Retirement

[justme73]

Hi Soc!  Hope you had a great vacation!

My ex and I were married in Florida in 1971, divorced in Georgia in 1998.  

He started working for a company in 1970, just before we were married and was laid-off in 1988 when the company was bought by Georgia Pacific.

This was just short of his 20 years and they did not give him his retirement.

I have just learned that in 2003 he filed a lawsuit against GP for the retirement and received a $40K settlement.

1. souldn't i be entitled to half of this settlement?

2. would i need an attorney to file a lawsuit against my ex for half? or could i do it pro se?

3. how would i file this? is it small claims?

4. i believe this lawsuit was done in brunswick, ga. do i need to go to the courthouse there to obtain a copy of the record?

thank you

[socrateaser]

>Hi Soc!  Hope you had a great vacation!
>
>My ex and I were married in Florida in 1971, divorced in
>Georgia in 1998.  
>
>He started working for a company in 1970, just before we were
>married and was laid-off in 1988 when the company was bought
>by Georgia Pacific.
>
>This was just short of his 20 years and they did not give him
>his retirement.
>
>I have just learned that in 2003 he filed a lawsuit against GP
>for the retirement and received a $40K settlement.
>
>1. souldn't i be entitled to half of this settlement?

Not nearly enough facts or law to conclude either way.

First, GA law will control your rights, because that's where you were divorced.

Second, GA is a separate property jurisdiction, which means, that in the absence of GA statute or caselaw creating a right to a portion of your ex's retirement, those benefits are his separate property because he earned them separately. However, a court could find that based on the actual final judgment of your dissolution, that it would be unfair for your ex to retain the entire settlement award, because of your equitable contributions to the marital estate made during the marriage.

Third, depending on GA law, a final judgment of dissolution very likely may only be set aside for a set period of time, and since your judgment was made in 1998, it's possible (and I'll wager almost certain) that your judgment is too old to be set aside, UNLESS you can show that your ex knew at the time judgment was entered (and that you had no way of knowing), that he was entitled to the pension benefits, but that he intentionally refrained from suing for them.

This would be pretty tough to prove, I suspect.

Fourth, if you entered into an agreed/stipulated judgment, and you knew at that time, that there was a pension potentially available, and you did not attempt to make the contingency of your ex recovering part of that pension a condition of your settlement, then you impliedly waived your right to any future benefits, by not providing for the possibility in your agreement.

Your ex could argue that part of the consideration for his agreeing to the settlement was that there was a known possibility that he might one day recover the pension, and that both of you knew of the possibility, and that this was part consideration for the agreement, i.e., he got the possible future benefit free and clear, and you got whatever you received under the agreement, that you might not have received but for your giving up any rights to this pension benefit.

As you can see, this is not a simple case.

>
>2. would i need an attorney to file a lawsuit against my ex
>for half? or could i do it pro se?

You can do it yourself, but it would be extremely complex for a pro se litigant, and I wouldn't advise it.

>
>3. how would i file this? is it small claims?

Generally, small claims recovery is limited to about $3,000-5,000 recovery, depending on the State (I don't know GA law specifics here). But, if you're looking for one half of $40K, you absolutely can't get it from a small claims action.

As for what you would actually allege in your complaint, I don't have near enough info (or knowledge of GA law) to tell you how to write your complaint. If you want me to research it, I'll have to charge you, and it will not be cheap. You will be better off with a GA attorney.

>
>4. i believe this lawsuit was done in brunswick, ga. do i need
>to go to the courthouse there to obtain a copy of the record?

If you intend to sue, then you should have a copy of the case file, or at least the initial complaint, any amended complaints, and the final judgment. You could find out from the clerk how much a copy would cost you, and then send the money with a stamped return envelope. If the file is thick, you could end up spending a couple hundred dollars to have the copy made.