My husband and I recently divorced in July 2009. He is in the Army Reserves. Out of guilt, shame and other emotions, I signed and agreed to everything he had listed in the divorce papers. We used a mediator. I signed away the house and all retirements. I recently read an article that states that I am entitled to 50% of his military retirement because we were married more than 20 years. Is it too late since the divorce was final July 30?
The Uniformed Services Former Spouses’ Protection Act (USFSPA) is a federal statute that allows state courts to consider military retired pay as community property that can be divided for purposes of divorce. Community property includes all property earned and acquired by both spouses during the marriage. In order for the USFSPA to apply, your spouse must have been in the “uniformed services,” otherwise known as the Army, Navy, Air Force, Marine Corps, or Coast Guard. Some officers of the National Oceanic and Atmospheric Administration and the Public Health Service are also eligible. Additionally, the USFSPA requires that the former spouse have been married to the military spouse during at least 10 years of that spouse’s service which was creditable for retired pay. So if your husband worked in the uniformed services for at least 10 years during your marriage and that work counted toward his retirement, you may have been eligible to receive a share of your husband’s military retirement in your divorce. However, it does not automatically entitle you to it.
If you and your husband were not able to agree on how the community property should be divided in the divorce, the court would have been charged with reviewing the facts of your situation and would have equitably divided the property. Pursuant to the USFSPA, your husband’s military retired pay could have been subject to division. However, because you and your husband entered into a property settlement agreement, the court did not have to divide any of your property but rather only had to approve the settlement. In uncontested divorces, the court will usually approve the agreement if it is generally fair and it believes that the agreement was entered into by both spouses without fraud or coercion. Remember that the court will not make sure that you each got a share of every item, but instead will review the agreement as a whole. Once the divorce decree has been issued, it is very difficult to argue that it should be modified. Typically, in order to modify a divorce decree, there would have to have been some sort of fraud or duress that occurred when you were agreeing to the settlement. Otherwise, the court needed to have made a legal error or abused its discretion. Because the process of appealing a divorce decree can be very complicated, it is highly recommended that you at least consult an attorney to ensure that you are aware of all the options available to you so that you can choose the best possible course of action. – The Divorce.com Team
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