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VpokerL1
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Reged: 03/29/09
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Ex wants part of retirement pay after 24 years.
      #518451 - 03/29/09 12:02 PM

I retired from USAF after 20 years in 1985. I was married from 1970 to 1983. My ex wife waived alimony in the divorce decree. There was no property settlement mentioned. She remarried in 1992 and divorecd her new husband in 2002. She now claims that she is entitled to %50 of my retirement. Is there a statute of limitations on how long after retirement or a divorce that she can try and get a court order amended to include my retirement pay?

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Miranda
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Re: Ex wants part of retirement pay after 24 years. [Re: VpokerL1]
      #518454 - 03/29/09 12:12 PM

Hmmm well I would say she is out of luck. What state were you divorced in? She really has no basis after 24 years to attempt to reopen a decree (but it has been done in rare instances). She would not get 50% of your retirement anyway after only 13 years of marriage, also that amount would be reduced if you have any sort of disability rating.

Why are you in contact with her and has she made a motion regarding this in court?

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13.1...because I am only half crazy!


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Redlegg
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Re: Ex wants part of retirement pay after 24 years. [Re: Miranda]
      #518521 - 03/29/09 10:14 PM

Are you saying that the division of retirement was not addressed at all, and there was no property settlement?

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Redlegg
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Re: Ex wants part of retirement pay after 24 years. [Re: Redlegg]
      #518522 - 03/29/09 10:28 PM

Post-USFSPA Decrees That Did Not Mention Military Retirement Benefits. Even in the years following the enactment of the USFSPA, some spouses of military service members have not bargained for or received a share of military retirement benefits in their divorce proceedings. In cases where these former spouses have sought to reopen a divorce decree to obtain a share of military retirement benefits, they have not fared very well. See, e.g., DePalantino v. DePalantino, 139 N.H. 522, 658 A.2d 1207 (1995) (error to reopen 1989 divorce decree for distribution of military pension, where both parties knew about pension at time of divorce); Martin v. Martin, 656 So. 2d 846 (Ala. Civ. App. 1995) (trial court lacked jurisdiction to modify 1990 divorce decree which did not mention military retirement benefits, despite intervening change in law permitting division of such benefits).

A recent example is In re Marriage of Campbell, 151 Or. App. 334, 948 P.2d 765 (1997). The wife succeeded in convincing a trial court to amend the parties' divorce judgment on the ground that the judgment, by inadvertence or omission, did not award her a one-half interest in the husband's military pension. The Oregon appeals court held that the trial court lacked inherent authority to modify the judgment given the absence of extraordinary circumstances such as extrinsic fraud, duress, breach of fiduciary duty, or gross inequity. The husband's military pension was considered at the time of the original judgment in the context of making a spousal support award, the court also noted.

Other Final Decrees. Mistakes and unforeseen circumstances have led many former spouses to attempt to modify a final decree involving military retirement benefits. In recent cases, these attempts have generally not succeeded. See, e.g., Cox v. Cox, 707 A.2d 1297 (D.C. 1998); Thomas v. Abel, 688 N.E.2d 197 (Ind. Ct. App. 1997).

In Cox v. Cox, the District of Columbia Court of Appeals held that a wife's unawareness of how to secure her share of the husband's military pension benefits did not warrant modification of the parties' divorce decree more than one year after it was entered. The parties' separation agreement provided that the wife could exercise her right in the husband's military pay as provided by regulations, but it did not specify an amount, expressed in dollars or as a percentage of disposable retired pay, as required by the pertinent regulations. That oversight was simply a mistake and could not be the basis for amending the divorce decree more than one year after its entry, the court held.

In Thomas v. Abel, the Indiana Court of Appeals held that a husband's obligation under a separation agreement to pay the wife one-third of his monthly military retirement pay when he attained the age of 60 was not modifiable based upon a change of circumstances. After examining the specific language of the agreement, the court decided that the one-third payment constituted maintenance rather than a property settlement, but that the obligation was nonmodifiable under Indiana law because it originated in a settlement agreement.


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Redlegg
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Re: Ex wants part of retirement pay after 24 years. [Re: Redlegg]
      #518524 - 03/29/09 10:35 PM

I think one problem that may occur is that there is no property settlement, If I am reading that right. What I am thinking is that the only issue she has is can she go for a property settlement now, only because there never was one. I really would imagine that the only "marital" proeprty still existing is the retirement. If she is able to go forward to get a final property settlement, then she could get a percentage. You need to talk to a lawyer yesterday.

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Miranda
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Re: Ex wants part of retirement pay after 24 years. [Re: Redlegg]
      #518736 - 03/30/09 07:17 PM

Most states have statutes regarding the time to argue property settlements.

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13.1...because I am only half crazy!


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