Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, April 19, 1993 TAG: 9304170017
SECTION: BUSINESS PAGE: A-6 EDITION: METRO
SOURCE: Mag Poff
DATELINE: LENGTH: Long
My ex-spouse had my pay garnisheed, and I started paying her half of my retirement pay. The first payment was in June 1983. I paid child support prior to this date. We both remarried in the 1970s.
I have been working for the government as a civilian since 1986. I am eligible for Civil Service retirement in June 1993. The government does not let one draw two checks, so they have to be combined. I am reluctant to retire as she will get half of my Civil Service retirement. She also gets half of my cost-of-living raises, which is unfair.
Can a lawyer get a court order to prevent her from getting my Civil Service retirement? Maybe some of the folks in Washington will read this and think, as I do, that the law needs amendments to make it fair for both sides.
A: You should see a lawyer because your situation is complex. Some of your problems may stem from court orders, not the federal law. The outcome would depend on the circumstances of court orders in your divorce case.
Cheryl Watson Smith, a specialist in divorce and family law with the Roanoke law firm of Mundy, Rogers & Frith, said the act permits - but doesn't require - state courts to treat military retirement pay as marital property at divorce. It was enacted to overturn a court decision to the contrary. The law also allows a share of military retirement pay to be negotiated as part of a property settlement agreement.
Smith assumed you are subject to such an order because the government may give a former spouse a portion of retirement pay only pursuant to a court order.
Yet she pointed out this may be an incorrect assumption because your court order must have been entered prior to the 1982 adoption of the act if you remarried in the 1970s.
Smith advised that your first step, therefore, is to verify whether your court order complies with requirements of the act. If it does not comply, your spouse may not be able to enforce it. This is also true, she said, of orders made before June 26, 1981, and later amended to provide for a division of retirement pay as property.
The requirements are quite specific, Smith said.
To treat military retirement pay as marital property, the state court must have special jurisdiction, which means you lived (or were domiciled) in that state or consented to the court's jurisdiction.
Before the government can pay a former spouse directly, Smith said, the order must contain your name, state whether the right to retirement pay is for support or is part of a property division, and specify the amount and length of time payments are to be made.
Most importantly, she said, the marriage had to last at least 10 years during active duty service. If the marriage was shorter, the payments would be direct from you.
The government must make payments according to terms of the court order. Orders can specify a percentage, state a specific dollar amount or set a formula to determine the ex-spouse share. In the first two cases, Smith said, the spouse will receive cost-of-living adjustments, so a poorly drafted order can result in a windfall to the former spouse. That may be one reason why she gets half of your retirement pay.
Another factor, Smith said, is the law of the state which entered the court order.
Virginia allows retirement funds earned during the marriage to be treated as marital property and divided up to 50 percent at divorce.
Under current Virginia law, she said, the court could not order a one-half division of your entire retirement pay benefit. The court can divide only the marital share.
Because you divorced 20 years ago and continued to serve in the military, your former wife is receiving a portion of property earned many years after the marriage. However, Smith said, you could have agreed to such a division in a property settlement.
Smith pointed out that if you worked for Civil Service long enough for a civilian pension, you may be able to give up military retirement permanently for a Civil Service pension covering all years. This could cut off your former wife if the court order provides she is to receive a share of military retirement. But this would be prohibited if the order covers a civilian pension or all retirement. If that's the case, you might not be able to protect your Civil Service retirement.
Based on the facts you present, Smith said, this would be inequitable. She suggested that you consider reinstating your case and asking the court to interpret the order or settlement to determine if it requires such a result.
In Virginia, the court could not modify an order that determines property rights, she said, but a court might apply equitable principals to correct an inequitable result.
Smith said your use of the word garnishment suggests your ex-spouse attached pay to enforce a division of property or support obligation. Garnishments can be renewed until the judgment or support obligations are satisfied, but then terminates. It's not usually applied to retirement payments. If your former wife had a true garnishment, Smith said, it's possible your pension was never divided and she obtained it for support.
Mag Poff will help find answers to your personal finance questions. Send them to her at the Roanoke Times & World-News, P.O. Box 2491, Roanoke 24010.
by CNB