by Administrator | Sep 28, 2016 | Military Divorce
When someone is married to a service member, the question of dividing the service member’s pension comes up in divorce cases. Often the non-service member spouse is told that they are not entitled to any portion of the military pension if they were not married to the service member for 10 years which overlap with that service member’s 10 years of military service.
This is not the case and often that non-service member spouse loses out on quite a bit of money that he or she is otherwise entitled to because of this widely held misconception. The ten year rule is simply a prerequisite that must be met in order to allow the Defense Finance and Accounting Service (DFAS) to enforce and pay the non-service member spouse his/her share of the military pension.
When there are ten years of marriage that overlap with ten years of service, the non-service member spouse may receive payment of his or her share from DFAS. But what if the parties in a divorce action do not meet the “ten year rule?” Is the non-service member spouse still entitled to a portion of the military pension?
Yes, the non-service member spouse is entitled to a marital portion of the retirement even if the “ten year rule” is not met. However, DFAS will not pay and enforce the order dividing the military pension. Unfortunately, if this is the case, the non-service member spouse must receive payment and/or enforce the order dividing the military pension by other means.
If you have questions regarding the “ten year rule” and/or how to divide the military pension by other means, please contact our Seattle divorce lawyers today at 206-728-8000 or 425-DIVORCE.
by Administrator | Sep 28, 2016 | Military Divorce
If you are a military service member, you may be entitled to a “stay of proceedings” under the Service Members Civil Relief Act (SCRA). A “stay of proceedings” simply means a “delay.” In other words, while you are serving in the military, if your ability to defend or prosecute the lawsuit is materially affected by your active duty military obligations, you may be entitled to “delay” the action, without penalty, so that you can concentrate on fulfilling those obligations.
Remember; however, that nothing in the Act states that a stay of proceedings applies to every aspect of the case. The Court may determine what issues are stayed and what issues are not. For example, the Court may “stay” the division of property and debts, but, not child support, meaning that you may still be obligated to pay child support even while protected under SCRA.
In addition, protection under SCRA covers other areas that may be relevant in your family law matter such as obtaining an interest rate reduction for a loan or other obligation and preventing eviction from a landlord. You may also be able to terminate a lease early and may be able to prevent a lender from foreclosing on a mortgage or deed of trust.
Whether your case will be “stayed” under SCRA is discretionary with the Court. The question of how does your service “materially affect” your ability to defend or prosecute is the most relevant question the Court will ask. You will certainly want a very good and experienced attorney on your side to help you make this case.
You also want to keep in mind that it is not always the best choice to delay the lawsuit. A wise attorney will be able to help you decide whether doing so is in your best interests by considering a number of factors such as possible contempt citations, possible accrual of arrears, complying with discovery requests, etc. You will want to speak to an attorney that has experience and knowledge in this area of the law. If you are considering protection under SCRA, please feel free to contact one of our experienced attorneys at Tsai Law Company in order to speak to them about this issue.
A. Scott Marlow, Esquire
