retirement division

[wldcherry1]

Bob and Sally divorced in TX after 9 years 2 months of marriage.  Bob is getting ready to retire from the Military.  Sally was awarded "all right and title and interest in and to 27.38% percent of the United States Army disposable retired 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."

In Reiss v. Reiss parties were divorced before husband retired.  Wife was awarded 50% of retirement benefits.  Husband worked 14 more years after the divorce.  Upon retirement Wife claimed she was entitled to 50% of entire retirement.  TX Supreme Court ruled that the original divorce decree divided only the community property of the couple.  Therefore wife was only entitled to 50% of the community portion of the retirement and not the entire retirement.

TX Supreme Court ruled that a divorce court lacks the power to divest a spouse of separate property.  It was ruled that there was a principal defect in the order before the court.  The court can not award to wife 50% of that portion of husband's retirement benefits that were earned after they were divorced.

At the time Bob retired he was an E-7 and had 18 years in the military.  Military retired pay can be awarded at 20 years.  If Bob had retired as an E-7 with 20 years his retirement pay would be worth $1500.  Bob went on to do 23 years and has been promoted to E-8.  His retirement is now worth $2000.


Situation one
If we go by the Supreme Courts decision then Sally is only entitled to 27.38% of the marital portion of Bob's retirement if he would have retired at the rank he was at the divorce and at the first opportunity he was qualified for retirement.  In this scenario the marital portion of the retirement is 45%.  Sally is entitled to 27.38% of that making her award $184.81.

Situation 2
Of course Sally does not agree and feels she is entitled to 27.38% of $2000.  In this case her award would be $246.42

Situation 3

If we divide the number of months married by the number of months crediable for retired pay we get a marital portion of 45%.  If we then divide that portion by 50% we end up with 22%

So in theory Sally was awarded more than her share of the marital portion of the retirement benefits.


Question
1.  Is Situation one correct?

2.  In situation two Sally takes Bob to court could he use Reiss v. Reiss for a clarification order?

3.  In situation three should Sally take Bob back to court and or Bob ask for a clarification can Bob claim that Sally was awarded more than her portion of the retirement benefits and thereby divesting Bob of part of his sole and seperate property?

[socrateaser]

>Question
>1.  Is Situation one correct?

Assuming that the Reiss decision is current law, then yes.

>
>2.  In situation two Sally takes Bob to court could he use
>Reiss v. Reiss for a clarification order?

See #1, above.

>
>3.  In situation three should Sally take Bob back to court and
>or Bob ask for a clarification can Bob claim that Sally was
>awarded more than her portion of the retirement benefits and
>thereby divesting Bob of part of his sole and seperate
>property?

Two issues, not appearing in your facts come to mind:

1. Stipulated Judgment. If the original property judgment was stipulated to, then you cannot appeal it -- parties may not appeal an agreed order, although they can sue their lawyer for malpractice. Your facts don't disclose whether the matter was stipulated, therefore I can't comment.

2. Finality of Judgment Doctrine. If the judgment is beyond the limiting time for an appeal or reconsideration, then you may not have it set aside, except upon proof of illegality, fraud, duress unfair surprise (in the case of a default judgment).

You have been posting based on these general facts for a very long time, therefore I suspect that you are far beyond the point for a set aside. Whether the court would find that its prior judgment was sufficiently against public policy to be deemed illegal would depend on the judge.

On the separate issue of clarification, the judgment text seems to be pretty clear on its face. I don't know that a court will treat this as a clarification -- it may, in order to avoid the other competing doctrines, depending upon the sophistication of your opponent and/or her attorney.

[wldcherry1]

SOC

I hope you do not mind me picking your brain.  I am sure it is obvious by the tone of my posts that I do not agree with dividing military retirement.  

If by doing my research, looking at the situation at ever conceiveable angle and getting feedback from people such as yourself I can help one service member then I feel I have done something importatnt.

Thanks to your help I have helped this service member go from having to pay over 400 to under 200 just by research and your help in understanding the law.

I guess whether or not it was a viable order and whether you undertood the law at the time is not as an important  factor as the time limit for arguing.  After all that is why you hired a lawyer and if the order is faulty your only recourse is to sue the lawyer?

However in Reiss v. Reiss the wife filed 14 years after the divorce and was shot down so maybe there is hope yet.

[socrateaser]

The object of an agreed judgment is that the parties agree to a final settlement of the issues, and the court reviews it and makes is permanent.

People can agree to bind themselves in all sorts of ways that are more restrictive than law.

Ultimately, you go to a lawyer for expert advice and representation, and if he/she fails to give it to you, then your complaint is with that lawyer, not the other party or the court system.

Obviously, if the judge in the case really did his homework, and carefully reviewed the order, he could have asked if this is what the party's really wanted. But, it's possible that this is what the parties wanted -- perhaps some other part of the property division was more in the husband's favor at the time of the judgment, and the retirement was an offset for this.

Probably not, but one never knows for sure.

Now, I have a question for you: Are these hypotheticals that you ask me all related to the same person, or are they different people?

[wldcherry1]

Soc

I would say that one person is my inspiration.  I know so many people where this is a factor that when I have free time I try to look at it from many different angles.  When I think I have something I come to you to make sure I am not shooting in the dark.  I do my best to make sure that people look up the real rules and not go by what they hear or think is the truth.

Thanks for all your help