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Amending my divorce decree and what state would I need to file.

La Mirada, CA |

Hello - I'm a retired 23 year old military veteran. I divorced my wife over 20 years ago. She was having an affair. Under USFSPA she receives 50% of my retirement pay, my only income. I cannot get assistance because my income is too high, but can bearly feed myself because first wife receives half of my income and my second wife receives child support. The first wife has remarried and I would like to amend my divorce decree. Is it possible and where do I need to file? We divorced in VA. I live now live in CA and she lives in FL.

Attorney Answers 3


The retirement is martial property--it will not be affected by her remarriage. VA has 'continuing jurisdiction' over the divorce and you can file there and change venue to CA. Speak with a CA family law attorney before you take any steps to file in VA as filing and amending as you plan may be a fruitless effort.

READ THIS BEFORE CALLING OR EMAILING ME: I am licensed to practice before the state and federal courts in Virginia. We have not established an attorney-client relationship unless we have a signed representation agreement and you have paid me. I am providing educational instruction only--not legal advice. You should speak with an attorney to whom you have provided all the facts, before you take steps that may impact your legal rights. I am not obligated to answer subsequent emails or phone calls unless you have hired me. I wish you the best of luck with your situation.

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Accord with Mr. Rafter's response. You won't be able to get a modification of the property division order - your wife was and remains entitled to her interest in your retirement pay, not as Spousal Support (which would be modifiable on a material change of circumstances), but as her share of the community property retirement. Whereas her remarriage would terminate your ex-wife's Spousal Support right, her remarriage does not affect her right to her share of community property.

Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship.

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Unfortunately, it does not look like it is possible to amend the property division of the divorce decree. Your military retirement is divisible to your ex-spouse, as per the USFSPA. However, let's look at some issues:

1) You stated that you divorced your wife over twenty years ago. If a member is divorced while on active duty, the requirements of the Servicemembers Civil Relief Act (SCRA) must be met before an award dividing military retired pay can be enforced under the USFSPA. The provision of the SCRA that has primary application to the USFSPA and the division of military retired pay is the section concerning default judgments against active duty service members. A member has 90 days after separation from active duty service to apply to a court rendering a judgment to re-open a case on SCRA grounds. Thus, this provision of the SCRA does not apply to a member with an active duty divorce where the member has been retired for more than 90 days.

2) Was jurisdiction proper? The USFSPA contains its own jurisdictional requirement for the division of retired pay as property (found in 10 U.S.C. § 1408(c)(4)). If it is not met, the former spouse’s application for direct payment of retired pay as property under the USFSPA will be rejected. For a court to have the authority to divide military retired pay, the USFSPA requires that the court have “(c)(4)” jurisdiction over the military member in one of three ways. One way is for the member to consent to the jurisdiction of the court. The member indicates his or her consent to the court’s jurisdiction by taking some affirmative action with regard to the legal proceeding, such as filing any pleading in the case. Simply receiving notice of filing of the divorce complaint or petition is not sufficient. Consent is the most common way for a court to have (c)(4) jurisdiction over a member. The other ways for the court to have (c)(4) jurisdiction is for the member to be a resident of the State at the time of divorce other than because of his or her military assignment, or for the court to find that the member was domiciled in the particular State at the time of the divorce. Now, the key with regard to domicile is that the court makes this determination, and it should be noted in the divorce decree. Since it's been over 20 years, we probably can safely assume that jurisdiction has been met because your wife's retirement pay has been on going and DFAS would have needed a certified copy of the divorce decree.

3) Do you have any service related disabilities? Disposable retired pay is gross retired pay less authorized deductions. The authorized deductions depend on the effective date of the parties’ divorce, dissolution, etc. If the date was on or after February 3, 1991, you could deduct the amount of retired pay waived in order to receive compensation under Title 5 (federal civilian employment) or Title 38 (Department of Veterans Affairs) of the United States Code. VA disability is not divisible as a percentage of military retirement. You must consult with the VA to be able to waive retirement pay in favor of disability pay (if you even rate it). However, VA disability would be divisible to your second wife's child support payments.

4) If your former spouse dies, retirement payments to her will stop. Former spouse payments cannot be passed on to a third party such as a beneficiary under a will when a former spouse dies. Once former spouse payments stop, those funds will revert back to your pay.

5) The prognosis doesn't look good, but you should consult with an attorney in your area just to make sure all avenues have been exhausted.

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