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rannan3
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Amend a QDRO
      #543140 - 06/07/09 05:43 PM

My former spouse's attorney filed a QDRO after I retired. Our divorce decree stated she had community interest in my retired pay. The first I knew of the QDRO ( and what it contained ) was when DFAS notified me and provided a copy.
There are material facts wrong in the QDRO. I had broken time. I entered the USMC 9 June 1966 ( single man ) lost both knees in Viet Nam in 1969, so left the corp when my
release date came up 8 June 1970 ( single man )
We married 31 Oct. 1970 , while I was a civilian. I reenlisted 30 Nov. 1974 ( married man ) and retired 31 Aug. 1992 ( single man )
Our divorce was heard 8 May 1984 ( we legally separated 26 Feb. 1984 ) but not filed until 28 Feb. 1985 ( I went to the atty's to see why it had not been filed, he stated my former spouse told him we were reconciling, which was false, so I asked for and rec'd the decree and went & filed it myself )
The QDRO filed gave her credit for all 14 years, 4 months of the marriage as her vested interest in my retired pay. This was accomplished due to a DD214 they found that changed my base entry pay date and did not reflect my break in time ( it says 9 June 1968, not 1966 ) I believe this happened after my early records were lost in the fire at NPRC in 1973. I have my original DD214, my service record report for the early years, my second enlistment contract, showing I was reenlisting in 1974 , and I have applied to the Naval Dept. for correction of my base entry pay date.
Now here's the situation , I had an attorney and was trying to clarify the QDRO, but the atty. stopped communicating with me . Never did find out why. Attempts to find her suggest she moved, she was in CA ( where we were divorced ) and I live in Iowa.
Because I am an over the road driver, gone 3 to 4 weeks at a time, and due to lack of funds, I just gave up.
But my former spouse has been receiving payments since 1998 based on the 14 years, 4 months of qualifying, covered service, but it should have been 9 years, 4 months.
She knew the first 4 years of our marriage I was a civilian. Can I still try to amend the QDRO, and get this corrected, by charging fraud -- on her part ?
The court did state in the QDRO they retained jurisdiction in case amendments became necessary, but I'm wondering if the amount of time that has gone by will stop me from challenging this successfully ?
Thanks for listening.


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Redlegg
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Re: Amend a QDRO [Re: rannan3]
      #543141 - 06/07/09 06:09 PM

What date was the divorce final, what is BASD, , are you getting any disability, and what exactly is the wording of the decree where it divides your retired pay??

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rannan3
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Re: Amend a QDRO [Re: Redlegg]
      #543143 - 06/07/09 06:40 PM

Final when I filed it 28 Feb. 1985.

No disability, I did not try for it in 1970 because I wanted to go back in. After my initial surgeries in 1969, I had subsequent civilian surgeries to each knee, in 1973 and 1974.

Not sure what you're asking for -- BASD ?

Exact wording from divorce decree is " Petitioners share would be one-half or 50% share of Respondent's disposable retirement pay earned during the term of the parties marriage. The Respondent's pay entry base date was Nov. 30, 1968 and his retirement was Aug. 31, 1992.
( that pay entry base date is incorrect, in Nov. of 1968 I was already in Viet Nam, my service record report shows that )


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Redlegg
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Re: Amend a QDRO [Re: rannan3]
      #543145 - 06/07/09 07:20 PM

Basic active service date, or Diems????

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Redlegg
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Re: Amend a QDRO [Re: Redlegg]
      #543146 - 06/07/09 07:21 PM

Is she getting 50% of your retirement????

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rannan3
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Re: Amend a QDRO [Re: Redlegg]
      #543148 - 06/07/09 08:17 PM

Basic active service date
first enlistment--

June 9 , 1966 to June 8, 1970

second enlistment
Nov. 30, 1974 to Aug. 31, 1992

She has been receiving 32.9502 % since 1998

172 ( months of marriage )
----------------------------- x 50% = 32.9502
261 ( months of service )

Initially DFAS did give her 50% of my half, when I
challenged that, they reconsidered, and changed it to 50% of my retirement pay ' earned during the marriage ".

But as you can see from the months of marriage they credit her for , it is for 14 years , 4 months.


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Redlegg
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Re: Amend a QDRO [Re: rannan3]
      #543149 - 06/07/09 08:45 PM

This is going to take some leg work, but I will take a shot. The one thing you have to look at is why you had a 4 year break, and your PEBD was only adjusted 2 years. I had a break in service, and they adjusted my PEBD, which is never supposed to change. I ended up getting 13 years of back pay since they were paying me wrong. I am not sure there is much you can do if you have already submitted it to the board for corrections. I will see if I can figure out something.

I am pretty sure I knwo what happened, they do normally adjust a BASD to compensate for your break, but not the PEBD, sometimes they adjust both, like they did to me. Once they made the adjustment, whenever anyone looked to see what she was eligible for, they would have seen the adjusted BASD and assumed you were in during that time.

I will look and see what I can find.


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rannan3
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Re: Amend a QDRO [Re: Redlegg]
      #543151 - 06/07/09 09:14 PM

thanks, I appreciate the help !

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Redlegg
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Re: Amend a QDRO [Re: rannan3]
      #543189 - 06/08/09 06:11 AM

See what your decree says and then number 2 from DFAS, it sounds like you have an unenforceable order at this point. You said you challenged it, and DFAS changed it, but DFAS cannot change court orders, it would require a clarifying order from the court. So what happened with that, and who provided the erroneous information for the BASD????



Exact wording from divorce decree is " Petitioners share would be one-half or 50% share of Respondent's disposable retirement pay earned during the term of the parties marriage. The Respondent's pay entry base date was Nov. 30, 1968 and his retirement was Aug. 31, 1992.
( that pay entry base date is incorrect, in Nov. of 1968 I was already in Viet Nam, my service record report shows that )




e. Examples of unacceptable former spouse award language.
1. “The former spouse is awarded one-half of the community interest in the member’s military retired pay.”
Here, there is no way for us to determine the community interest unless a formula for calculating it is provided elsewhere in the court order.
2. “The former spouse is awarded one-half of the member’s military retirement that vested during the time of the marriage.”
The problem here is that there is no way for us to determine an amount or percentage. Military retired pay is a Federal entitlement, which the member either qualifies for or does not. It does not vest in any way prior to the member’s retirement.
3. “The former spouse is awarded one-half of the accrued value of the member’s military retirement benefits as of the date of the divorce.”
The problem here is similar to that above. Since military retired pay is a statutory entitlement, there is no value that accrues prior to the member’s retiring.
4. “The former spouse shall be entitled to 42% of the member’s military retirement based on the amount he would have received had he retired as of the date of the divorce.”
Since we do not have access to the member’s active duty service information, there is no way for us to determine the member’s rank or years of active duty service as of the date of divorce. Thus, there is no way for us to compute a hypothetical retired pay amount.
5. “The former spouse is a awarded a portion of the member’s military retired pay calculated according to the Bangs formula.”
Here, the court order presupposes that we are familiar with that State’s laws and know what the Bangs formula is, or that we are able to do legal research to resolve an ambiguity in a court order.
6. “The former spouse is awarded an amount equal to 50% of the member’s disposable retired pay less the amount of the Survivor Benefit Plan Premium.”
The amount of the former spouse’s award must be expressed either as a fixed dollar amount or as a percentage of disposable retired pay. This award does not meet that requirement.


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rannan3
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Re: Amend a QDRO [Re: Redlegg]
      #543198 - 06/08/09 06:53 AM

Here's what DFAS's second determination letter to me states
" You raised the issue that your former spouse is not entitled to your retirement pay. Your QDRO and Decree of Divorce issued by the Superior Court of CA, County of San Bernardino, states you were married on Oct. 31, 1970 and were divorced on Feb. 28, 1985, ( a period of 14 years, 4 months ) You retired on Aug. 31, 1992. Therefore the requirement of 10 years of marriage while you performed 10 years of creditable service has been met.
We have reviewed your QDRO, your former spouse was paid 50% of your disposable retirement pay, which resulted an overpayment in the amount of $1,816.01 instead of 50% of your retirement pay earned during the marriage, which is 32.9503%."

It goes on to say they will stop her check until I am paid back that amount they found they had already paid her in error. This is what I meant when I said DFAS ' changed her amount ' after I challenged the QDRO and requested a full audit of my military record.

As for the erroneous info for the BASD, I don't have a copy of it, but her atty. claims to have rec'd a DD214 for me which states " Enlisted : Unites States Marine Corp, Good
Conduct Period Commences 30 Nov. 1968 "
( in the remarks section ) That's how they got that incorrect date, from my records which have been changed.

If this order was ( or should have been ) unenforcable , how should I proceed ? Is my dispute with DFAS, and do I go before the CA court to argue this ??


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rannan3
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Re: Amend a QDRO [Re: rannan3]
      #543205 - 06/08/09 07:11 AM

exact wording from decree ( perhaps this was the determining factor )

" 4. That based upon the facts stated herein, Petitioner is entitled to 50% of Respondent's disposable retirement( military ) pay earned during the marriage. The term of the marriage has been determined to be as follows : The date of the marriage was Oct. 31, 1070 to the date of separation, Feb 28, 1985 ( a period of 14 years, 4 months ) This pay shall not include any of Participant's disability pay. The division of retired pay shall be computed on the basis of the member's retired pay at the time of his retirement.

** in the early part of the QDRO, it also states " The Respondent's pay entry base date was Nov 30, 1968, and his retirement date was Aug. 31, 1992. "

IT does read to me as if the QDRO gave DFAS what it needed. BUT my point is the dates were incorrect. My spouse KNEW she should not have been credited for those first 4 years when I was a civilian ! It also states in the QDRO she is " the former ( unremarried ) spouse -- another falsehood, she remarried in 1990, before this QDRO was filed. I have a copy of her license to prove it.


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Redlegg
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Re: Amend a QDRO [Re: rannan3]
      #543206 - 06/08/09 07:16 AM

I will bet that is the start date for the good conduct medal.

What I was referring to was the wording of the order that say 50% of your retirment earned during the term of the marriage

DFAS unenforceabel version

2. “The former spouse is awarded one-half of the member’s military retirement that vested during the time of the marriage.”
The problem here is that there is no way for us to determine an amount or percentage. Military retired pay is a Federal entitlement, which the member either qualifies for or does not. It does not vest in any way prior to the member’s retirement.


I think the court order may be ok, it is how DFAS came up with the percentage that is the problem, which needs to corrected at DFAS. The very first thing I would do is call DFAS and tell them that the order is wrong because they used the wrong ionformation off the 214. You can either ask them to read it with you, or you can send certified documents supporting the actual datesa, all 214s, marriage/divorce certificate to correct it. See what they say it needs to correct it. You have your original 214s and you might have to walk them down the road, but call them first and see what they tell you. You are not fighting the order, just the amount. They used something her lawyer provided which doesn't mean anything if they use the wrong info.

Remarks sections usually do not have the dates of service, there is a series of blocks in the the top third. I just pulled mine out and it has block 12 as the record of service, there are A through H, which covers entered AD this period, prior service, net active, etc. They used the wrong info, check the 214 because the actual data is probably on the one they used.


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rannan3
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Re: Amend a QDRO [Re: Redlegg]
      #543209 - 06/08/09 07:31 AM

I did everything you just said previously with DFAS, Provided both certified 214's, argued each point, in writing, provided all documents proving my point. They came back and said only a court order can change this.

Do you think the court will change this, if I appear and argue these points ? Am I asking for an amended QDRO, or Clarification, unsure on this point ? I also am concerned her attorney will fight it, based on the amount of time that has elapsed.


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rannan3
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Re: Amend a QDRO [Re: rannan3]
      #543210 - 06/08/09 07:32 AM

yes, the blocks for 'record of service ' are correct as to dates. Her attorney must have used the dates for Good Conduct time commences.

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elliesmom
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Re: Amend a QDRO [Re: rannan3]
      #543337 - 06/08/09 10:51 AM

You need to get an attorney and file for a clarifying order to your decree. Once you have a clarifying order that post-dates the QDRO, DFAS will follow that instead. As long as you were married for 10 years of active duty time - DFAS will pay her whatever her QDRO says and your beef is not with them.

--------------------
Forgiveness is...letting go of the hope that the past can be changed.


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Redlegg
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Re: Amend a QDRO [Re: elliesmom]
      #543395 - 06/08/09 11:40 AM

So your 214's have the correct date, her attorney provided the wrong one. They actually have the original order with the accompanying 214 that has the correct date on there(in block 12). Dfas computed the percentage, not her lawyer, they(her lawyer) just provided the dates, correct. The way I am understanding this is that the order dividing the pay is fine, but the QDRO is incorrect based on her lawyer using the wrong date??

And DFAS has the actual 214. Now, you are saying that the actual date on the 214 is correct, do they have a different 214 with the wrong date in block 12, or did they just use the remarks date in ref the good conduct.

The reason I am asking is because you filed for a DD215 to correct something, but you are also sayiing the dates are actually correct, and that they used the wrong one????


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rannan3
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Re: Amend a QDRO [Re: Redlegg]
      #543694 - 06/08/09 03:21 PM

I did file with the Naval Dept, to correct my base entry pay date.

DFAS (nor her attorney) never provided me with the 214 they were operating from. I provided DFAS with my 214, which is accurate, but by that time, they had accepted the QDRO, made their determination, and will not budge without a new QDRO.

I can't say for sure if they just used the dates from the QDRO as presented, but I did challenge their calculations, and requested a complete audit of my active duty dates of service.
And one of the DD214's found during this audit does show the incorrect base entry pay date of Nov 30, 1968. ( I know because the USMC sent me copies of all 214's they had in their records )
I'm assuming that must be what her atty. had , whether that was sent with the QDRO to DFAS, or DFAS relied on the dates from the QDRO, I can't say. I just don't know.


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Redlegg
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Re: Amend a QDRO [Re: rannan3]
      #543725 - 06/08/09 03:56 PM

it's an official document, I think at this point all you can do is what you have done, and wait on the 215. You have given them proof of the actual dates, certified copies, and they still won't budge, wait for the 215, and keep on trying. In the meantime I would talk to a lawyer, see what they can do, and put a call in to your congressman, they can make things happen.

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rannan3
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Re: Amend a QDRO [Re: Redlegg]
      #543751 - 06/08/09 04:15 PM

I did just submit all docs to an attorney, waiting to hear what he advises.
I thank you all for discussing this with me, and especially you, Reddlegg, for all your 'leg-work ' .

Gunny ( rannan3 )


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