce your alimony. Plus, if ex is now receiving pension instead of working, that could reduce your alimony. Since you're talking in generalities, no on can really help you.

Furthermore, you still haven't answered just how GA is going to divide ex's military pension. GA has no personal jurisdiction over him since he has never lived there.

-----------

I see what your saying. I'll try to make this clearer.

We both lived in VA at the time EX abandoned me.

The spousal support is in VA which has continual exclusive jurisdiction and cannot be moved to GA. That has already been determined with both the Judge in GA and the Judge in VA agreeing on the UIFSA language concerning "support/alimony".

The support IS modifiable. Ex petitioned for discontinuance/reduction 9/27/11 and Judge reduced it, but only by $200.00 based on him being unemployed. He has other income (pension, unemployment, under the table contract work). We had subpoenaed bank statements, pension LES, and unemployment records. He furnished a financial affadavit which listed some expenses unaccounted for on his bank statements and could not explain where the money was coming from to pay those expenses which we argued was an indication he had other funds unreported. We had already come into court two other times where he was claiming indigence. Once was continued because my attorney couldn't be there and the second because he had recently hired an attorney and EX had not given him all info on the case. EX has a degree in information sciences networking. The court was aware of my employment and was furnished a financial affadavit of my income and expenses to determine this ruling.


EX never lived in GA. EX waived rights concerning jurisdiction at the last hearing in GA that was continued.

In GA, the Judge hearing the divorce case had previously ruled for a continuance due to the above pending support action due to his not being able to rule on the division of marital property without knowing how much support I would be getting. He said he would reduce or allow pension based on the amount of support out of VA.

About the VA support: VA decides support based on the payor's ability to work, not on actual employment. The attorney argued that EX had turned down a transfer into the home office when his existing job had ended. EX said he turned it down because he didn't think it paid enough. My attorney also argued that EX made a decision to move to a location where unemployment is known to be exceptionally high (Sandpoint, Idaho) with very little opportunity. At the time, the EX moved to Idaho, he had a surplus savings of $24,000.00 and could have feasibly relocated to any other area where employment was more likely. The EX continued to claim indigence until we proved his assets and income. EX also refuses to pay his car note and provide insurance on the vehicle which I pay in order to keep driving it. The car loan is in the EX's name and on title.

 

[mistoffolees]

EX never lived in GA. EX waived rights concerning jurisdiction at the last hearing in GA that was continued.

Then your ex is an idiot. GA would have had absolutely no right to divide the pension until your ex waived rights to object to jurisdiction.

 

[robemillner]

Waived Rights

Well, I would have to agree with that one. Even more surprising, his attorney advised him to do it.

My husband had been advised by his attorney that the VA position and the UISFA provision concerning the CEJ would not be upheld in GA and that the GA Judge would incorporate the VA support and dismiss it. When the Judge asked if the EX was waiving jurisdiction, his attorney stated he was waiving jurisdiction as well as his challenge of being served improperly.

I still don't understand where that came from.

When we appeared, I immediately asked for continuance based on the pending judgement in VA and cited the UISEA and CEJ position. The Judge told me I didn't know what I was talking about. I continued to insist that he look at the VA order. After much back and forth, the Judge looked at the order and announced he would have to leave the courtroom to do research. He was gone for over an hour. He came back and stated I was right and explained why. He then ordered the continuance.

This time around, I am paying to have it recorded. If the Judge treats the pension (marital property) as if it is income in order to justify lowering my share (and GA being an equitable division State), I intend to appeal based on the definitions of marital property. I would also appeal the consideration of an out of state judgement in a Georgia decision, but I'm not clear if that is arguable.

At any rate, the EX seems to have been given poor advice from his attorney. It surprises me that attorneys and Judges who handle matters concerning UIFSA are unaware of the difference in the handling of spousal support and child support. They seem to think it is the same and the UIFSA clearly states spousal support, alone, remains in the State that decided it (CEJ). Virginia has case law on this as well as PA, NJ, and NY. Those are the cases I looked at, but I'm sure there are others.

I had previously had to go through this whole argument in Idaho when the EX had the support order registered as a foreign judgement in an attempt to make it modifiable for a pending divorce he planned to file. So, I had to get an attorney up there to go through this same deal. The Idaho Judge dismissed it for the same reasons.

So far, the EX has spent around $10,000.00 in attorney fees and travel expenses on all 3 cases with minimal result. Of course, he IS indigent.

 

[robemillner]

Question About the Court Calendar

I didn't want to start another thread since this is pertaining to the Gwinnett County court calendaring of my case.

I learned today that my case is on a "two week" calendar starting October 10, 2011. I understand from the Judge's assistant that I have to call a telephone number with a recorded message that says which case will be seen the next day.

I live locally, but my employer has stated they require adequate notice for me to be absent. The Judges office says they cannot tell me a specific date.

What is the purpose of a "two week calendar" instead of an set date?

My EX lives in Idaho and has to travel to get here. My understanding from the Judges office is that the case could be called at 9:00 am the next day anytime during this two weeks. That would make it impossible for my EX to arrange to travel since it takes many hours to travel to the city he would fly out of and fly to Atlanta, not to mention the cost of the airfare unless he bought an open ticket.

I spoke to his attorney at the court yesterday. He said a couple of things that made me think he has a specific date his client will need to be here.

If my EX has been given a specific appearance date, why would they not tell me when it is? Something about this doesn't seem right.

 

[LdiJ]

Well, I would have to agree with that one. Even more surprising, his attorney advised him to do it.

My husband had been advised by his attorney that the VA position and the UISFA provision concerning the CEJ would not be upheld in GA and that the GA Judge would incorporate the VA support and dismiss it. When the Judge asked if the EX was waiving jurisdiction, his attorney stated he was waiving jurisdiction as well as his challenge of being served improperly.

I still don't understand where that came from.

When we appeared, I immediately asked for continuance based on the pending judgement in VA and cited the UISEA and CEJ position. The Judge told me I didn't know what I was talking about. I continued to insist that he look at the VA order. After much back and forth, the Judge looked at the order and announced he would have to leave the courtroom to do research. He was gone for over an hour. He came back and stated I was right and explained why. He then ordered the continuance.

This time around, I am paying to have it recorded. If the Judge treats the pension (marital property) as if it is income in order to justify lowering my share (and GA being an equitable division State), I intend to appeal based on the definitions of marital property. I would also appeal the consideration of an out of state judgement in a Georgia decision, but I'm not clear if that is arguable.

At any rate, the EX seems to have been given poor advice from his attorney. It surprises me that attorneys and Judges who handle matters concerning UIFSA are unaware of the difference in the handling of spousal support and child support. They seem to think it is the same and the UIFSA clearly states spousal support, alone, remains in the State that decided it (CEJ). Virginia has case law on this as well as PA, NJ, and NY. Those are the cases I looked at, but I'm sure there are others.

I had previously had to go through this whole argument in Idaho when the EX had the support order registered as a foreign judgement in an attempt to make it modifiable for a pending divorce he planned to file. So, I had to get an attorney up there to go through this same deal. The Idaho Judge dismissed it for the same reasons.

So far, the EX has spent around $10,000.00 in attorney fees and travel expenses on all 3 cases with minimal result. Of course, he IS indigent.

Re the bolded....

Alimony is based on equitable need. If you were to receive 1/2 of his pension then your equitable need would be much smaller.

In all reality, you would be much better off receiving 1/2 (or whatever you are entitled to based on how long you were married while he was in the service) of his pension than to receive alimony. If you were married to him at least 10 years of his service year, your share of the pension would be paid directly to you, by the government, and you would never have to worry about chasing him for payment....for the rest of your life.

If you continue to receive alimony, and a reduced or no pension amount, then you have to worry about chasing him for it, or for him modifying it in the future.

If I were in your shoes I would be very tempted to agree to either no alimony or reduced alimony, in exchange for your full share of the pension, again assuming that you had been married to him for at least 10 of his service years. That is guaranteed money. Alimony is far less guaranteed.

As far as the scheduling is concerned...I have no clue regarding that. It does seem odd.