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Courts rule on divorces both military and civilian but there are times when one or both parties disagree with the court’s ruling and so appeal. They may not succeed and they certainly will have to pay certain costs in making their appeal.
Here are some issues which have prompted an appeal in the past.
The amount of money awarded to the non-military spouse. It seems incredible but the Congress legislation which deals specifically with this issue does not stipulate a formula to enable the court, the couple or anyone to work out how much of the retiree’s pay goes to the spouse. How much is the military person earning before the court decides on what percentage goes to the spouse? Some courts work on the income at the time of the retirement, some courts use the date of the divorce and some have a combination of the two. Easy to see why some folk will appeal.
Now the federal legislation does stipulate that disability pay is not to be divided and must be deducted first before calculating any amount awarded to the spouse. But some courts have found a way around the federal law and this has caused controversy and heartache. Many believe disability pay is hard enough to be awarded and may have caused great suffering for the military member to get in the first place. Nevertheless there are appeals over a court’s ruling when it comes to the issue of disability pay.
Remarriage is a minefield and the cause of several appeals. Consider these examples as a way of illustrating the difficulties faced by courts and couples. A spouse is granted a part of the retirement pay of a former military spouse. The civilian spouse then re-marries. Should the civilian spouse continue to receive a part of the military retirement income? What if the retired service member re-marries and starts a new family? The retirement pay may be needed to feed and clothe the new family. The former spouse would argue that she [it is almost always a she] was a loyal spouse for 20 years or more and is entitled to that part of the retirement pay.
The whole issue is both emotional and controversial and has been the cause of many appeals. How courts deal with this and other issues is tricky and there seems to be no set pattern due mainly to the facts that the federal legislation is not specific on certain issues and each state is independent and rules accordingly.
Then there is the issue of tax. Is retired pay income? The IRS rules it is and taxes it. This introduces another element to the controversy. But federal law also refers to retired pay as property which attracts a different rate of tax.
If all this seems confusing it is only because it is. Your best way forward may be to receive expert advice form an experienced military divorce lawyer.
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