Pension


#1

Dear badchoice:

Greetings. What a marvelous question. My answer is “it depends.” I would argue that the military pension income would contribute to the calculation of child support. I may also argue that the military pension may contribute to determining alimony, but only if the other spouse was not entitled to a division of the same. There would be other factors also.

Yes, I think that the other court determination would affect us here, as we have to give orders from other courts good faith. Timing of the military pension is always an issue, but I would have to see the time frame for a better determination. Best of luck!

Janet L. Fritts
Attorney at Law
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
NCDivorce.com
919-787-6668

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#2

Thanks for your response. For further enlightenment, previous divorce state (NE) ruled under Former Spouses law (NE is a free-love state–no fault divorce no matter what) that a division of retired pay, being personal property, was required upon retirement, based on years of marriage and service to the date of divorce. Of course, that monthly payment started seven years later after I retired. Current marriage started 14 days before I retired (1997), and as I read it, current spouse is not enitled to the separation of pay, but…

Separation from current marriage (one of convenience) is near, if current course of relations ( or lack there of ) continues without counseling. Should paternity be proved (ie., DNA tests) before separation, or await direction of the court? Child was born after retirement, but the basis for the marriage was the pre-marital pregnancy.

If paternity is challenged, would the basis for child support payment include the military pension, or would the determination of paternity be the entering arguement for including or excluding pension? If so, how much of the pension would be included – total as defined by pay order and law, or the net amount that reflects the division of retired pay, or a portion there of based on the amount of time married?

I have no objection to child support. I just want to know what sort of arguements must be used.

If pension is included, would the the same arguement hold true for any current or future 401K holdings/earnings held by either or both spouses?

Thanks again!


#3

Dear badchoice:

Greetings again. I doubt she will get any of your retirement pay in the property distribution from the information you provided below. Now, I suggest that you separate, then challenge paternity when she files for child support. I would wait to pay child support until the paternity is challenged.

I believe that your retirement pay will be used to calculate child support, if you find that you are the father.

Also, I would retain an attorney ASAP, since challenging paternity of a child “born” during the marriage (even if conceived before) is an ardurous task. Best of luck!

Janet L. Fritts
Attorney at Law
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
NCDivorce.com
919-787-6668

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#4

When considering alimony and/or child support, does the amount of a military pension payment being recieved contribute to the total income of either/both spouses? Is the decision affected if a previous out of state court ruled the pension was personal property in a separate and unrelated divorce action? Pension was effective 20 days after date of current marriage–will that be an issue?