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This can sometimes preserve the pension division for courts where the rules are more in John's favor, although it also can result in two cases in court, not just one, at the time of the divorce. This can stop or slow down the lawsuit for a while. John needs to ask for a stay under the SCRA if his military duties prevent his appearing in court or participating in the lawsuit. John's lawyer needs to know how to request a stay. The initial stay requires a statement to the court showing how the SM's duties prevent his participation in the court case and when he will be available; also required is a statement from John's commanding officer that his military duties prevent his appearance and he cannot be given leave.
Additional stays are available; when requesting one, be sure to provide clear and specific information about the negative impact that military service has on your ability to respond to the lawsuit.
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- FACT OR "WHACKED"? MYTHS AND MISTAKES IN MILITARY DIVORCES?
Judges don't like exaggerations. The problems for Mary Doe don't stop with where to sue John , her husband, for military pension division. One deadline applies if the SM or retiree submits the order; this is one year from the date of divorce. If, on the other hand, the spouse or former spouse submits the order for SBP coverage, then the deadline is one year from the date of that SBP order. It can be disastrous if the retiree dies early; the former spouse is left with nothing. There are more deadlines than just ones for SBP.
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One of the most important ones is that which covers military medical coverage for a former spouse. This coverage can mean tremendous savings for her or him, so long as everyone keeps their eyes on the clock and the calendar. Retiring early or proceeding too soon with the divorce can wipe out these benefits. FACT 7: Don't rush the divorce or retirement; medical coverage is valuable. If there is military service of at least 20 years, a marriage that has lasted at least 20 years, and an overlap of at least 20 years, then the former spouse is entitled to TRICARE and military medical treatment.
Be sure that those deadlines are met, if possible. It doesn't cost John Doe anything for Mary's coverage, and it can save her a substantial amount. Another deadline deals with direct pay from DFAS. Knowing if that has been met means Mary knows if she'll get her check every month from the source — DFAS — or whether she'll have to chase John around the nation, or the world, to get him to pay. The rule specifies that DFAS will send a check to the former spouse by garnishment of the retiree's pension as property division. If there is a overlap, then DFAS sends out two checks and withholds the appropriate tax amount from each.
Without compliance, the former spouse must look to the retiree for direct payments. Note that overlap is not necessary for child support or alimony garnishment. FACT 9: There is no minimum number of years for divisibility of the military pension. As mentioned earlier, the rule deals with how payments are made. A overlap of marriage and military service means that the payment will come from DFAS if you serve the court order there. Without a overlap, payments come from the retiree. It has nothing to do with eligibility for a share of retired pay. Federal law only makes pension division available, under rules set out in state statutes.
There is NO federal entitlement to anything, and a clause stating this is worse than worthless. It gives the spouse nothing. I know they'll accept that. FACT Disposable retired pay is often a lower amount than gross retired pay; know the difference! This change of wording could mean a loss of several hundred dollars or more. And there was nothing she could do about it! He just retired. Reilly receives none of these annual adjustments for inflation.
There are other approaches to pension division — percentage, formula and hypothetical clauses — which allow the sharing of COLAs between the parties. FACT Military pension division is specialized work. Get a specialist to help you. The specialist doesn't have to be your main lawyer for the divorce; the divorce lawyer can simply associate co-counsel to help with the military pieces of the divorce, like family support, pension division or SBP.
Don't go it alone! JAG officers can be very useful, and the help is free, of course. But often they don't have the in-depth knowledge necessary for a serious case, they cannot go into court, and they usually have short-term assignments in legal assistance, yielding limited exposure and expertise. If you are going to use a military legal assistance attorney, ask him or her whether it would be a good idea to get some help from a civilian attorney, preferably one in the state where the divorce would occur. Says Ft. Dix chief of claims Jackey Nichols,.
The saddest story is know about a client I'll call Helge Schmidt. Since Texas law does not provide for life-long alimony, she and her attorney thought she was getting a good deal.
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But the attorney didn't know beans about the military pension and benefits for a former spouse. By proceeding, you represent that you have read and understand the terms of the DPPA, and that you are conducting your search for a purpose authorized by the DPPA. You understand and agree that your use of this service and of the results of your motor vehicle records search for any purpose other than a DPPA permitted purpose may subject you to liability under the DPPA. Vehicle owner information is not always available. You will be required to attest to these statements again in the member's area prior to conducting your search.
As required by the DPPA, we will retain a record of your request, including your name and selected permitted purpose s.
Alimony in a South Carolina Divorce
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