FACT OR “WHACKED”? MYTHS AND MISTAKES IN MILITARY DIVORCES

The following very informative piece was written by North Carolina family law attorney  Mark Sullivan and appeared on the Solosez listserv. He is a man of whom it can truly be said, "He wrote the book" on the subject of military issues in family law, because Mark is the author of The Military Divorce Handbook.

INTRODUCTION: As a service to our legal assistance clients, we have prepared this handout with frequently asked questions on issues involving an overview of the divorce process. It is, of course, very general in nature since no handout can answer your specific questions. We do ask, however, that you read over these explanations carefully in connection with your visit to our legal assistance attorneys so that you may have the fullest information available to help you with your family law problem. Please send comments, corrections and suggestions regarding this pamphlet to the address at the end of the last page. *

INTRODUCTION

In too many military divorces, a client or lawyer makes a costly mistake.

Often it’s because the client is unaware of the options or the law, someone relies on rumors and myths, "barracks lawyers" and buddies provide well-meaning but erroneous information, the attorney is unaware of the rules for military retirement and its division, or the rules themselves are too complex, illogical and confusing. This LEGAL EAGLE will help you sort out truth from "urban legends," the fact from the " *whacked*." Since this information is necessarily brief, ask your lawyer for a further explanation if you need to learn more.

HALF THE MILITARY PENSION?

"It was not his fault," Mrs. Green explained when she brought her new husband, retired Army Master Sergeant Jake Green, to see the divorce lawyer. "He was very upset when he went through the divorce from his ex-wife, Jane. He was confused. He didn’t have a lawyer and he didn’t pay attention to what he was signing."

"You’re right about that, ma’am," the new divorce attorney replied. "I’ve reviewed these divorce papers and it appears that he signed away half of his military pension to his ex-wife, even though he’d only been married to her for ten of the thirty years he was in the Army. That’s a huge problem, and he wasn’t forced to do it he did it willingly. Jane got way more than she should have."

*FACT #1:* *Unless the marriage lasts for the entire military career, you

need to know about the "marital share."*

MSG Jake Green didn’t. He gave away half of his pension, when he should have divided only the marital share of the pension. The marital share is that acquired during the marriage while in military service. It begins with the wedding or the start of military service, whichever comes later. It ends usually on the date of marital separation or divorce, depending on state law. In Jake’s case, he gave away too much of the pension 50% to his ex rather than the correct percentage, which probably would have been closer to 16%. "It’s all his lawyer’s fault," shouted the new Mrs. Green. "He didn’t know a thing about dividing military retirement pay!"

SURVIVOR BENEFIT PLAN BASICS

"That’s for sure," replied the new divorce lawyer. "It’s obvious he didn’t know anything, because that lawyer also missed out on the Survivor Benefit Plan. He should have written the agreement to award the SBP to Jane, the former Mrs. Green, but he completely overlooked it. It’s left out. He probably wasn’t even aware it was available."

(more…)