military retirment

[wldcherry1]

Bob is in the military.  Bob and Betty were married for 9 years and 2 months and divorced Aug 2000 in Texas.  The marriage overlapped the military service.  When Bob and Betty divorced the court awarded Betty 27.38% of Bob's military retirement. Decree states "All right, title and interest in and to 27.38% percent of the United States Army disposable pay to be paid as a result of Bob's service in the United States Army, and 27.38% percent of all increases in the United States Army disposable retired pay due to cost of living or other reasons, if, as, and when received"

Bob was an E-7 when they divorced.  Bob has since been promoted to E-8 and will do more than 20 years in the service.  Bob is not retired at this time.

Betty claims she is entitled to 27.38% of the entire retirement, to include promotions and service beyond 20 years.

Bob claims Betty is only entitled to 27.38% of what he would have been paid if he retired as an E-7 with 20 years.  Bob claims that any service and pay raises after the divorce are his sole and separate property.

It is against Texas law to award the one party the sole and separate property of the other party in a divorce.

1.  Who has the stronger claim Bob or Betty?

2.  Is a clarification order needed?

3.  Should Bob pay Betty the amount he feels correct and make Betty take him to court if she disagrees and ask for a clarification order then?

4.  Should Bob just wait for Betty to take him to court to force him to pay period and ask for the clarification order then?

thanks

[mudbunnies]

from another military ex-wife;

"and 27.38% percent of all increases in the United States Army disposable retired pay due to cost of living or other reasons, if, as, and when received"

part of your answer may lie right in this sentence wherein it states or other reasons, if his retirement pay increased for other reasons your entitled..

however, knowing DFAS, they will require you to file the court order /QDRO / whichever one you have and they will review it and make their own determination, then they send the military member a letter stating their findings and he has 30 days to PROVE otherwise

most of the time they stand on their findings because its their interpretation of the court order.

he would have to provide a more current order to change them

you can go to the DFAS website or contact them, get the necessary forms to file along with a CERTIFIED copy (within like 60 days) of your court order and file it with them, I did this 6 months prior to his retirement so the day he started receiving retirement pay they were all ready making my deduction.

start early, with the military, its a very good thing. they are slow.

[socrateaser]

>1.  Who has the stronger claim Bob or Betty?

Depends on whether the judgment can be set aside as against public policy now. Despite the fact that the order probably should have been worded to award only the derivative portion of the retirement earned during the marriage, it was not, therefore Betty is apparently entitled to a portion of all of the retirement, regardless of when earned.

If the judgment was "agreed to" by the parties, rather than only ordered by the court, that would make Betty the winner, because Bob agreed to the wording. If not, then Bob might have a case that the court overstepped its authority, but only if TX law provides a means of overturning a final judgment on grounds of illegality, and the time limit for filing a motion to set aside has not yet passed.

>2.  Is a clarification order needed?

No, an order to set aside, and a new final judgment is needed.

>3.  Should Bob pay Betty the amount he feels correct and make
>Betty take him to court if she disagrees and ask for a
>clarification order then?

Only if you think Betty won't file for contempt.

>4.  Should Bob just wait for Betty to take him to court to
>force him to pay period and ask for the clarification order
>then?

See #3.

[wldcherry1]

The divorce decree on file is not signed by either party.  Only the judge and respective attorneys signed the decree.

1.. Does this mean that the parties did not agree to the judgement and it had to be ordered by the court?

2.  If orderd by the judge does this mean that he overstepped his authority by awarding Betty a portion of Bob's seperate property?

TX law states (b) A suit to enforce the division of future property not in existence at the time of the original decree must be filed before the second anniversary of the date the right to the property matures or accrues or the decree becomes final, whichever date is later, or the suit is barred.

1.  If neither Bob nor Betty do anything from two years after Bob's retirement date does that mean that Betty forfits her claim on Bob's retirment?

2.  If Betty files for contempt agains Bob for non payment (or not paying what she thinks is owed) is that when Bob should counterfile for a motion to set aside and obtain a new judgement?

Thanks again