Military Divorcees Aim to End Lifetime Alimony Rules

Pressure is growing among advocacy groups to revise a military divorce law that can grant ex-spouses of U.S. warriors up to half of their retirement pay right up to death.

Several states are moving to no longer award lifetime alimony or exempt a portion of their own retirement funds from division. As such military members are objecting to a federal law that allows for what amounts to lifetime alimony that does not stop even if the former spouse remarries or goes on to a more successful career.
The 1982 Uniformed Services Former Spouses Protection Act (USFSPA) provides states with the authority to treat non-disability military retirement pay as property and can divide it by up to 50 percent when married couples separate.

Opponents of the law say they shouldn’t be automatically forced to forfeit to their ex-spouse in perpetuity a sizeable amount of their retirement benefits earned over a 20-year career serving in harm’s way.

They say their retirement pay is not only compensation for the rigors of military service, but for their continuing obligations to their country. Military retirement is not a full retirement, they point out, but a reserve status that amounts to less pay for fewer services. They note that few other federal employees are subject to the military’s laws related to divorce, not even the members of Congress who wrote and passed the bill.

“We just don’t think the military should have special rules against it that don’t apply to others,” Larry White, national director of the USFSPA Liberation Support Group based in San Antonio, Texas, tells Newsmax.

Supporters of the law feel entitled to a share of the benefits because they have contributed significantly to the partnership, sacrificing some of their most productive years to frequently relocate and support their spouse’s advancement.

“A lot of people, civilian and military, feel they have been treated unfairly in the divorce process. That’s not new,” Diane Mazur, a law professor with the University of Florida, tells Newsmax. “The military angle puts a different spin on things because both sides have an extra reason to think they’ve been wronged, or an extra reason to think they deserve special treatment.

“The military member: ‘I put my life on the line, so that money is mine.’ The spouse: ‘I gave my life to the military too, sometimes under difficult circumstances, and so I’ve earned part of that pension. It’s not fair for me to have to start out with nothing.’

“A military pension attracts a lot of attention because usually that will be the asset of greatest value, by far,” Mazur said.

Congress passed the USFSPA in 1982 to reverse a 1981 Supreme Court decision that upheld a ban on dividing military retirement pay in divorce settlements, as has been traditionally allowed with civilian defined benefit plans such as 401ks or IRAs.

Under the law, the spouse of an officer who was married during the entire 20 years of service would be entitled to half those benefits. If the marriage overlapped the time of service by 10 years, the spouse would be entitled to a share of the benefits accrued over those 10 years.

Frustrating opponents is that there no minimum time limit of time for a couple to be married before a spouse qualifies for a portion of the benefits.

Critics of the law concede that it has historically been necessary. Advancing a spouse’s military career left them to almost single-handedly raise their children, look after the house, attend events and participate in any number of social obligations.

Once the marriage ended, they were left with no education or skills that would enable them to immediately rejoin the workforce.

However, in recent years they are able to earn degrees while married to a service member, work full- or part-time jobs to contribute to their own retirement and create a life of their own outside of their marriage.

“The current retirement system has been around since the 1940s, but the world has changed dramatically since the 1940s,” Military Officers Association of America Deputy Director of Government Relations Phil Odom tells Newsmax.

Similar to civilian settlements, separating military couples can negotiate any number of arrangements depending upon the state where the settlement is reached, including child custody and visitation, alimony, and the distribution of retirement benefits, says John Carney, a Dallas-based lawyer whose firm represents spouses in military divorce settlements.

Spouses can accept a lump sum payment instead of a lifetime of retirement pay benefits. They can negotiate a 401k or IRA in lieu of alimony. They can split custody of their children in exchange for a combination of concessions. Military retirement pay is often distributed according to a formula, but there is a no requirement.

Carney said that’s why it’s important to identify lawyers who can navigate between the “awkward combination between state and federal law.”

“As far as divorce, as long as the parties agree to something, that’s what it’s going to be,” he tells Newsmax. “You’re always welcome to go to court and try to prove your case. But there is a reality, and it is my job to help them determine what that reality is.”

© 2015 Newsmax. All rights reserved.

Article Source: David Yonkman, Newsmax Washington Correspondent   |   Monday, 18 Feb 2013 02:20 PM

 

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South Carolina Alimony and Spousal Support Laws

Under South Carolina law, the parties to a divorce may seek support payments also called alimony if there is a disparity between the parties’ earning abilities and the interests of justice make it necessary. The court will decide alimony necessity on a case-by-case basis.

Types of Spousal Support

  • Temporary – a court may award for the time between filing for divorce and final disposition.
  • Short-Term – a court may award to allow one party to gain employability, care for children or for some other reason if the court determines it just.
  • Long-Term or Permanent – a court may award, especially in the case of lengthy marriages, as the court determines just.

Who is Eligible for Alimony in South Carolina

Either party to a South Carolina divorce may seek spousal support. The court will look at the situation of the parties, their contributions during marriage, their income and other factors listed below to decide whether support is needed.

South Carolina Alimony Guidelines (Factors for Awarding Alimony)

In making an award of support, the court must consider all of the following factors:

  • Duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties;
  • Physical and emotional condition of each spouse;
  • Educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse’s income potential;
  • Employment history and earning potential of each spouse;
  • Standard of living established during the marriage;
  • Current and reasonably anticipated earnings of both spouses;
  • Current and reasonably anticipated expenses and needs of both spouses;
  • Marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;
  • Custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;
  • Marital misconduct or fault of either or both parties,
  • Tax consequences;
  • Existing support obligations of either party; and
  • Any other factors the court considers relevant.

Reasons for Termination or Modification of Alimony in South Carolina

Whenever the circumstances of the parties or the financial ability of the spouse making the payments changes, either party may apply to the court for an order decreasing or increasing the amount of alimony payments or terminating payments. The court is required to listen to both parties regarding any modification.

Marital Fault in South Carolina

South Carolina allows the following grounds for divorce:

  • Adultery;
  • Desertion for a period of one year;
  • Physical cruelty;
  • Habitual drunkenness; provided, including habitual drunkenness caused by the use of any narcotic drug; or
  • On the application of either party when the husband and wife have lived separate and apart without cohabitation for a period of one year.

How Long Does Spousal Support Last in South Carolina?

Alimony may be awarded for a short period, long period, permanently, or in a lump sum payment upon dissolution. The court will hear the parties’ evidence and decide duration of support based on what it determines to be fair.

South Carolina Alimony Taxes

The spouse receiving alimony must claim payments as income if it is mandated by court order. The paying spouse may deduct the alimony on federal tax returns. Discuss the tax implications of your decree with an experienced South Carolina attorney.

Article Source: Divorcelawfirms.com

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Divorce, Social Security, and Military Retirement

Divorce, Social Security, and Military Retirement

Q: I am a retiree with 23 years [mil­i­tary] ser­vice. After I retired I went through a divorce. I was mar­ried 20 years. My ex-wife gets 35 per­cent of my retired pay and I also agreed to con­tinue SBP cov­er­age for her. I have since remar­ried (2 years). My questions: 1. If my ex-wife pre­de­ceases me will I be able to name my cur­rent wife as the ben­e­fi­ciary on the SBP?

2. Related to the first ques­tion, if my ex pre­de­ceases me can she in her “will,” will the 35 per­cent retired pay to some­one else as “prop­erty” or does it revert back to me?

3. In regards to my social secu­rity ben­e­fits, if I pre­de­cease my ex and cur­rent wife, who can make a claim against my Social Secu­rity ben­e­fits? I have no depen­dant children.

–Car­los, Hud­son, N. H.

A: Well, you’ve got some great, fairly tech­ni­cal ques­tions. And I love it that you’re think­ing through things so you may plan bet­ter. This finan­cial plan­ner likes that! The source for these types of ques­tions is Defense Finance and Account­ing Ser­vice (DFAS). The DFAS Fre­quently Asked Ques­tions on SBP runs through sev­eral sce­nar­ios for you. Here’s my understanding:

1. You may be able to change your SBP cov­er­age to your cur­rent wife right now, but only if you vol­un­tar­ily pro­vide SBP cov­er­age for her. It could not have been required by a court order or divorce decree to pro­vide “for­mer spouse cov­er­age.” So if you set up for­mer spouse cov­er­age vol­un­tar­ily, you just need to con­tact DFAS in writ­ing and change the cov­er­age to your new wife. Oth­er­wise, if your for­mer spouse pre­de­ceases you, you could switch cov­er­age to your new wife using Form 2656–6.

2. Despite retired pay being treated as mar­i­tal prop­erty dur­ing the divorce pro­ceed­ings, your ex-spouse’s right to pay­ments ter­mi­nates at her death…in other words, she can­not pass that pen­sion on to some­one else.

3. Finally, when it comes to Social Secu­rity, your ex-wife should be eli­gi­ble to receive ben­e­fits as a divorced spouse based on your earn­ings record. To qual­ify your mar­riage to your ex had to have lasted 10 years (check) and she must remain unmar­ried (don’t know about that one). But the good news is that your cur­rent spouse should also be able to col­lect Social Secu­rity on your record, too, as long as you’re mar­ried nine months or longer (check) Here’s a link to infor­ma­tion on this topic at the Social Secu­rity website.

Article Source:  Military.com
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The Federal Law that Awards Military Pay

If you are a typical civilian couple who is divorcing, you must primarily be concerned with the laws of the state in which you are divorcing. If you are a military couple, though, you will not only have to contend with your state laws, but you will have to incorporate federal law into your divorce decree. That law, signed on September 8, 1982, is the Uniformed Services Former Spouses’ Protection Act (USFSPA), Public Law 97-252 (10 U.S.C. §1408).

The USFSPA applies to all active duty, reserve/guard, and retired military, the U.S. Coast Guard, and members of the U.S. Public Health Service (USPHS) and the National Oceanographic and Atmospheric Administration (NOAA).

The USFSPA permits states to award up to 50 percent of the military member’s retired pay (or up to 65 percent including court-ordered child support) in a divorce. This does not mean that 50 percent is the maximum award, nor that 50 percent is always awarded. It only means that the finance center will only pay out up to half of the retired pay. The court may award more, which then becomes the responsibility of the service member to pay.

The original intent of the USFSPA was laudatory and remains so: to provide, in a divorce action, for the faithful spouse who had loyally supported the military member’s career. The USFSPA has created mass confusion in the state courts, primarily due to the myriad of interpretations of the USFSPA nationwide. If you are aware of these problems, you can save yourself time and grief and, even more important to your financial future, money, by educating yourself on this law.

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Myths that Have Caused Problems in Military Divorce

Military couples have found themselves in financial trouble and drawn-out negotiations because of their misbeliefs regarding the USFSPA. One misbelief is that the award of retired pay is “it” –meaning, there can’t be any other award for alimony or maintenance. On the contrary, the award of military retired pay may be in addition to child support and alimony or maintenance.

Another very prevalent myth is the 10-year rule. Many think you must be married for at least 10 years for the court to award a share of the military retired pay. The marriage need last only minutes (long enough to say “I do”) in order for the spouse to be entitled to a share of the military retired pay. However, the marriage needs to have lasted at least 10 years and overlapped with the service member’s creditable military service for 10 years for the defense finance center to make the payment directly to the former spouse.

Many spouses think that if they were the beneficiary of the Survivor Benefit Plan (SBP) while married, that they will remain so upon divorce. This is not true, and SBP is a mutually exclusive benefit that must be addressed in the divorce (whether it is to continue with the current spouse or not).

Despite the original intent of the law–to reward faithful spouses who loyally supported the service member’s career–the USFSPA as it is applied today ignores fault, merit, need, ability to pay, or respective financial circumstances. In short, if the service member spent seven years as a prisoner of war, and the spouse files for divorce and wants half of the community property “earned” while the service member suffered at the bands of the enemy, then the spouse can so request it and the courts can so award it.

Lastly, many are under the impression that the USFSPA is a fairly recent law that awards a share of military retired pay in divorces. The truth is that the states have always had the authority to treat this marital asset just like any other marital asset. (What the USFSPA did was to permit the states to classify military retired pay as property, as opposed to income. Individuals married to military members have always had (and still do) access to all the remedies and protections available to non-military couples in divorce court.

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Alimony in South Carolina-How do Judges Decide?

In South Carolina, alimony is considered a substitute for the support normally incidental to the marital relationship. Spence v. Spence, S.E.2d 683, 684 (1973). “Generally, alimony should place the supported spouse, as nearly as is practical, in the same position he or she enjoyed during the marriage.” Allen v. Allen, 554 S.E.2d 421,(Ct. App. 2001).  A recent South Carolina Supreme Court case discusses these issues in detail, Crossland v. Crossland.

In deciding whether to award alimony, the family court must consider and give appropriate weight to the following factors:

(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce . . . ;

(2) the physical and emotional condition of each spouse;

(3) the educational background of each spouse . . . ;

(4) the employment history and earning potential of each spouse;

(5) the standard of living established during the marriage;

(6) the current and reasonably anticipated earnings of both spouses;

(7) the current and reasonably anticipated expenses and needs of both spouses;

(8) the marital and nonmarital properties of the parties . . . ;

(9) custody of the children . . . ;

(10) marital misconduct or fault of either or both parties . . . ;

(11) the tax consequences to each party as a result of the particular form of support awarded;

(12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and

(13) such other factors the court considers relevant.

An award of alimony rests within the sound discretion of the family court and will not be disturbed absent an abuse of discretion. Dickert v. Dickert, , 691 S.E.2d 448, 451 (2010).

The important thing to remember is that the Judge decides if your case meet the qualifications for alimony.  There is no absolute right to alimony, even when the other spouse is responsible for the break up of the marriage, such as in the cases of adultery, physical cruelty, etc.  Preparation is the best thing to help improve your changes of getting alimony, if you think you qualify.  And remember adultery is an absolute bar to alimony.

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The Basics of Filing for Divorce in South Carolina

If you’ve decided to file for divorce, you may have questions about the process. This article provides a basic overview of how to obtain a “simple divorce” (No Fault divorce) in South Carolina.

If you do not meet all of the following requirements or you have specific questions about your divorce case, you should speak with an experienced family law attorney in your area. A court or judge can’t answer questions about your particular case or legal rights.

 

In South Carolina, you may file for a simple divorce without the help of a lawyer if you meet the following:

 

  • you or your spouse has lived in South Carolina for at least one year prior to filing for your divorce, or you and your spouse both live in South Carolina and have lived there for at least three months before filing for divorce

 

  • you are filing on the ground of one year continuous separation without living together at any point during that year

 

  • you have no martial property or marital debt, or you have reached an agreement on how to divide the marital property and/or debt, and

 

  • you have no children with your spouse and none are expected, or you have minor children together and have reached an agreement about custody, visitation and child support (and the child support agreement meets the minimum requirements set by South Carolina Child Support Guidelines).

 

If you meet all of the above requirements, then you must follow the steps below to fill out the forms for a simple divorce.

 

Preparing Your Forms

 

To begin the process, fill out the following forms:

 

 

All of the forms will have blanks for “plaintiff” and “defendant.” The person asking the court for a divorce is the “plaintiff,” and the responding spouse is called the “defendant.” The area with your name and your spouse’s name is called the “caption.” Some of the forms must be signed while you are in front of a Notary Public. Do not sign the forms that require notarization until you are physically in front of a Notary Public.

 

After completing all the forms, make at least two copies of everything. The court will keep one, you will need one for your records, and you will need a copy for your spouse.

 

Filing Your Forms

 

The next step is to file the papers with the Clerk of Court, Family Court Division. You may choose one of three locations to file:

 

  • in the county where you and your spouse last shared a residence

 

  • in the county where your spouse lives at the time of filing, or

 

  • in the county where you live, if your spouse is not a resident of South Carolina.

 

If you’re filing in South Carolina but do not live in the state, you must file in the county where your spouse (the defendant) lives.

 

The Clerk of Court will charge a fee to file the papers. If you are unable to pay the fee, you may file a Motion and Affidavit to Proceed In Forma Pauperis. If your Motion is approved, you will not have to pay filing fees or Sheriff’s Office service fees (if applicable).

 

Serving Your Forms

 

After filing your forms with the appropriate Clerk of Court, you will need to “serve” (deliver) a copy of the Family Court Cover Sheet, Certificate of Exemption, Summons for Divorce, Complaint for Divorce and the Financial Declaration Form to your spouse. There are four ways to serve your spouse:

 

  • U.S. Mail (send certified mail, restricted delivery, return receipt requested; receipt must be signed by your spouse; you must also complete an Affidavit of Mailing, sign it in front of a notary and file a copy, along with the green card, with the Clerk of Court)

 

  • personal service (your spouse must sign an Acceptance of Service form and you must file a signed copy with the Clerk of Court)

 

  • Sheriff’s Office (Sheriff’s office must complete a notarized Acceptance of Service form after delivery and you must file a copy with the Clerk of Court), or

 

  • Private Process Server (this is a paid private service that involves a third party hand-delivering the paperwork to your spouse).

 

Court Hearing and Final Divorce

 

After you’ve served your spouse, count ahead 35 days on the calendar (do not count the day your spouse was served) and mark the date. On that day, if you have not received a formal response or “Answer” to the divorce papers from your spouse, or if you received an Answer that agrees with everything in your complaint, you may proceed with the final divorce. If your spouse’s Answer disputes or contests any part of your request, you’ll need to hire a lawyer to proceed with your case.

 

If you are proceeding without opposition from your spouse, then the next step is to complete a Request for Hearing and an Affidavit of Default for Divorce. When you file these forms, you must also file a copy of your return receipt or other affidavit showing that your spouse was properly served (unless you’ve already filed it).

 

After completing these filings, the Clerk of Court will mail you a Notice of Hearing with your court date. After you receive this Notice of Hearing, you must mail a copy to your spouse, by certified mail, return receipt requested. After your spouse mails back the signed green card, you must complete an Affidavit of Service by Mailing in front of a Notary Public. If the envelope and card are returned unsigned, take the returned envelope to your divorce hearing.

 

To prepare for the hearing, you must complete a Final Order of Divorce and a Report of Divorce or Annulment. You must also have one person testify at the hearing who has personal knowledge that you and your spouse have lived separate and apart for one year. On the day of your hearing, bring the above documents to court, along with your witness.

 

During the hearing the judge will ask questions about your documents, including questions about your marriage and separation. You may use a sample script to prepare yourself. After granting your divorce, the judge will sign the Final Order of Divorce – your divorce is not final until the order is signed and filed with the Clerk of Court. The judge may also ask you to complete a Judgment in a Family Court Case.

Article provided by: by Shannon Hurley, at DivorceNet.com

Call Metts Law Firm, LLC at 803-929-0577 if you need legal advice about your particular case, or visit our website at www.MettsLawFirm.com.

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How does SC determine a Spouse’s Income? How does SC Determine Alimony?

In a recent South Carolina case, Burgess v. Burgess, the Court of Appeals case addressed multiple issues, most notably the family court’s award of alimony to the wife based in large measure to the court’s imputing an annual income to the husband of $100,000.  The Court of Appeals reversed on this issue, finding that the family court failed to take into consideration the “…prevailing job opportunities and earning levels in the community” (“Here, as in Sanderson, the family court failed to address the necessary factors delineated by the Guidelines concerning the prevailing job opportunities and earning levels in the community.  Because the family court failed to address all of the factors required by the Guidelines, and because there is nothing in the record to suggest how the family court arrived at the annual income figure of $100,000 to be imputed to Husband, we remand the issue of Husband’s imputed income to the family court pursuant to Sanderson for reconsideration based upon the factors set forth in the Guidelines”).  The award of alimony and attorney’s fees was also remanded. Read the entire case here.

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Is a Spouse’s Business considered Marital Property? What is transmutation?

This issue is discussed in a recent South Carolina Supreme Court case, Pittman v. Pittman. In this case, the South Carolina Supreme Court addressed the issue of whether one spouse’s land surveying business would be considered marital property subject to equitable division.  The final decision was that the husband’s land surveying business had been transmuted into a marital asset because “the evidence preponderates in support of a finding that the parties intended the land surveying business to be the common property of the marriage”.  Additionally, the husband argued that, even if the business was transmuted into a marital asset, he would still be entitled to receive a “special equity” in the value of the business as of the date of the parties’ marriage.  Justice Kittredge disagreed, stating “(w)hen property is determined to have been transmuted, the entire property, not just a portion of the property, is included in the parties’ marital property which is thereafter apportioned by the family court using the criteria set forth in [the equitable apportionment statute]. … Indeed, once the Business was determined to have been transmuted, the full value of the Business was appropriately included in the marital estate”. [Note: the basis for the modification is that the family court judge had considered the wife’s premarital contributions in the operation of this business as another “transmutation factor”, and the opinion stated that “(T)o be clear, the family court committed an error of law in relying on Wife’s premarital contributions to the the Business in support of its transmutation finding [defining the term “marital property” as “all real and personal property which has been acquired by the parties during the marriage“]”.  Read the entire decision here.

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Can assignee of mortgage and note recover surplus foreclosure funds?

“The S.C. Supreme Court held that the assignee of a note and mortgage may recover the surplus funds generated by the foreclosure of a prior mortgage even if it was not a lienholder of record at the time of the sale, per Rule 71(c), SCRCP. The court further clarified its decision in Matrix Financial Services Corp. v. Frazer, 394 S.C. 134, 714 S.E.2d 532 (2011), and held that because the mortgage was filed before Matrix, whether it was closed without the services of an attorney would not bar the assignee from receiving the surplus funds.”

BAC v. Kinder, read the full opinion here.

 

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