In Florida, pursuant to FS See Diffenderfer and Pastore cases. For purposes of classification as marital or non-marital, in the absence of a valid separation agreement, section F. The cut of date is the date of the filing of the petition for dissolution of marriage. Willman v. Willman, So.
The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Emphasis supplied. The valuation date is the discretionary date chosen by the trial judge to do equity, with the limitation being the date of the final judgment of dissolution of marriage.
Rao-Nagineni v. Rao, So. Boyett v. Boyett, So.
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Valuation of retirement benefits is fact-intensive and varies depending upon the plan, and the trial judge must determine the equitable valuation with the limitation being the valuation is not to include post-marriage contributions. Boyett at See also Deloach v. Deloach So. Same: Trant v. Trant, So.
Since promotions are based on a period of service that may be several years in length, it may be equitable to value the pension as of date of final judgment. If the member was recommended for promotion, it would appear that the promotion is the result of marital labor. A fixed dollar amount is simple but has the disadvantage of not including automatic cost of living increases, COLA. A separate check would have to be sent say annually by the retired member to a former spouse representing COLA or front loaded in the settlement.
A percentage is advisable if all facts are known and the member is retired, in pay status. In that event COLA is automatic. But a percentage of what? What is the asset that is being divided?
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Or, how is the military pension defined? Debts owed to the US Government, 2. Amounts waived to receive a service connected disability, 3. Survivor Benefit Plan Premium for the spouse getting a share of the pension. Each side will pay their own taxes and be issued a at the end of the year. Each side will fill out a tax withholding form for Defense Finance and Accounting Center. Formula Orders- DFAS has approved certain formula orders-in general the item that is not known when the member is on active duty and the pension is not in pay status is the denominator of the fraction; i.
Such litigation can be time consuming and expensive.
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The wife is entitled after the reduction for the SBP premium to a Not a fixed dollar amount; 2. Not a percentage; 3. Disposable retired pay not mentioned; 4. E-7 pay scale-what year? Is it or the date the parties signed the agreement in ? What about enhancements to the pension between and the year when the parties signed the agreement? This language was rejected by Defense Finance and Accounting Service and the parties dispute the meaning of the language. Motion For Summary Judgment denied. Neither party understands the language and the court suggested hiring an expert.
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An independent action could be filed to set aside the entire marital settlement agreement. Eventually this case was settled. THIS CAUSE came before me for trial and the court having taken the testimony of the parties and received documents into evidence finds and decides as follows:. The parties were married on June 1, Their marital status was terminated on January 1, by final order of this court entered in Orange County, Florida.
This order is entered incident to the aforementioned order.
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The parties were married for a period of ten or more years during which time the petitioner performed at least ten years of creditable military service. This court has jurisdiction over the petitioner by reason of choose those that apply A his or her residence, other than because of military assignment, in the territorial jurisdiction of the court, during the divorce, dissolution, annulment, or legal separation proceeding, B his or her domicile in the territorial jurisdiction of the court during the divorce, dissolution, annulment, or legal separation proceeding, or C his or her consent to the jurisdiction of the court.
Percentage awards include cost of living allowances. Active duty hypothetical calculated as of time of division, for all members, regardless of service entry date. There have been issued regulations significantly affecting former spouse payments from military retired pay and forms issued. Alimony: Clarified that the definition of alimony includes attorneys fees, interest, and court costs. Alimony arrearages cannot be collected from retired pay. Child Support: Clarified that the definition includes costs for health care, arrearages, interest, penalties, and related relief.
Creditable Military Service: Clarifies that CMS means service counted towards the entitlement to receive military retired pay. Administrative Appeal Provision: If the retired member can show that the court order attempting to divide his retired pay is defective, or has been amended, appealed, or set aside, DFAS will not start the payments. Disposable Retired Pay Deductions: Clarifies that only those deductions authorized by law will be honored such as amounts owed the United States, fines and forfeitures ordered by a court-martial, amounts waived to receive compensation under Title 5 or 38 of the United States Code, SBP premiums for the spouse applying for a retired pay award.
Provisions providing for other deductions such as for private life insurance premium are unenforceable. By doing so, the former spouse will lose from her portion of the pension, one half of the amount waived by the veteran to receive his tax free disability check. The former spouse will cry foul at the reduction of her share post judgment, which constitutes a unilateral modification of the property settlement post-judgment by the member.
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Abernethy v. Fishkin , So. In the event there is no indemnification provision, at least one Florida court has granted relief to the non-military spouse. See Longanecker v. Longanecker, So. However, if the member has retired overseas, there may be no effective solution. For certain concurrent receipt cases, there is a solution for the non-military spouse.
Bandini v. A domiciliary of the state; 3. He consents to jurisdiction as by signing a marital settlement agreement or asking for affirmative relief in state court. In a case where the retired member fails to participate in any fashion in the case and a default is taken, and the pension is distributed pursuant to the default without affirmative proof of pension jurisdiction, a most interesting problem arises.
In short, he may prove he is a New York resident. Should this argument succeed, the wife will be out of luck and have a pension division order from Florida that is not enforceable. Normally when one divides a military pension, or any pension for that matter, we divide it if, as, and when the pension participant receives it.
Deloach , So. The so- called Deloach formula, which is not mandatory is as follows:. It will also award to the non-military spouse non-marital enhancements to the military pension based upon time in grade and promotions, which under Florida law, are considered non-marital. In Florida, the amount of a retirement plan available for equitable distribution may not include any contributions made after the date of the original judgment of dissolution of marriage.
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Boyett , So. Therefore, amounts attributable to time in grade and promotions which accrue after dissolution should be excluded from equitable distribution. Lawrence v.
Lawrence , So. These amounts may not be insignificant. For example, according to the Retired Military Almanac , a retired army Lt. Thus failure to properly value a military pension can be a costly error for the military member or an unwarranted benefit for the receiving spouse. This fraction excludes non-marital promotion and longevity enhancements consistent with Boyett and Lawrence.