I am sitting in the annual Board Certification Review Seminar and one of the speakers just said that you should have separate peadings in order to claim an interest in retirmeent pay. the premise for this is that retirement benefits are covered by Fla. Stat. 61.076 rather than Fla. Stat. sec 61.075 as most assets and liabilities are. I am not sure I agree with that; however, for years I have been using the following pleading to secure a division of retirement pay and you are welcome to use the same:


"The Husband has a retirement/pension in the form of military retirement benefits with the United States Army which is subject to equitable distribution and the Wife requests that the Husband's military retirement benefits be equitable distributed by this Court so that she is awarded fifty (50) percent of those benefits pursuant to the Uniformed Services former Spouse's Protection Act and Pastore v. Pastore, 497 So.2d 635 (Fla. 1986) and the Florida Equitable distribution Statute."

I believe this will do the job quite nicely.

Joe Hood
Board Certified Marital and Family Lawyer
709 West Azeele Street
Tampa, FL 33606

2009 MILITARY LAW AND LEGAL SYMPOSIUM

2009 MILITARY LAW AND LEGAL SYMPOSIUM

Florida Family Law Section - June 3, 2009 - Tampa Airport Marriott

Agenda

8:15 - 8:30 Introduction

8:30 - 10:00 Dividing Military Retirement Benefits
Joseph Hood
813-254-5554
jchpafl@verizon.net

10:00 - 11:15 Service Members Civil Relief Act & Jurisdictional Issues
Mark Sullivan
919-832-8505 mark.sullivan@ncfamilylaw.com

11:15 - 12:00 Representing the Military Service Member in Dissolution of Marriage Actions
Donald Decort
813-254-0156

\12:00 - 1:15 Lunch

1:15 - 3:00 Top 15 Mistakes in Dissolution of Marriage Actions Involving
Military Personnel
Peter Cushing
407-353-3501
cushing12@aol.com

3:00 - 3:15 Break

3:15 - 5:00 Parental Responsibility and Parenting Plan/Timesharing Issues in the
Military Divorce To Reflect the Change in the Law
Patricia Apy
732-219-9000

The following language is no longer available for distribution of retirements in Florida. See Lawrence v. Lawrence, 904 So. 2d 445, 446 (Fla. 3d DCA 2005).

The Former Spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is 125.5 months of marriage during the member's creditable military service, divided by the member's total number of months of creditable military service.

Subsequently, the Second District issued Oglesby v. Oglesby, 921 So.2d 849 (Fla. 2nd DCA 2006), followed the above approach by saying:

“Third, the Former Wife is only entitled to that portion of the Former Husband's pension that accrued during the marriage. See Lawrence v. Lawrence, 904 So. 2d 445, 446 (Fla. 3d DCA 2005) (“The Florida Supreme Court has held that the valuation of a vested retirement plan is not to include any contributions made after the original judgment of dissolution.”) (citing Boyett v. Boyett, 703 So. 2d 451 (Fla. 1997)). We find the phrases “until such time as his retirement benefits are fully vested,” “prior to obtaining full retirement benefits,” and “total sum of retirement benefits she would have otherwise received had Husband remained an active member of the military” are subject to varying interpretations and could be read to suggest otherwise.

In light of the foregoing is the only possible way to avoid continued appreciation post judgment is though the use of a dollar figure?

JOSEPH C. HOOD, ESQUIRE
Board Certified in Marital and Family Law
709 West Azeele St., Ste. B
Tampa, FL 33606
813-254-5554
Fax: 813-254-5554
E-MAIL: jchpafl@verizon.net

10 U.S.C. Sec, 1408

Is 10 U.S.C. Sec. 1408 really fair in the way it determines disposable retirement pay? Why should disability pay continue to be a deduction in light of the recent concurrency legislation that has begun to allow veterans to receive both disability and retirement pay under certain circumstances? Did the military divorce business jut get more complicated or is concurency just what the doctored ordered to fix the inequities of the Former Spouse's Protection Act? How do you divide a military retirement in a divorce without allowing a continued appreciation of the non-participant spouse after the dissolution. These are just some of the issues we will be discusssing on this blog. I hope to have some of the finest attorneys from around the contry contributing to this blog. I will look forward to hearing your thoughts

Joseph C. Hood, Esquire
Board Certified in Marital and Family Law
709 West Azeele Street, Ste B
Tampa, FL 33609