Legal Question in Military Law in Missouri

Spousal rights of military personel

I married my husband who was in the Army in 1995.He ritired in Mar. of 2001. In July of the same year, I was given no choice but to file an ex-parte against him, and file for divorce. After over 2 long years & one other court date a year ago Mar. we finally have a court date of 9/22, this month. In the beginning my lawyer said we would ask for part of his retirement pay, but then told me he doughts I would recieve anything because we were married under 10 yrs. so after filling out anouther paper on what I wanted in the divorce, I left out wanting anything from his retirement pay. Now, my brother, who is a CWO 5 and has been in the Army for 22 yrs. & also married and divorced, says that s totally wrong. That federal law says you only have to be married 1 yr.and the spouce can be entittled to 50% ( prorated )of his pay (active) or retirement pay. I brought 1 child into the marriage,he was 3, but my husband never adopted him, and he had 1 child living with his ex and paying child support to through out. The grounds for divorce are spousal abuse. Which way is it, and is it too late to tell my lawyer to ask for it say in court?


Asked on 9/13/03, 7:32 pm

2 Answers from Attorneys
Anthony DeWitt Bartimus, Frickleton Robertson & Gorny, PC

Re: Spousal rights of military personel

Generally speaking, you are not entitled to fifty percent of his retirement pay, unless you were married to him during the ENTIRE time he was in the military. Instead, you may have an entitlement to retirement pay for the six years you were with him.

Many times lawyers do a bad job of explaining things. Judges are given the discretion to decide cases based on the evidence and their view of justice. Often times a lawyer will look generally at the equities and decide that its better to give up one thing to get another. For example, he might decide that it was better to give up the retirement pay, in order to receive a larger share of the property. It is a give and get world in the divorce area.

Moreover, it is probably unfair to the lawyer to ask other lawyers to comment on his strategy and advice without disclosing all the relevant facts (including any potential fault on your side) and other considerations that may be part of his professional judgment in your case.

As a general rule, if you think your lawyer is doing a bad job, you can fire him and hire someone else. But unless he is doing a bad job, then it is best to put your trust into him, and listen to his advice.

Good luck

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Answered on 9/15/03, 6:12 am
Philip D. Cave Military Law & Justice

Re: Spousal rights of military personel

1. Entitlement to a portion of retired pay is based on state law.

2. Have your attorney review the information at this website http://www.jag.navy.mil/documents/ArticleFormer%20Spouses%20Protection%20Act%20(1%20MAY%2001)1.doc.

If your attorney types in "uniform former spouses protection act" as a Google search term you will find a lot of information about the UFSPA.

3. Your attorney should be familiar with the Uniform Former SPouses Protection Act. entitlement to a portion of retired pay is not automatic.

Sincerely.

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Answered on 9/13/03, 8:17 pm


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