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Do I have to reimburse my ex for her community share of the military retirement pay that she did not get while I received it?

Santa Rosa, CA |

I got divorced and my wife received 1/2 of my military pension. she submitted her application to DFAS but had to amend it a couple of times for wording before she was able to receive her payments. Now she wants me to pay her what she missed out on? Is there any law out there that I am responsible for this. I did not do anything to delay her payments? Thanks you.

Attorney Answers 3

Posted

You need to pay her. Typically it takes DFAS several months to process state court orders. In the meantime, the member is responsible for paying whatever the court awarded. There's no penalty for getting the DFAS paperwork wrong. Your state court order governs the property settlement, including your military retirement pay. The only thing Federal law does is provide a mechanism for divisions of military retirement to be paid directly to a former spouse. Whether DFAS pays or not does not alleviate your responsibility under the state court order. She is entitled to whatever share ordered by the court from and after the effective date of the order. If you don't feel this is fair, you can go back to the state court with jurisdiction to request a modification. However, property division in most states is not modifiable absent proof of fraud or misrepresentation.

Law Office of Stephen P. Kelly (508) 983-1479--Criminal Defense, Military Law, Divorce & Family Law, Appeals. DISCLAIMER: Answers to posted questions are for general interest only and do not constitute legal advice. No attorney-client relationship is established by virtue of any answer posted by the attorney.

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Asker

Posted

Thank you for the answer. But she could have submitted all her papers years back after the judgment and had it ready to go when I retire. Now I owe all this money and have to pay it back...if she had all ready in time when I retired I wouldn't need to worry about this. Also how could I have known what her part of my retirement would have been before it was given to her from my pay? This seems really unfair....

Stephen P. Kelly

Stephen P. Kelly

Posted

The requirement was spelled out in the court order, so you must have known about it. If it's been a significant amount of time, then you might consult a family law attorney in your area to see if there is some way to argue that by not acting to obtain her share upon your retirement, she waived her right to the funds in arrears.

Philip Douglas Cave

Philip Douglas Cave

Posted

In effect you owed money from the date set out or based on the court order. Money that DFAS takes and gives is set-oof against what you owe each month. THere are times when a spouse fails to provide the proper documentation and DFAS will not always enforce the order. However, that doesn't set aside the underlying obligation to pay. As you knew money would be owed at some point, and it was taken out because of DFAS delays, and you got the money, then it would have been better to set it aside and not spend it.

Posted

Yes. You must comply with the court order without regard for what DFAS does or doesn't do. DFAS and the court are unrelated entities.

NOT LEGAL ADVICE. FOR EDUCATION AND INFORMATION ONLY. Mr. Rafter is licensed to practice in the Commonwealth of Virginia and the US Federal Courts in Virginia. There is no implied or actual attorney-client relationship arising from this education exchange. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Rafter is under no obligation to answer subsequent emails or phone calls related to this matter.

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Posted

I agree with the advice of my colleagues. You must comply with the court order. Best of luck.

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