Military Spouses Seeking Indiana Divorce Require Special Consideration

In military families, we know that spouses endure just as much as the soldiers. helmet.jpg
Indiana divorce attorneys also know that the rigors and stress of military life are sometimes simply too much for people to overcome. It inevitably tears them apart.

It’s true that not all Indiana divorces are the same, and when it comes to military families, special considerations must be made.

That was apparent in the recent Alaska Supreme Court ruling of Villars v. Villars. Of course, divorce law varies from state-to-state, but the general principle here remains the same.

In this case, the core issue was that of benefits. It was not a matter of if the military member’s former spouse was entitled to said benefits, but when.

Here’s what we know of the case, as provided in the Supreme Court’s 17-page opinion:

The Villars, Richard and Kathleen, were married in 1984. Eighteen years later, they filed for divorce. Throughout the course of their union, Richard had served in the U.S. Air Force, and then later in the Alaska Air National Guard.

The couple agreed, prior to signing off on the divorce, that each would get half of the marital estate. This included any retirement benefits that Richard may receive, should he receive them. At the time, it was expected that he would begin collection of these benefits when he turned 60 years-old, although this was never expressly stated in the signed paperwork. However, he began collecting them in 2009, at age 48.

When Kathleen learned of this, she took him to court, asserting that she was entitled to half of the benefits, per their divorce agreement. Her ex-husband, on the other hand, stated that she should not receive any portion of the benefits until after he turned 60, as was expected when they signed the paperwork.

The case was heard in the state’s superior court, which ultimately sided with Kathleen, saying that the divorce settlement was unambiguous, and the clear intent was that the ex-wife would begin receiving payments from the retirement benefit as soon as he began collecting them. The court ordered Richard to repay his ex 50 percent of the benefits he had thus far collected.

Mr. Villars appealed to the Alaska Supreme Court, saying that the lower court improperly modified the divorce settlement. However, the justices affirmed the lower court’s determination.

With military service, retirement benefits factor in a point system, which calculates when benefits can be paid out in a reservist system versus an active system. Richard had worked full-time up until the divorce and part-time thereafter. Those in the reservist system would generally still have to wait until age 60 to collect retirement benefits, while someone in the active system could begin collecting after 20 years, no matter how old he or she is. However, once an individual in the reservist system racks up a certain number of points, they are moved to the active system. This is what happened to Richard.

When his ex learned he began collecting, she filed a request to the Defense Finance and Accounting Service to request her portion be paid to her. That request was initially denied due to a technicality. When Richard learned she was trying to collect, he took her to court, saying she shouldn’t be allowed to collect until he turned 60.

Although the lower court indicated that the age factor was not specifically addressed in the initial settlement, it was clear that the intent of both parties at the time the agreement was signed was to split the benefits 50/50. The fact that Richard began receiving them early, the court ruled, should have no bearing on when his ex could begin receiving them.

In general, it’s important to properly claim retirement funds at the time of a divorce. An experienced divorce attorney in Highland, Gary or elsewhere in Northern Indiana can provide you with more detail.

Highland Family Law Attorney Burton A. Padove handles divorce matters throughout northern Indiana, including Gary, Hammond and Calumet City. Call Toll Free 877-446-5294.

Additional Resources:
Villars v. Villars, Justia Dockets

More Blog Entries:
Indiana Divorce: Does Adultery Matter? , May 10, 2012, Indiana Divorce Lawyer Blog